The opinion of the court was delivered by: Trager, J.
After pleading guilty to conspiracy to import one or more kilograms of heroin pursuant to 21 U.S.C. §§ 963 and 960(b)(1)(A), Eric Amoateng ("petitioner") was sentenced to 120 months imprisonment. Petitioner now moves pursuant to 28 U.S.C. § 2255 to vacate or reduce his sentence. For the reasons set forth below, the motion is denied.
The charges against petitioner resulted from his involvement in a heroin importation conspiracy. On November 9, 2005, Customs and Border Protection ("CBP") officials uncovered packages of heroin in a cargo shipment at Newark International Airport ("Newark"). Id. ¶ 2. The name listed on the cargo was that of co-conspirator, Niil Okai Adjei ("Adjei"). Id. Adjei became acquainted with petitioner in Ghana when petitioner was running for a seat in the Ghanaian parliament. Id. ¶ 5. After winning election, petitioner informed Adjei that he needed his assistance to transport cocaine hidden in ceramic products to the United States.*fn1 PSR ¶ 6. Petitioner agreed to pay Adjei $2,500 for each kilogram of drugs he transported, which Adjei believed would be four kilograms. Id.
Petitioner shipped the cargo to a storage facility at John F. Kennedy International Airport ("JFK"). Id. CBP officials removed the heroin when the cargo passed through Newark and delivered the remaining cargo to JFK. Id. On November 11, 2005, petitioner and Adjei arrived at the JFK storage facility with a van and transported the cargo to American Self Storage in Staten Island, New York. Id. ¶ 3. On November 12, 2005, CBP officials arrested petitioner and Adjei when they returned to inspect their cargo. Id.
Petitioner was charged with conspiracy to import heroin and related offenses. While in custody awaiting trial, Adjei encountered petitioner several times at the Metropolitan Detention Center. PSR ¶ 11. During the meetings, petitioner tried to induce Adjei to take full responsibility for the importation scheme. Id. Petitioner indicated that Adjei would never see his family again if he refused to take sole responsibility. Id. Petitioner gave Adjei a letter that stated Adjei was entirely to blame for the drug shipment and instructed him to copy the letter in his own handwriting and submit it to his attorney. Id. Instead, Adjei gave petitioner's original letter to the government. PSR ¶ 12. The letter also contained inducements petitioner promised to Adjei for taking all the blame for the shipment, such as money to "retain a competent attorney," money in a Ghanaian bank account, a car, funeral expenses and the costs of running a farm. Id. ¶ 12.
Petitioner participated in proffer sessions with the government and entered into a plea agreement waiving his right to appeal or otherwise challenge his conviction if sentenced to 235 months or less. Plea Agreement ¶¶ 1, 4. Pursuant to the plea agreement, he pleaded guilty to one count of conspiracy to import heroin. At the plea hearing on March 19, 2007, Magistrate Judge Mann questioned petitioner about whether he understood that he was waiving his right to appeal by entering into the plea agreement.
THE COURT: I want to point out a particular provision of this agreement. Paragraph 4 provides in substance and in part that you agree not to file an appeal or otherwise challenge your conviction or sentence in the event the Court imposes a term of imprisonment of 235 months or below. The 235 months is the upper end of the range estimated by the Government without taking into account the additional one level reduction that the Government has agreed to move for in your behalf. Now under the terms of this agreement you and your lawyer are free to argue before you're sentenced that you should be sentenced -- you should not be sent to prison for as long as 235 months. You and he can make any and all good faith arguments as to why you should have a lower sentence. But because of the language in Paragraph 4, once Judge Trager sentences you, as long as he does not send you to prison for more than 235 months, that is the end of the matter. You've agreed that in that case you will not file an appeal or otherwise challenge your conviction or sentence. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
Before being sentenced, petitioner objected to the PSR's recommendation of a sentencing enhancement for obstruction of justice for his attempt to coerce Adjei into taking all the blame. However, his arguments were rejected, and the enhancement was applied. His offense level was also reduced by two and three levels, respectively, for safety valve and acceptance of responsibility. The resulting offense level was 35, which carried a sentencing range of 168 to 210 months. Sentencing Tr. 4. Nevertheless, petitioner was sentenced to the statutory minimum of 120 months. Id. at 13. Petitioner did not appeal his sentence. Patten Aff. 4-5.
Petitioner now brings the instant motion based on ineffective assistance of counsel at sentencing and post-sentencing. In particular, petitioner claims that counsel was ineffective for failing (1) to argue that petitioner was entitled to a downward departure pursuant to the safety valve provision of 18 U.S.C. § 3553(f), (2) to object to the obstruction of justice enhancement, which was applied, even though petitioner requested counsel to object to it and (3) to file an appeal regarding the non-application of the safety valve provision. Pet'r Mot. 4-7. In support ...