The opinion of the court was delivered by: Dearie, Chief Judge.
Dexter Francis, an illegal alien from Trinidad in federal custody pursuant to the judgment of this Court issued April 5, 2000, moves pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence. Arguments based on Apprendi v. New Jersey, 530 U.S. 466 (2000), and Booker, 543 U.S. 220 (2005) underlie most of Francis's claims.
For the reasons set forth below, the motion is denied and the application is dismissed.
Following a trial before this Court in September 1999, a jury convicted Francis of eleven crimes, including racketeering and murder, relating to acts Francis committed or authorized as leader of a gang of drug dealers, the "Cool Operators," based in the Crown Heights section of Brooklyn. This Court sentenced Francis as follows (all concurrent): life terms on the racketeering, racketeering conspiracy, and substantive murder counts; ten years on each of the two murder conspiracy counts; twenty years on each of the two robbery conspiracy counts; and forty years on the marijuana conspiracy count. The judgment also imposes two terms of twenty years and one term of five years on the firearms counts, each to be served consecutively to all other counts. On December 22, 2000, the Second Circuit affirmed Francis's convictions in a comprehensive decision reviewing the underlying facts, few of which will require restatement here. United States v. James, et al., 239 F.3d 120 (2d Cir. 2000), cert. denied sub nom. Francis v. United States, 532 U.S. 1000 (2001).
The principal trial evidence against Francis was the testimony of cooperating co- defendants, who detailed Francis's leadership role in Cool Operators and in the "turf wars" that culminated in Francis's murder of Ken Pierre, and the murder of Gerard Griffith, which Francis personally ordered. See James, 239 F.3d at 121-22 (Second Circuit's view of trial record confirms this Court's first-hand observation). Francis did not testify or call witnesses on his behalf. Instead, given the extensive criminality of the cooperators, the principal defense strategy, as zealously advanced by appointed trial counsel Mitchell Golub, was to assail credibility. See, e.g. Tr. 1672-1713 (Golub summation). Accord James, 239 F.3d at 122-26 (discussing the centrality to Francis's defense of the challenge to cooperator credibility).
With respect to the single narcotics count (a marijuana conspiracy) at the heart of his several Apprendi- and Booker-based claims, Francis essentially conceded his guilt. In his summation on Francis's behalf, Golub began: "I started, in my opening statement, telling you that one thing that the government is going to show you, and we are not disputing it, is that my client was definitely involved in the selling of marijuana." Tr. at 1672. Golub argued to the jury that Francis was not guilty of the robberies, the murders, and the racketeering charged in the indictment, but conceded that, "[t]here's a separate marijuana conspiracy charge and we will talk about that afterwards, that there is possibly some measure of validity to." Tr. at 1673. Golub did return to the marijuana charge at the close of summation, stating only that "[m]y client may have been a marijuana supplier to Trevor John [the principal cooperator], among other people, but that was all. He wasn't part of [the] robberies . . .[or the] homicide[s]." Tr. 1712-13.
On the sole subject of possible consequence under Apprendi-drug quantity-the cooperator testimony revealed that Francis oversaw a network of at least six different "weed spots" where marijuana was sold, for periods ranging from five months to between two and three years, at the rate of a pound or more per day. See, e.g., Tr. 230, 271, 970-72, 974, 456, 477. See also Tr. at 223-27, 458, 1079-80 (describing transactions involving 12-15 pounds, 70-75 pounds, and 150-200 pounds of marijuana). Using straightforward arithmetic, this testimony established that Francis was responsible, through the organization he oversaw, for the distribution of more than 700 kilograms of marijuana.*fn1 Although Golub conducted vigorous cross-examinations on other matters, his questions did not address the testimony concerning the quantity of marijuana bought and sold by Francis's organization.
During the charging conference, the Court acceded to the express wishes of the defense not to include the jury instruction and interrogatory that the government had "request[ed] and recommend[ed]" on marijuana quantity. Tr. 1601-02. Although Golub did not explain his reasons, they were self-evident, given the considerable quantities of marijuana described in the testimony; encouraging jurors to dwell upon the image of well over one thousand pounds of illegal stores of marijuana could not have advanced his client's cause. Moreover, by essentially conceding his client's guilt on the drug charge, Golub no doubt hoped that he had enhanced his credibility in the eyes of the jury and that his plea to acquit his client on the other charges might thereby carry some greater glint of sincerity.
That it was the government who asked for the jury instruction on drug quantity was not unusual; to the contrary, it was the United States Attorney's standard practice in drug trials at that time, when the impact of the Supreme Court's ruling in Jones earlier that year remained uncertain, to "recommend[ ]" that drug quantity be determined by the jury "in order to avoid issues on appeal." Tr. 1601.*fn2 Although Apprendi and its progeny were yet to be penned, this Court was open to the government's request, see Tr. at 1601, but was offered no reason to grant it over the specific defense request to the contrary. See Tr. 1600-01.
Post-trial, the defense maintained its de facto no-contest stance toward drug quantity, having chosen not to address the subject either in the Rule 29 motion for a judgment of acquittal, see Golub Letter Motion, dated October 20, 1999, or in the objections to Francis's Pre-Sentence Report, see Golub Letter, dated March 1, 2000, even in the face of the PSR's estimates on marijuana quantities distributed by Francis's organization (based on the pound-per-day testimony), which totaled more than 700 kilograms. See PSR ¶¶ 22-27.*fn3 (Indeed, were this figure challenged as inexact, the miscalculation could lie only in its having under-represented the true amount of distributed marijuana for which Francis is responsible inasmuch as it takes account of sales at only four of the six weed spots; for the other two locations, Probation agreed that the amount was "unknown," PSR ¶ 22, and so did not include in the PSR total any estimate for the six years' worth of sales at those two sites. Id.
Relief "is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (internal quotations and citations marks omitted). The Court's discretion to grant relief under section 2255 is to be exercised sparingly, for such applications "are in 'tension with society's strong interest in the finality of criminal convictions.'" Elize v. United States, 2008 WL 4425286, *5 (E.D.N.Y. Sept. 30, 2008) (NGG) (internal citations omitted). See also Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993) ("the writ of habeas corpus has historically been regarded as an extraordinary remedy, a bulwark against convictions that violate fundamental fairness," and "[t]hose few who are ultimately successful [in obtaining habeas relief] are persons whom society has grievously wronged and for whom belated liberation is little enough compensation") (internal quotations and citations omitted).
Under the rules that "'the courts have established [ ] that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack,'" id. (internal Supreme Court citations omitted), only a limited category of claims is even cognizable under section 2255. See United States v. Pitcher, 559 F.3d 120, 123 (2d Cir. 2009) ("2255 petition cannot be used to relitigate questions which [sic] were raised and considered on direct appeal") (internal quotation and citations omitted); United States v. Frady, 456 U.S. 152, 165 (1982) (section 2255 may not be used to challenge the legality of matters that were not first raised on direct appeal); Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007) (same).
Additionally, "[w]here a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotations omitted). Claims of ineffective assistance of counsel, however, "may be brought in a collateral proceeding under § 2255 whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003).
Francis cannot avail himself of the Booker decision because his conviction became final nearly four years before Booker was issued,*fn4 and Booker lacks retroactive reach. Guzman v. United States, 404 U.S. F.3d 139, 141 (2d Cir.), cert. denied, 546 U.S. 1035 (2005). Francis's motion for leave to amend his 2255 application by adding a Booker claim is therefore denied.
Francis's request for leave to amend also asserts, however, that "[i]f the Supreme Court or any Circuit Court in the future make[s] [Booker] retroactive on collateral review," then Francis is hereby "reserving his rights pursuant to [Dodd v. United States, 543 U.S. 353 (2005)]." Mot. for Lv. to Amend, dated Dec. 23, 2005, at 1. But Dodd establishes no such right of "preservation." Instead, Dodd held that section 2255's one-year limitations period for invoking rights "newly recognized by the Supreme Court" begins to run from the date on which the Supreme Court "initially recognize[s]" the right, not the date, past or future, on which the right is declared to be retroactive. 543 U.S. at 358-59 (quoting the statutory language from the former ¶(6)(3), now ¶(f)(3), of §2255).
But, as just noted, the retroactivity of Booker is no longer an open question in this Circuit, see Guzman, and there is no conceivable basis for allowing Francis to lodge a barren, anticipatory Booker claim "just in case" Guzman is someday reversed. See, e.g., Brent v. United States, 2006 WL 1272591, *2 (N.D. Ohio May 9, 2006) (Dodd "does not stand for the proposition that a prisoner can file a collateral motion and then have it held in abeyance indefinitely pending a future decision[ ] giving retroactive application to a new rule of law"), vacated on other grounds, 2006 WL 1786134 (N.D. Ohio June 26, 2006) (denying 2255 relief).
A. The Core Apprendi Claim Based on Drug Quantity
Although Apprendi, too, lacks retroactive reach, Coleman v. United States, 329 F.3d 77, 81-89 (2d Cir.), cert. denied, 540 U.S. 1061 (2003), the decision does apply to the conviction obtained against Francis because that conviction did not become ...