The opinion of the court was delivered by: Hon. Harold Baer, Jr., United States District Judge*fn1
Elias Nazario Fernandez ("Petitioner" or "Fernandez"), pro se, petitions pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence of 111 months imprisonment. He claims ineffective assistance of appellate counsel. For the reasons that follow, the petition is DENIED.
Fernandez was arrested on June 7, 2002. After meeting with the Government in several proffer sessions in which he admitted to the distribution of heroin and cocaine, Fernandez pled guilty on October 16, 2002 to a two-count superseding information, which charged him with (i) conspiracy to distribute one kilogram or more of heroin from early 1998 through 2002 in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), 846; and (ii) distributing and possessing with intent to distribute approximately 300 grams of heroin in violation of §§ 841(a)(1), 841(b)(1)(A). Fernandez entered his plea pursuant to a cooperation agreement in which the Government agreed to move for a downward departure pursuant to U.S.S.G. § 5K1.1 (hereinafter "5K1.1") if Fernandez, among other things, truthfully and completely disclosed all information regarding any matter into which the Government inquired. In early 2003, as the Government prepared for trial against Mayra Fernandez (Petitioner's daughter and co-conspirator), the Government learned that Petitioner had extensive drug dealings with his daughter, contrary to Petitioner's repeated statements during the proffer sessions. The Government then met with Fernandez and warned him that no 5K1.1 letter would be forthcoming unless Fernandez fully disclosed what he knew about his daughter's criminal activity. Fernandez refused to do so. As a result, the Government determined that Fernandez had been untruthful and did not submit a 5K1.1 letter on Fernandez's behalf.
On January 9, 2004, Fernandez appeared for sentencing. Pursuant to 21 U.S.C. § 841(b)(1)(A), Fernandez was subject to at least a statute-mandated minimum term of 120 months imprisonment. Sentencing was adjourned when Fernandez indicated that he was willing to engage in a safety-valve proffer pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. The safety valve provisions allow for a sentence below the statutory minimum and, in addition, mandates a two-level decrease in the Guidelines offense level, see U.S.S.G. § 2D1.1(b)(11).*fn2 In order to qualify for safety-valve relief, Fernandez had to, among other things, "truthfully provide to the Government all information concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan." U.S.S.G. § 5C1.2(a)(5). During his safety-valve proffer on January 13, 2004, Fernandez admitted that he had previously lied to the Government about the extent of his drug dealings with his daughter, and admitted that he had made regular purchases from her amounting to approximately thirteen kilograms of heroin. Fernandez again appeared for sentencing on January 26, 2004. He was found to qualify for safety-valve relief; however, unfortunately for Fernandez the new information he proffered about the additional drug quantities increased the applicable Guidelines offense level by two levels, which cancelled out the two-level benefit he received from the safety valve proffer. Accordingly, this Court sentenced Fernandez to 135 months imprisonment, the minimum under the then-binding applicable Guidelines range.
Fernandez appealed his sentence. While his appeal was pending, the Supreme Court in United States v. Booker, 543 U.S. 220 (2005), struck down those portions of the Sentencing Reform Act that made the Guidelines mandatory. The Second Circuit remanded all cases that were pending on direct appeal "for the more limited purpose of permitting the sentencing judge to determine whether to resentence, now fully informed of the new sentencing regime, and if so, to resentence." United States v. Crosby, 397 F.3d 103, 117 (2d Cir. 2005). Upon remand, Fernandez appeared for resentencing before this Court on August 23, 2006. For the reasons stated on the record, recognizing both aggravating and mitigating factors, I reduced Petitioner's sentence to 111 months imprisonment. Fernandez again appealed his sentence. As in Fernandez's first appeal, appellate counsel moved to withdraw, supported by a brief pursuant to Anders v. California, 386 U.S. 738 (1967), on the grounds that there were no non-frivolous issues on appeal. The Second Circuit granted the motion to withdraw and summarily affirmed this Court's decision on September 7, 2007.
Fernandez filed this petition pursuant to 28 U.S.C. § 2255 on September 3, 2008 and on April 3, 2009 moved to add his medical records as Exhibit A to his petition. The Government replied on August 17, 2009.
Under 28 U.S.C. § 2255, relief is provided on the ground that a prisoner is in custody in violation of the Constitution or laws or treaties of the United States. See Davis v. United States, 417 U.S. 333, 344 (1974). To prevail on a § 2255 claim, petitioner must show either that (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; or (3) the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255(b); see also Rosario v. United States, 625 F. Supp. 2d 123, 126 (S.D.N.Y. 2008).The statute further provides that if any of the grounds enumerated above are present, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).
A. Ineffective Assistance of Appellate Counsel
Petitioner seeks a writ of habeas corpus based on claims that he did not receive effective assistance of appellate counsel as guaranteed by the Constitution. See Pena v. United States, 534 F.3d 92, 94 (2d Cir. 2008). More specifically, Petitioner alleges that his appellate counsel was ineffective by failing to argue that (1) this Court imposed a sentence greater than necessary to comply with the purposes of 18 U.S.C. § 3553(a)(2) and (2) the sentence imposed exceeded the maximum permissible based on the facts to which Petitioner pled guilty.*fn3
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Wiggins v. Smith, 539 U.S. 510 (2003); Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005). Thus, to prevail on an ineffective assistance of counsel claim, the defendant must show that: (1) his counsel's representation fell below an objective standard of reasonableness; and (2) he was prejudiced by his counsel's deficient representation. See Strickland, 466 U.S.at 687; Brown v. Greene, 577 F.3d 107, 118 (2d Cir. 2009). The proper measure of an attorney's performance is "reasonableness under prevailing professional norms." Wiggins, 539 U.S. at 521. Prejudice is shown if, but for the deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different. Id. at 534.
This analysis applies where, as here, a habeas petitioner alleges appellate counsel was ineffective in moving to withdraw pursuant to Anders rather than pursuing a meritorious issue. See Smith v. Robbins, 528 U.S. 259, 285 (2000). In this context, the reasonableness prong of the ineffective assistance test requires that Petitioner show that his appellate counsel "unreasonably failed to discover non-frivolous issues and to file a merits brief raising them." Id. In other words, to succeed on the reasonableness prong "it is only necessary for [Petitioner] to show that a reasonably competent attorney would have found one non-frivolous issue warranting a merits brief." Id. at 288. In addition, however, Petitioner must demonstrate prejudice by showing "a reasonable probability that, but for his counsel's unreasonable failure to file a merits brief, he would have prevailed on his ...