The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
REPORT AND RECOMMENDATION -
Mentor Daija, currently an inmate at the Allenwood Low Federal Correctional Institution in White Deer, Pennsylvania, has brought this petition for a writ of habeas corpus under 28 U.S.C. § 2255. On February 19, 2008, Daija was sentenced to 180 months imprisonment after pleading guilty to drug conspiracy and gun charges. For the reasons set forth below, his petition should be denied.
A. Arrest, Indictment, and Guilty Plea
On May 4, 2007, Daija was arrested by police after he shot and killed an individual in an apartment building. See Memorandum of Law of the United States of America in Opposition to Petitioner's Motion to Correct, Vacate, and/or Set Aside His Sentence and Conviction Pursuant to 28 U.S.C. § 2255, filed Mar. 9, 2010 (Docket # 25 in 07 Cr. 609) ("Gov't Mem."), at 2-3. While in police custody, Daija made and signed the following statement describing what happened:
I came to New York from Canada about 4 months ago. I have been living at 215
E. Gunhill Rd Apt 3L with Altin and Alber. Today 5/4/07 Altin said to stay in the apartment and watch the marijuana. Altin told me someone is going to come pick it up. Altin came home from work and I told him I was going to get a sandwich.
Altin went to take a shower. I went into the hallway and two guys, 1 Spanish, 1 white are in the hall. The white guy grabbed me around the neck and put a gun to my head, the Spanish guy took the keys out of my pocket. They brought me back to the door and opened it. They said when we get in kill him. I hit the white guy and the gun fell. I picked up the gun and shot the white guy. The Spanish guy hit me in the back and knocked me down. He took the gun from me and tried to shoot me but there were no more bullets. The two guys ran toward the stairs. I went back in the apartment and took a black bag with money and a semiauto. I went to the stairs and saw the white guy and shot him again between the second and third floor on the stairs. Then I went up to the roof landing . . . [and] put the bag with money there. I then went back to apt 3L and went down the fire escape and over the fence into the cemetery where the cops grabbed me.
Statement by Mentor Daijia, dated May 4, 2007 (annexed as Ex. D to Gov't Mem.) ("Daija Statement").
Daija was indicted for the following offenses: (1) conspiracy to distribute marijuana in violation of 21 U.S.C. § 846; (2) possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 812, 841(a); (3) using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), (ii); (4) murder in violation of 18 U.S.C. § 924(j)(1); and (5) possession of a firearm by an unlawful alien in violation of 18 U.S.C. § 922(g)(5). Gov't Mem. at 2. At a hearing on September 6, 2007, defense counsel moved unsuccessfully to suppress Daija's statement to the police. See Gov't Mem. at 4 n.3; Affidavit of Alexei Schacht, dated Mar. 5, 2010 (annexed as Ex. L to Gov't Mem.) ("Schacht Aff.") ¶ 3. After failing to suppress his confession, Daija's counsel advised him that "in [his] opinion, . . . [Daija's] best option was to plead guilty because he was likely to be convicted at trial." Schacht Aff. ¶ 3.
Prior to his plea, the Government provided a letter pursuant to United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991), giving the Government's view of the maximum and minimum terms of imprisonment for each charge in the indictment. See Letter to Alexei Schacht, Esq. from Michael J. Garcia, dated Nov. 2, 2007 (annexed as Ex. E to Gov't Mem.). On November 8, 2007, Daija pled guilty before District Judge Jed S. Rakoff to Counts One, Two, Three, and Five of the Indictment. See Transcript of Plea Hearing Held on November 8, 2007 (annexed as Ex. F to Gov't Mem.) ("Plea Tr."), at 30.The Government agreed to drop the murder charge in exchange for Daija's pleading guilty to the remaining counts of the Indictment. (Plea Tr. 13).
During the plea allocution, Daija stated that defense counsel had discussed the guilty plea with him, that he was satisfied with his counsel's representation, and that no one had made any promises to him in order to get him to plead guilty. (Plea Tr. 5, 14). Daija also stated that he understood that by pleading guilty he was waiving his right to a trial and acknowledged that at trial he would have the right to testify in his own defense. (Plea Tr. 5-7).
Judge Rakoff then proceeded to review the elements of each criminal charge and stated the maximum and mandatory punishments for each. (Plea Tr. 7-11). Daija stated that he understood the elements and potential punishments for each count. See id. At one point, defense counsel, Alexei Schacht, voiced his disagreement regarding the applicability of a ten-year mandatory minimum sentence for the charge of using and carrying a firearm in connection with the drug conspiracy charge. (Plea Tr. 9-10). Defense counsel stated that "we would hope to convince your Honor at the time of sentencing that he should not receive the ten year sentence for having discharged a firearm, because that discharge was justified." Id. In response to Judge Rakoff's questioning, Daija stated that he understood that he still faced "the possibility of these maximum and mandatory minimums, depending on how [the court] resolv[ed] that issue." (Plea Tr. 10). Daija also stated that he understood that the possible sentence range under the guidelines in his case was between 168 to 210 months in addition to a possible mandatory minimum consecutive sentence of 120 months for the gun possession charge. (Plea Tr. 12). He acknowledged that "if anyone [had] made any kind of promise, or prediction, or estimate, or representation to [him] of what [his] sentence will be in this case, that person could be wrong, and nevertheless, if [he pled] guilty [he] would still be bound to [the court's] sentence." (Plea Tr. 13).
Daija admitted that he agreed with others to sell 26 kilograms of marijuana, which was being stored in the apartment he shared with his co-conspirators. (See Plea Tr. 15-16). He stated that he believed the two men who attacked him in the hallway intended to rob him and that he shot one, later identified as Timur Alkhazov, with Alkhazov's own weapon before retrieving a nine-millimeter semiautomatic handgun from inside his shared apartment and shooting Alkhazov a second time. Id. Daija admitted that the nine-millimeter handgun was kept in the apartment for "narcotics activity," (Plea Tr. 18), but claimed that he shot Alkhazov a second time because "[h]e made a move" that scared Daija, who panicked and shot him again, (Plea Tr. 19).
Judge Rakoff raised a concern that Daija had not allocuted to all of the elements of Count Three -- using and carrying a firearm during and in relation to or in furtherance of a drug trafficking crime. (Plea Tr. 21).*fn1 The Government responded that when Daija shot the victim for the second time with the nine millimeter he had retrieved from inside the apartment, it was not an act of self-defense but an intentional killing aimed at keeping the victim from returning to steal the marijuana. (Plea Tr. 26-27). Judge Rakoff then accepted Daija's guilty plea to Counts One, Two, Three, and Five of the Indictment, (Plea Tr. 30), and scheduled a hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979), cert. denied, 444 U.S. 1073 (1980). (See Plea Tr. 31-33).
B. Fatico Hearing and Sentencing
On December 13, 2007, Judge Rakoff began the Fatico hearing to decide whether (1) the court should impose the ten-year mandatory consecutive sentence for use of a firearm in furtherance of a drug conspiracy under Count Three of the Indictment and (2) the murder cross reference under the U.S. Sentencing Guideline § 2D1.1(d)(1) applied to Counts One, Two, and Five of the Indictment. See Transcript of Proceedings Held on December 13, 2007 and December 14, 2007 (annexed as Ex. B and C to Gov't Mem.) ("Hr."); United States v. Daija, 529 F. Supp. 2d 465, 466-67 (S.D.N.Y. 2008). The Government called two witnesses: Dr. James Gill, deputy chief medical examiner for Bronx County and Detective Michael Sinatra, an officer in the crime scene unit of the New York Police Department. (Gill: Hr. 2-30, Sinatra: Hr. 31-63). Dr. Gill testified that the victim was shot five times: in the head, the head and neck, the abdomen, the left forearm, and the left wrist. (Gill: Hr. 8-10). He testified that the two fatal shots to the head occurred in two separate locations: one in Daija's ...