In October of 2007, petitioner pleaded guilty before this Court pursuant to a written plea agreement to one count of an indictment initially filed in the Eastern District of New York ("Eastern District")(in case 07 Cr. 927*fn1 ) and one count of an indictment filed in the Southern District of New York ("Southern District")(in case 06 Cr. 985), charging him, respectively, with conspiracy to commit money laundering and conspiracy to commit extortion.
In March 2008, after a one-week adjournment of sentencing sought by the Government, petitioner's counsel requested that petitioner's sentencing be adjourned indefinitely because petitioner had recently been indicted again in the Eastern District. The request was granted. (See Endorsed Memo., Mar. 3, 2008.)
In July of 2008, petitioner pleaded guilty pursuant to a written plea agreement before an Eastern District court to one count of the second Eastern District indictment (in case 08 Cr. 76) charging him with conspiracy to commit murder in aid of racketeering. In November of 2008, petitioner was sentenced in the Eastern District for that count to 84 months' imprisonment and three years' supervised release (hereinafter the "Eastern District sentence").
In April of 2009, petitioner appeared before this Court for sentencing on the conspiracy to commit money laundering and conspiracy to commit extortion counts that he had pleaded guilty to in October of 2007. The Court calculated a Guidelines range of 70-87 months' imprisonment. (Tr., Apr. 8, 2009, at 16:14-22.) Both parties agreed with this calculation. (Id.) The Court imposed a non-Guidelines sentence of 12 months' imprisonment and three years' supervised release on each count to run concurrently with each other and to run consecutively to the Eastern District sentence. (Id. at 35:9-16.) Petitioner now challenges this sentence pursuant to 28 U.S.C. § 2255.
2. As an initial matter, any challenge to the length of petitioner's sentence is barred by petitioner's express waiver.*fn2 Petitioner's plea agreement provides that petitioner "will not file an appeal or otherwise challenge by petition pursuant to 28 U.S.C. § 2255 . . . the conviction or sentence in the event that the Court imposes a term of imprisonment of 78 months or below." (Gov't Mem. Ex. B at 6.) Such a waiver is enforceable where the "plea agreement was entered into knowingly and voluntarily, and with awareness of [the defendant's] waiver of appeal and collateral attack." Garcia-Santos v. United States, 273 F.3d 506, 508 (2d Cir. 2001).
Here, the record demonstrates that petitioner entered into the plea agreement knowingly and voluntarily, and with awareness of the waiver provision. At the plea proceeding, the Court alluded to the waiver provision at least twice (see Tr., Oct. 25, 2007, 5:2-14; 11:7-13) and petitioner specifically acknowledged that he understood the provision's implications. (Id. at 11:7-13.)
Additionally, petitioner does not contend nor do his memoranda suggest that there were any flaws in his counsel's advice as to the waiver provision in his plea agreement and thus, there can be no claim that "the plea agreement generally, and the defendant's waiver of appeal specifically, were tainted by ineffective assistance of counsel." United States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995) (cited in United States v. Ready, 82 F.3d 551, 555 (2d Cir. 1996)).
In sum, because the Court imposed a sentence of less than 78 months' imprisonment, the waiver provision applies and petitioner cannot challenge the length of his sentence under 28 U.S.C. § 2255.
3. The waiver provision, however, does not bar petitioner from challenging the imposition of a consecutive, rather than concurrent, sentence. See United States v. Stearns, 479 F.3d 175, 178 (2d Cir. 2007) (holding that a plea agreement provision that waived the right to appeal the length of a sentence does not waive the right to appeal the imposition of that sentence consecutively rather than concurrently). Thus, as the Government concedes, (Gov't Mem. at 12), petitioner's challenge to this Court's imposition of a consecutive sentence must be considered on the merits.
Petitioner argues that his counsel was ineffective and that as a result he was prejudiced because he received a consecutive rather than concurrent sentence. To prevail on an ineffective-assistance-of-counsel claim, petitioner "must show (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that as a result he suffered prejudice." United States v. Jones, 482 F .3d 60, 76 (2d Cir. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
In assessing petitioner's claim, this Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound [legal] strategy." United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004) (quoting Strickland, 466 U.S. at 689)(internal quotations omitted). An attorney's performance must be judged based on "the facts of the particular case, viewed as of the time of counsel's conduct, and [the Court] may not use hindsight to second-guess [counsel's] strategy choices." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)(internal citations and quotations omitted). Moreover, failure to assert a meritless argument "does not fall outside the wide range of professionally competent assistance." Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001)(citing Jameson v. Coughlin, 22 F.3d 427, 429-30 (2d Cir. 1994))(internal quotations omitted).
To establish prejudice, petitioner must show that "there is a reasonable probability that, but for the deficiency, the result of the proceeding would have been different." Aparicio, 269 F.3d at 95 (quoting Strickland, 466 U.S. at 694)(internal quotations omitted).
Petitioner first argues that his counsel was ineffective for failing to object to the Government's request for a one-week adjournment of sentencing because a new Assistant United States Attorney had been assigned to the case. (Pet'r's Mem. at 9-11; Pet'r's Reply Mem. at 9-12; Gov't Mem. 17.) Petitioner fails to meet his burden at either prong of the ineffective-assistance-of-counsel analysis -- he does not provide any basis on which his counsel could have ...