The court addresses two habeas motions under 28 U.S.C. § 2255, filed by petitioner Jose Silva. The first, originally filed in 2007, is before the court on a remand from the Court of Appeals. The second was filed on August 17, 2009 with the title, "Petition to Enforce a Contract Pursuant to The Title 42 U.S.C. §1981(A)," which the court construes as petitioner's second § 2255 motion.
The first motion is denied, after complying with the appellate directions. The second motion is transferred to the Court of Appeals for an assessment of certification pursuant to 28 U.S.C. § 2244(b).
On January 7, 2004, petitioner entered a guilty plea to one count of conspiracy and one substantive count related to narcotics distribution. On May 28, 2004, petitioner was sentenced to 87 months in prison-the minimum sentence within the Guidelines range-and three years' supervised release.
Petitioner appealed and retained Jorge De Jesus Guttlein to represent him going forward. The Court of Appeals remanded the case pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). The purpose of the remand was to determine whether petitioner should be re- sentenced under the new controlling decisions. On March 9, 2006, the district court ruled that there was no reason to re-sentence petitioner.
On March 28, 2006, petitioner wrote the court directly to request reconsideration of the court's decision on remand. Petitioner noted that he had contacted the court "[i]n spite of my attorney Jorge Guttlein's protestations." He also alluded to a previous unfiled letter and asked for a new court-appointed attorney, which would have been his second appointed lawyer and his fourth attorney overall since the case began. On March 31, 2006, the court denied petitioner's application. Petitioner did not appeal this determination or the court's refusal to resentence him in light of Crosby.
Instead, on March 30, 2007, petitioner filed his first § 2255 motion, seeking to vacate or correct his sentence. Petitioner's primary claim was ineffective assistance of trial counsel. Petitioner also claimed that he received ineffective appellate assistance from Guttlein. On this subject the petitioner stated:
Counsel Guttlein was aware of this error he research the issues and review the entire record, he knew that the drug quantity error is a Booker error, that the wrong computation and addition of unreliable information by PSI was appealable. But didn't consulted with petitioner for development of issues for appeal. . . . After my case was remand under Crosby by the Second Circuit, Counsel abandon me and up to now I have no communication with him.
The motion contained the further statements:
Counsel for appeal was also ineffective because he didn't communicate with me and didn't develop issues for appeal with me, that's why the drug quantity issue and the pimentel letter ambiguity was never presented on appeal.
Counsel Jorge Guttlien just argue for appeal the 5K2 denial and a Booker error base on Crosby, but didn't argue the Booker error base on drug quantity, never accepted by Petitioner at guilty plea, nor found by a Jury. Therefore, both Counsels were ineffective and Petitioner was prejudice. Sentence should be vacated.
On September 11, 2007, the court denied the § 2255 motion, focusing on petitioner's primary claim that his trial counsel had been ineffective.
Petitioner's main argument is that he should have been sentenced on the basis of 62 grams of crack cocaine whereas the Guideline calculation was made on the basis of 62 grams of crack cocaine plus other quantities of narcotics. Petitioner contends that his counsel was ineffective in various ways in allowing this to happen, including the failure to demand a Fatico hearing. Petitioner also claims that his attorney improperly failed to bargain with the prosecutor for minor role treatment. Petitioner contends that his counsel then assured him that he would argue for minor role treatment at sentencing but did not do so.
None of these contentions has merit. As the record shows, petitioner first admitted that he had sold 62 grams of crack cocaine in connection with his plea to the substantive count. However, in connection with the conspiracy count, he admitted other transactions beyond the one involving the 62 ...