The opinion of the court was delivered by: John G. Koeltl, District Judge:
MEMORANDUM OPINION AND ORDER
The petitioner, Daniel Egipciaco, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2255. On February 6, 2007, the petitioner was sentenced to 300 months' imprisonment after a jury convicted him of armed robbery in violation of 18 U.S.C. § 1951 (Count One); conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (Count Two); using and carrying a firearm during and in relation to, and possessing a firearm in furtherance of, the armed robbery conspiracy charged in Count One, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(i) (Count Three); and possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g) (Count Five). The petitioner was sentenced principally to 240 months' imprisonment on Counts One and Two and 120 months' imprisonment on Count Five, all to run concurrently, and 60 months' imprisonment on Count Three, to run consecutively to the sentence on Counts One and Two. The sentence of twenty-five years was the mandatory minimum sentence. His sentence was affirmed on appeal, United States v. Egipciaco, 287 Fed. App'x 119 (2d Cir. 2008) (summary order), and the Supreme Court denied his petition for certiorari, Egipciaco v. United States, 129 S. Ct. 615 (2008) (mem.).
In his petition before this Court, the petitioner raises seven claims for relief. First, he argues that he received ineffective assistance of appellate counsel due to his counsel's delay in moving for leave to supplement his argument on appeal after the decision in United States v. Whitley, 529 F.3d 150 (2d Cir. 2008). Second, he argues that the Government violated the Due Process Clause of the Fifth Amendment and his right to trial under the Sixth Amendment by filing a prior felony information that exposed him to a higher sentence after he refused to plead guilty. Third, he argues that the Court incorrectly calculated his Guidelines sentencing range. Fourth, he argues that the sentence on Count Three should have run consecutively to Count One, rather than to Counts One and Two. Fifth, he argues that the prior felony information filed by the Government was unclear and should have been construed under the rule of lenity. Sixth, he argues that the Court miscalculated the amount of drugs involved in the conspiracy. Seventh, he argues that his counsel at sentencing and appeal was ineffective for failing to raise each of these arguments.
The Court will take each of the petitioner's arguments in turn.
The petitioner argues that he received ineffective assistance of appellate counsel for his counsel's delay in raising a Whitley argument on appeal.
The petitioner filed his appellate brief on September 5, 2007. In that brief, the petitioner did not argue that 18 U.S.C. § 924(c) did not require a consecutive mandatory minimum sentence in his case. The Court of Appeals for the Second Circuit heard argument on the petitioner's appeal on June 13, 2008. Three days later, on June 16, 2008, the Court of Appeals decided Whitley, holding that the consecutive mandatory minimum sentence required by § 924(c) did not apply in cases where § 924(e), the armed career criminal provision, required a longer mandatory minimum sentence. 529 F.3d at 158. One month later, on July 16, 2008, the petitioner's appellate counsel moved for leave to file a supplemental brief arguing that the defendant should be resentenced in light of Whitley. The argument was that because the petitioner was subject to a twenty-year mandatory minimum sentence for his violation of 18 U.S.C. § 846, it was improper to impose a five year mandatory consecutive sentence under 18 U.S.C. § 924(c)(1)(A)(i). The following day, the Court of Appeals issued a summary order denying the petitioner's appeal and affirming his conviction and sentence. On August 8, 2008, the Court of Appeals denied his motion to file a supplemental brief as moot.
The petitioner now argues that his appellate counsel's delay in filing the motion for leave to supplement constituted ineffective assistance of appellate counsel under Strickland v. Washington, 466 U.S. 668 (1984). To make out a claim of ineffective assistance of counsel, a petitioner must show that counsel's performance "fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 688, 694; see also Aparicio v. Artuz, 269 F.3d 87, 95 (2d Cir. 2001) (applying Strickland standard to claim of ineffective assistance of appellate counsel).
After briefing concluded in this case, the Supreme Court decided Abbott v. United States, 131 S. Ct. 18 (2010), which abrogated Whitley. See United States v. Tejada, 631 F.3d 614, 618 (2d Cir. 2011). Under Abbott, the consecutive mandatory minimum sentence of § 924(c) applies notwithstanding a defendant's receipt of "a higher mandatory minimum on a different count of conviction." Abbott, 131 S. Ct. at 23. This reading of § 924(c) plainly would require the Court to sentence the petitioner to, at a minimum, 300 months' imprisonment, because the five-year mandatory minimum under § 924(c) would have to run consecutively to the twenty-year mandatory minimum sentence under § 846.
As the petitioner's habeas counsel recognized at argument, no relief is available to the petitioner on this claim in the wake of Abbott. The only remedy that the petitioner seeks for the alleged denial of effective assistance of appellate counsel is resentencing. (Mem. of Law in Supp. of Daniel Egipciaco's Pet. for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255 ("Pet'r's Counseled Mem.") at 25.) In such a resentencing, the Court would be required to apply § 924(c) as presently construed by the Supreme Court. See, e.g., United States v. Sampson, No. 00 Cr. 6083, 2011 WL 282743, at *2-3 (W.D.N.Y. Jan. 25, 2011). Accordingly, vacating the sentence for purposes of resentencing would be futile, and the petitioner's claim must be denied.
Moreover, it was not objectively unreasonable for appellate counsel to fail to advance earlier an argument like the argument that the Supreme Court ultimately determined to be without merit in Abbott.
The Court did ask that the United States Attorney determine whether the petitioner was disadvantaged by not having his consecutive § 924(c) sentence vacated in the wake of Whitley and it appears that the petitioner was treated similarly to other defendants. The Government has represented (and the petitioner does not dispute) that the United States Attorney's Office for the Southern District of New York sought certiorari or a stay pending Abbott in every case applying Whitley, with the exception of two cases of "oversight" and four cases in which the Government declined to pursue the matter because the defendants were receiving sentences of at least 25 years' imprisonment or life sentences even with the Whitley error. (Fischman July 25, 2011 Ltr. at 2-3.)
Accordingly, the petitioner's first claim for ...