The opinion of the court was delivered by: P. Kevin Castel, District Judge:
Diego Fernando Orozco-Mendez, proceeding pro se, has filed a petition to vacate, set aside or correct his sentence or be granted a hearing pursuant to 28 U.S.C. § 2255, asserting that he was denied the effective assistance of counsel and was sentenced in excess of the maximum warranted by the established facts in violation of the Sixth Amendment. He also asserts that he was denied due process in violation of the Fifth and Fourteenth Amendments and that his sentence violates the Rule of Specialty. For the reasons discussed below, the petition is denied.
On October 13, 2005 an indictment was returned in this District against OrozcoMendez. (05 Cr. 1069-4 (GEL), Docket # 1) The indictment charged one count of conspiracy to import and distribute one kilogram and more of heroin in violation of sections 812, 952(a), 959(a), 960(a)(1), 960(b)(1)(B)(ii) and 963 of Title 21, United States Code, and one count of conspiracy to distribute, and to possess with the intent to distribute, one kilogram and more of heroin in violation of sections 812, 841(a)(1), 841(b)(1)(A) and 845 of Title 21, United States Code. On November 3, 2005, Orozco-Mendez was indicted in the District of Massachusetts on similar charges. (Pet'r. Mem., Ex. 2)
Orozco-Mendez was arrested on November 30, 2005 in the Republic of Colombia and was held in Combita Prison pending extradition on a warrant issued out of this District. (Pet'r. Mem., Ex. 9, 11; Orozco-Mendez Aff. ¶ 1.) The United States Attorney's Office for the District of Massachusetts did not seek extradition because the offenses charged were similar to those charged in New York. (Gov't. Mem., Ex. G.) Because the United States Attorney's Office for the District of Massachusetts did not seek extradition, it concluded that Petitioner could not be prosecuted in that district on the pending indictment under the Rule of Specialty, which circumscribes the specific crimes for which a defendant may be tried following extradition. (Pet'r. Mem., Ex. 9.); See United States v. Cuevas, 496 F.3d 256, 262 (2d Cir. 2007). The government moved to dismiss Orozco-Mendez from the Massachusetts indictment, which motion was granted on February 16, 2007. (Gov't. Mem., Ex. G.) Orozco-Mendez was extradited to the United States on November 1, 2007. (Orozco-Mendez Aff. ¶ 1.)
In safety-valve proffer sessions in this District, Orozco-Mendez admitted to investing in two loads of heroin destined for the United States-a 2.9 kilogram load seized in July 2005 and a 16 kilogram load seized in October 2005. (Id.) Petitioner initially objected to discussing the 16 kilogram load but was advised by his counsel that if he did not discuss the second load he might not qualify for safety-valve relief and could face a consecutive sentence in Massachusetts. (Orozco-Mendez Aff. ¶¶ 16-19.) Counsel did not inform him that the indictment in Massachusetts had been dismissed. (Orozco-Mendez Aff. ¶ 51.) The government provided Orozco-Mendez with a Pimental letter, which stated that he was eligible for safety-valve relief and suggested a range of 108-135 months imprisonment based on an adjusted offense level of 31 and a Criminal History Category of I. (Gov't. Mem., Ex. D). This recommendation included the 16-kilogram load as conduct relevant to determining the base offense level. Had Orozco-Mendez not qualified for a safety-valve adjustment he would have faced a mandatory minimum of 120 months. 21 U.S.C. §§ 841(b)(1)(A), 960(b)(1)(B)(ii).
Petitioner entered a plea of guilty to both counts of the indictment before Magistrate Judge Henry Pitman on June 4, 2008. During the plea colloquy, Magistrate Judge Pitman asked Orozco-Mendez if he had received the indictment and discussed it with trial counsel, if he was satisfied with counsel's representation, if he understood the nature of the charges against him, if he understood that the mandatory minimum sentence for his offense was ten years' imprisonment, if he understood that the appropriate Sentencing Guideline range would be determined after a presentence report that he could challenge was prepared, if he understood that the sentencing judge could depart from the guideline range and if he understood that he had the right not to plea guilty. (Pitman Plea Colloquy Tr. at 7-13.) Orozco-Mendez stated that he understood in response to each of these questions. (Id.) Then-District Judge Lynch adopted the guilty plea in an Order dated October 1, 2008.
On September 25, 2008, Judge Lynch sentenced Orozco-Mendez below the mandatory minimum term to concurrent terms of 108 months imprisonment on the two counts, supervised release of five years, and a $200.00 special assessment. Prior to sentencing, Judge Lynch determined that the appropriate Sentencing Guideline range was 108-135 months, which corresponded to a base offense level of 36 reduced by two levels for safety-valve relief and further reduced by three levels for acceptance of responsibility. (Id.) Orozco-Mendez appealed his sentence, and it was affirmed by the Second Circuit Court of Appeals on March 30, 2010.
Orozco-Mendez filed this habeas petition on January 1, 2011, within the one-year time limit imposed by the Antiterrorism and Effective Death Penalty Act. 28 U.S.C. § 2255(f)(1). He seeks to have his sentence vacated, set aside or corrected or to be granted a hearing pursuant to section 2255. He asserts five violations as the bases of his habeas petition:
(1) he was denied the effective assistance of counsel in the trial court and on appeal in violation of the Sixth Amendment; (2) the government did not disclose the dismissal of the Massachusetts indictment in violation of his due process rights under the Fifth and Fourteenth Amendment; (3) his sentence exceeded the maximum authorized by the facts admitted or established by the guilty plea in violation of the Sixth Amendment; (4) the government did not uphold the plea agreement in violation of his due process rights under the Fifth and Fourteenth Amendment; and (5) his sentence violates the Rule of Specialty.
I. Ineffective Assistance of Trial Counsel
Orozco-Mendez's principal claim is that he did not receive the effective assistance of counsel during his safety-valve proffer. He asserts that trial counsel's failure to inform him that the Massachusetts indictment had been dismissed combined with his warning that Orozco-Mendez risked a consecutive sentence if he did not discuss the 16-kilogram load during the safety-valve proffer rendered trial counsel ineffective. This ineffectiveness, he asserts, carried over to the sentencing where trial counsel did not object to the inclusion of the 16-kilogram load of heroin in the computation of his Sentencing Guideline range. He also asserts that trial counsel was ineffective because he failed to raise the claims presented in the Petition on appeal.
To prevail on an ineffective assistance of counsel claim, petitioner must show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms" and "affirmatively prove prejudice" by showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688-89, 693-94 (1984). Assuming, arguendo, ...