The opinion of the court was delivered by: Spatt, District Judge.
Presently before the Court is a petition by the Defendant/Petitioner Garrick Logan ("Logan") for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255, and a motion for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2). For the reasons that follow, the Court finds that Logan's petition for a writ of habeas corpus is denied, but that he is eligible for a sentence reduction and that his sentence shall be modified accordingly.
On April 15, 2009, Garrick Logan was arrested in Hempstead, New York after a vehicle and foot pursuit. The Government's investigation revealed that Logan had supplied or attempted to supply cocaine base to a confidential informant ("CI") on at least two occasions. First, on February 18, 2009, Logan supplied 4.36 net grams of cocaine base to his co-defendant, Michael Hibbert ("Hibbert"), who then sold the drugs to the Government's CI. Then, on April 15, 2009, Hibbert met again with the CI and offered to sell him another ten grams of cocaine base. The CI gave Hibbert $750, and Hibbert informed the CI that he needed to obtain the cocaine base from his supplier. The FBI agents conducting surveillance then observed Hibbert walk to another area where he made a number of phone calls.
A few minutes later, a Ford Taurus vehicle arrived at the location and Hibbert entered the passenger side of the automobile, which Logan was driving. FBI agents then approached the vehicle, and Logan sped away from the area. FBI agents and other law enforcement agents engaged in a high speed pursuit for several blocks on busy streets that contained other vehicles and pedestrians. Logan eventually stopped the vehicle, and he and Hibbert exited the automobile and attempted to flee on foot. After a short foot pursuit, both men were apprehended. The law enforcement officials observed Logan drop two plastic bags when he exited the vehicle. A chemical analysis revealed that the bags contained a total of 17.7 net grams of cocaine base. Thus, when combining the February and April incidents, Logan was accountable for a total of 22.06 net grams of cocaine base.
Logan had a total of three attorneys between the date of his arrest and his subsequent sentencing. His first attorney, Terrence P. Buckely, Esq. was appointed by the Court on April 21, 2009 pursuant to the Criminal Justice Act ("CJA"). According to the Petitioner, this attorney "showed no interest in preparing for his defense." (Petition at 5.) Therefore, the Court allowed this counsel to withdraw from the case after making Logan aware that he needed to obtain a paid attorney.
Thereafter, Logan hired Uzmah Saghir to represent him, and she filed her notice of appearance with this Court on June 25, 2009. On June 26, 2009, the Court held a status conference as to Logan, but Saghir did not appear on time. The hearing was delayed several hours until Saghir finally appeared. On July 30, 2009, this Court held another status conference in this matter at 10:00am. However, once again, Saghir did not appear. This Court called her office and left a message, and put the case on for a second call at 2:00pm. However, Saghir still did not appear. The matter was scheduled for a further status conference on August 5, 2009. This Court stated on the record at that time that if Saghir did not appear for the August 5 conference, it would consider Saghir to have abandoned her representation of Logan. Saghir did not respond to communications from this Court or to the Assistant United States Attorney assigned to this case. On August 5, 2009, Saghir was officially terminated as Logan's attorney. By this time, the Court had appointed a second criminal defense attorney from the CJA panel, Richard A. Miller, Esq., to represent Logan.
On September 25, 2009, pursuant to a plea agreement with the Government, Logan eventually pled guilty to a lesser-included offense of Count One of the indictment, which charged him with conspiracy to distribute and possess with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The Pre-Sentence Report ("PSR") filed by the Probation Department found a total drug quantity of 22.06 grams of cocaine base, resulting in a Base Offense Level of 26. In addition, the Defendant was subject to a 2-level enhancement for reckless endangerment during flight per Sentencing Guideline § 3C1.2, resulting in an Adjusted Offense Level of 28. However, because the Defendant pled guilty, there was a three point reduction for acceptance of responsibility, for a Total Offense Level of 25. With a Criminal History Category of II, the guideline range of imprisonment at the time was 63 to 78 months. Under the statutory provisions, the maximum term of imprisonment was 40 years and the minimum term of imprisonment was 5 years. See 21 U.S.C. § 841(b)(1)(B).
On February 12, 2010, Logan was sentenced to 63 months in custody and 4 years of supervised release. This Court adopted the PSR without modification, resulting in a Total Offense Level of 25, a Criminal History Category of II, and a custodial guideline range of 63 to 78 months. The Court found that based upon all the circumstances involved, including consideration of the advisory guidelines and the statutory reasons for sentencing, that the minimum guideline range of 63 months was a reasonable sentence. In particular, the Court noted
(1) the nature and circumstances of the offense - illegal drug sales followed by reckless endangerment of a high speed chase; (2) the history and characteristics of the Defendant - such as a good employment record and consistent payment of taxes; as well as (3) the need for the sentence imposed, including to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.
On June 28, 2010, Logan commenced this habeas corpusproceeding, filing a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Effective November 1, 2011, the United States Sentencing Commission ("Sentencing Commission") approved part A of Amendment 750, which altered the offense levels in § 2D1.1 of the U.S. Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines Manual") applicable to crack cocaine offenses (the "Guidelines Amendment"). See U.S.S.G. §2D1.1 (2011). In addition, the Sentencing Commission gave this amendment retroactive application. See U.S.S.G. § 1B1.10(c) (2011).
On November 2, 2011, Logan moved for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2), relying on the Guidelines Amendment. On December 1, 2011, the Government filed an opposition to Logan's motion for a sentence reduction. The Government acknowledged that the Defendant was eligible for a sentencing modification, but that the Court should exercise its discretion not to do so after considering the factors in 18 U.S.C. § 3553(a).
The Court will now address, in turn, both the petition for a writ of habeas corpus and the motion for a sentence reduction.
II. HABEAS CORPUS PETITION
Logan raises two grounds in his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. First, he contends that both his retained counsel and his court-appointed counsel were ineffective. Second, he asserts that the Court should enter an order to arrest judgment, pursuant to Rule 34 of the Federal Rules of Criminal Procedure ("Rule 34"), due to an alleged error in the indictment. Relatedly, Logan claims that his court-appointed counsel's failure to file such a motion in a timely fashion contributed to his ineffective assistance of counsel.
A.Whether Logan's Petition is Procedurally Barred
The Government argues that Logan's petition is procedurally barred, because he agreed in his plea agreement "not to file an appeal or otherwise challenge by petition pursuant to 28 U.S.C. § 2255 . . . in the event that the Court imposes a term of imprisonment of 71 months or below." (Gov't Ex. 2 at ¶ 4.) Logan was sentenced to 63 months, and accordingly, the Government argues he has waived his right to challenge his sentence.
"It is by now well established that a knowing and voluntary waiver of the right to appeal is generally enforceable." United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001); see also United States v. Haynes, 412 F.3d 37, 39 (2d Cir. 2005); United States v. Morgan, 406 F.3d 135, 137 (2d Cir. 2005); United States v. Garcia, 166 F.3d 519, 521 (2d Cir. 1999); United States v. Chen, 127 F.3d 286, 289 (2d Cir. 1997); United States v. Yemitan, 70 F.3d 746, 747 (2d Cir. 1995); United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993) ("In no circumstances . . . may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement.").
A defendant may also waive his right to bring a petition pursuant to section 2255. See Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195-96 (2d Cir. 2002); Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001); Muniz v. United States, 360 F. Supp. 2d 574, 577 (S.D.N.Y. 2005). However, "such waivers are strictly and narrowly construed against the government, in recognition of its greater bargaining power in negotiating and the fact that the government usually drafts plea agreements." Yushuvayev v. United States, 532 F. Supp. 2d 455, 468 (E.D.N.Y. 2008) (citing United States v. Cunningham, 292 F.3d 115, 117 (2d Cir. 2002) and United States v. Ready, 82 F.3d 551, 556 (2d Cir. 1996)).
The Second Circuit has recognized a very narrow set of exceptions to the general rule on the enforceability of waivers, such as where: (1) the waiver was not made knowingly, voluntarily, and competently; (2) the sentence imposed was based on constitutionally impermissible factors; (3) the government breached the plea agreement; or (4) the court failed to enunciate any rationale for the sentence. See United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000).
As an initial matter, the Court finds that the waiver here was entered into knowingly and voluntarily. The record is clear that Logan signed the written plea agreement, and knowingly and voluntarily waived his right to seek habeas relief. Logan stated under oath that he understood the agreement. (Guilty Plea Tr. at 15.) "[T]he district court [i]s entitled to rely upon the defendant's sworn statements, made in open court . . . that he understood the consequences of his plea, had discussed the plea with his attorney, knew that he could not withdraw the plea, [and] understood that he was waiving his right to appeal a sentence below [the stipulated range] . . . ." United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001).
However, the present situation is particularly complicated because Logan essentially alleges that he was ineffectively assisted in making the decision to accept the plea agreement. Thus, "on one hand, rigid enforcement of the waiver rule would make ineffective assistance in advising a criminal defendant to enter into a plea agreement effectively unreviewable, while disregarding the waiver agreement entirely in cases of alleged ineffective assistance would open the door to 'obvious [ ] circumvention of a plea agreement,' permitting defendants to cast any purported defect in the underlying criminal proceeding as a matter of ineffective assistance not encompassed by the waiver provision." Yushuvayev, 532 F. Supp. 2d at 469 (quoting United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995)). The Second Circuit itself has expressed hesitation in finding that a defendant has waived his right to appeal where the defendant argues that his execution of the waiver was itself the product of ineffective assistance of counsel. See, e.g., United States v. Hernandez, 242 F.3d 110, 113--14 (2d Cir. 2001) ("We have suggested that a plea agreement containing a waiver of the right to appeal is not enforceable where the defendant claims that the plea agreement was entered into without effective assistance of counsel.") (citing cases).
Generally speaking, "[c]laims of ineffective assistance of counsel can survive § 2255 waivers, but only when the claim relates to the negotiation and entry of a plea or sentencing agreement."United States v. Cano, 494 F. Supp. 2d 243, 248 (S.D.N.Y. 2007) (citing Hernandez, 242 F.3d at 114 ("If the constitutionality of [the plea agreement process] passes muster, the agreement's waiver would bar any consideration . . . of issues that fall within the scope of that waiver.")). Thus, the relevant determination is whether Logan is contesting his sentence generally - which would undoubtedly be barred by his waiver - or whether he is contending that the waiver to his right to collaterally attack his sentence, or more generally, his entry into the plea agreement, was predicated upon ineffective assistance of counsel - which would not be barred by his waiver.
The Court is mindful that a petitioner such as Logan should not be able to couch his arguments in terms of ineffective assistance of counsel, when he is actually challenging his sentence. See Iyer v. U.S., No. 08 Civ. 10455, 2012 WL 383623, at *3 (S.D.N.Y. Feb. 7, 2012). Nevertheless, many of Logan's allegations can be read as contending that it was Singh's and Miller's performance that caused him to accept the plea agreement. (See, e.g. Petition at 10 ("[a]fter being confused and frustrated by all the attorney's [sic] drama that were [sic] going on in his case, the defendant signed the plea agreement.").
Accordingly, the Court deems Logan's waiver in his plea agreement of his right to bring a petition pursuant to 28 U.S.C. § 2255 unenforceable in the context of this action, and shall therefore turn to an examination of the merits of Logan's petition. See Parisi v. United States, 529 F.3d 134 (2d Cir. 2008) (noting that the "constitutionality of the process by which he waived his right to appeal" would survive the waiver); Frederick, 308 F.3d at 195 ("a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, here, the plea agreement."); DeRoo v. United States, 223 F.3d 919, 924 (8th Cir. 2000) ("A defendant's plea agreement waiver of the right to seek section 2255 post-conviction relief does not waive defendant's right to argue, pursuant to that section, that the decision to enter into the plea was not knowing and voluntary."); Cross v. Perez, No. 11 Civ. 1186, 2011 WL 4711466, at *9 (E.D.N.Y. Oct. 04, 2011) ("Virtually all of the Second Circuit cases reject a waiver where the defendant attacks the 'process.'").
B.Ineffective Assistance of Counsel
Under the well-established Strickland standard, a claim of ineffective assistance of counsel requires a showing that: (1) counsel's performance fell below an objectively reasonable standard of performance; and (2) the deficient performance prejudiced the outcome of the proceeding. Bierenbaum v. Graham, 607 F.3d 36, 50 (2d Cir. 2010) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To meet the first prong, Logan must demonstrate "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687.
In evaluating the first prong of this test, the Court must "'indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' bearing in mind that '[t]here are countless ways to provide effective assistance in any given case' and that '[e]ven the best criminal defense attorneys would not defend a particular client in the same way.'" United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674)) (alterations in original).
To satisfy the second prong, Logan "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In this context, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.; see also Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001) ("The level of prejudice the defendant need demonstrate lies between prejudice that 'had some conceivable effect' and prejudice that 'more likely than not altered the outcome in the case.' ") (quoting Strickland, 466 U.S. at 693). In evaluating prejudice, a court should look to the "cumulative effect of all of counsel's unprofessional errors". Gersten v. Senkowski, 426 F.3d 588, 611 (2d Cir. 2005).
Ultimately, "[t]he court's central concern is not with 'grading counsel's performance' but with discerning 'whether despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.'" Aguirre, 912 F.2d at 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 696--97, 104 S. Ct. 2052, 80 L. Ed. 2d 674).
Although the test for ineffective assistance of counsel contains two prongs, the Supreme Court specifically noted that federal district courts need not address both components if a petitioner fails to establish either one. Strickland, 466 U.S. at 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. In particular, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Id.
2.As to Whether the Petitioner Has Demonstrated Ineffective Assistance of Counsel
a.Allegations With Regard to the Petitioner's Paid Counsel
During the period beginning on June 25, 2009 and ending on August 5, 2009, which is the span of time dating from Saghir's filing of a notice of appearance through the day she was terminated as the Petitioner's counsel, Saghir was in the process of being investigated and subject to disciplinary proceedings for her professional misconduct. On June 29, 2009, an investigating committee (the "Committee"), appointed by the Committee on Grievances, issued a formal statement of charges against Saghir. On July 8, 2009, the Committee issued an interim order of suspension. On September 9, 2009, Saghir submitted a letter to the Committee in which she stated that she had resigned from the bar of the United States Court of Appeals for the Second Circuit and would withdraw from the bar of the United State District Court for the Southern District of New York, effective immediately. Saghir submitted a letter of resignation to the bar of the United State District Court for the Eastern District of New York on the same day. See In re Saghir, 632 F. Supp. 2d 328 (S.D.N.Y. 2009).
By opinion and order of the United States District Court, Eastern District of New York, dated September 17, 2009, Sahir's name was stricken from the roll of attorneys admitted to practice before this court. In addition, by opinion and order of the United States District Court, Southern District of New York (Rakoff, J.) dated November 30, 2009 (2009 WL 4437951, 2009 US Dist. LEXIS 112657 (S.D.N.Y. 2009)), Saghir's name was also stricken from the roll of attorneys admitted to practice before that court. Following an investigation, nine charges of professional misconduct were brought. On May 24, 2011, Saghir was disbarred from practicing law in the State of New York. See Matter of Saghir, 86 A.D.3d 121, 925 N.Y.S.3d 99, 2011 N.Y. Slip Op. 04475 (2d Dep't 2011). The court found that Saghir had neglected multiple federal criminal matters, failed to return an unearned fee, split legal fees with a non-attorney, and had engaged in misrepresentations during the investigation of these matters.
Logan appears to assert that Saghir's approximate more than one month of legal representation amounted to ineffective assistance of counsel, particularly in light of her disbarrment. Logan vaguely alleges that she committed fraud and misconduct. However, Logan only makes two specific assertions with regard to her performance. First, Logan argues that Saghir promised him that she could get him a sentence that was less than the statutory mandatory minimum sentence of five years. Thus, by making this promise, Saghir persuaded Logan to obtain her as counsel and pay a $20,000 retainer fee. Second, Logan contends that Saghir continued to visit him in prison after she was disbarred, during which time she gave him a motion that she had prepared for him while she was still his attorney and said that he should file the motion after he entered into a plea bargain, without telling his then current counsel Miller. In addition, Logan claims that these visits after she was terminated as his attorney contributed to his alleged "confusion" leading to his acceptance of the plea bargain agreement.
While Logan asserts that prejudice should be presumed because his former attorney was barred from this Court during his representation, it is not clear how Saghir's performance as to this specific case either fell below an objective standard of reasonableness or how Logan suffered any prejudice. While Saghir was eventually disbarred from the State of New York, and Logan describes the details ...