The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1
On January 16, 2009, petitioner Saul Antonio Paez ("Paez") pleaded guilty to conspiracy to distribute and possession with intent to distribute one kilogram or more of a mixture or substance containing a detectable amount of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). On June 6, 2009, Paez was sentenced to 108 months in prison and five years of supervised release.
Paez, proceeding pro se, now moves for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Paez claims that (1) he was denied effective assistance of counsel during trial, sentencing, and appeal, (2) the Court substantively erred in imposing his sentence, and (3) the Court lacked jurisdiction to impose his sentence. For the reasons stated below, the petition is DENIED.
Prior to his arrest, Paez drove commercial trucks cross-country. From March 2008 to August 2008, Paez allowed his coconspirators to load his truck with heroin for the purpose of transporting it from California to New Jersey; Paez's role was limited to cross-country transportation. On August 19, 2008, Paez and four coconspirators arrived at a garage in Newark, New Jersey where Paez's coconspirators transferred the heroin from his truck to another car.
Law enforcement officials raided the garage and arrested Paez and his coconspirators. Officials recovered approximately thirty kilograms of heroin and two million dollars.
Paez pleaded guilty, without a plea agreement, to conspiracy to distribute heroin. After the plea allocution, the Government agreed that Paez qualified for safety valve relief, and the Court reduced Paez's Guideline level by two levels. The Court did not apply minor role adjustment mitigation, but after considering other relevant factors under 18 U.S.C. § 3553(a), the Court opted for a non-Guideline sentence that subjected Paez to 108 months in prison-twenty-seven months below the bottom of the applicable Guideline range.
For the Court to grant his petition, Paez must show either that: (1) his sentence was imposed in violation of the U.S. Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; or (3) the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. Espinal v. United States, No. 08 Civ. 7029, 2011 WL 5120663 (S.D.N.Y. Oct. 8, 2011); see also Johnson v. United States, 313 F.3d 815, 817 (2d Cir. 2002). Furthermore, because Paez is proceeding pro se, his petition will be construed liberally and interpreted to raise the strongest arguments it suggests. See Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
A.Paez Was Not Deprived of Effective Assistance of Counsel
The Supreme Court established a two-pronged test to evaluate a claim for ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). To affirmatively establish ineffective assistance of counsel, a petitioner must show (1) counsel's performance fell below an objectively reasonable standard of performance under prevailing professional norms, and (2) counsel's deficient performance prejudiced the outcome of the proceeding. See id. at 687; Cornell v. Kirkpatrick, 665 F.3d 369, 375 (2d Cir. 2011). Under the "reasonableness" prong of the Strickland test, the court must proceed with the "presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (citing Strickland, 466 U.S. at 689). To satisfy the prejudice prong of Strickland, the petitioner must establish that the record shows "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694 (emphasis added); accord United States v. Arteca, 411 F.3d 315 (2d Cir. 2005). A court may bypass the "reasonableness" prong of Strickland if it determines a petitioner fails to meet the second, "prejudice" prong. See Strickland, 466 U.S. at 697; see also Savinon v. Sears, No. 09 Civ. 2529, 2011 WL 6979974, at *8 (S.D.N.Y. Dec. 8, 2011).
1.No Prejudice to Paez by Counsel Prior to the Plea The Strickland test applies to ineffective assistance claims arising out of the plea process.*fn2 Hill v. Lockhart, 474 U.S. 52, 58 (1985); Yong Wong Park v. United States, 441 F. App'x 18, 20 (2d Cir. 2011). Where a guilty plea has been accepted, the "'prejudice' inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective assistance challenges to convictions obtained through trial." Hill, 474 U.S. at 59; accord Black v. Herbert, No. 02 Civ. 6252, 2009 WL 1097971, at *12 n.11 (S.D.N.Y. Apr. 23, 2009). For example, if counsel failed to discover evidence that would have led him to change his recommendation as to the plea, the assessment will depend on a prediction that such evidence likely would have changed the outcome of a trial. See Hill, 474 U.S. at 59. However, a § 2255 petition "must contain assertions of fact that a petitioner is in a position to establish by competent evidence", and "[a]iry generalities, conclusory assertions and hearsay statements will not suffice . . . ." Haouari v. United States, 510 F.3d 350, 354 (2d Cir. 2007) (internal citations omitted); accord Guzman v. United States, No. 11 Civ. 2433, 2011 WL 6097128, at *2 (S.D.N.Y. Dec. 7, 2011).
Paez cites in his petition several grievances against his attorney, including (1) a failure to object to misleading testimony, (2) a failure to effectively submit a motion to suppress evidence, and (3) a failure to investigate witnesses that could exonerate him. Pet. 8. First, Paez pleaded guilty and did not have a trial; Paez's claim that his attorney failed to object to misleading testimony is therefore without consequence. Second, although claims (2) and (3) may have bearing on the decision to plead, Paez only makes conclusory assertions regarding these claims. Paez does not name any individual who was not called and might have exonerated him or suggest any plausible argument that a motion to suppress evidence would have affected the outcome at trial. See e.g., Brooks v. Edwards, 96 F.3d 1448 (6th Cir. 1996) (acknowledging no prejudice where petitioner could not show that a suppression motion would have merit at trial).
Paez additionally asserts that his attorney failed to inform him of his rights and potential defenses. Although this assertion requires consideration, Paez again fails to identify any defense that would have made a difference at trial. See Hill, 474 U.S. at 59 (noting that "where the alleged error of counsel is a failure to advise the defendant of a . . . defense to the crime charged, . . . the resolution of the 'prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial."); see also Lopez v. Artus, No. 03 Civ. 7087, 2005 WL 957341, at *10 (S.D.N.Y. Apr. 25, 2005). There is also no objective evidence that Paez was not informed of his rights. On the contrary, the record of Paez's plea allocution demonstrates that Paez was well-informed of his rights before he pleaded guilty and that by pleading guilty, he waived those rights. Plea Tr. at 5--6, 8--10, Jan. 16, 2009. Paez was cognizant that pleading guilty would help him obtain safety valve relief for a crime where the applicable sentencing Guideline range was 168--210 months. Plea Tr. 7--8. The Court further established a factual basis for Paez's guilty plea by having Paez state his crime in his ...