The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.:
Pursuant to 28 U.S.C. § 2255, Jose Miguel Marte ("Petitioner") moves to vacate his conviction and sentence on the ground of ineffective assistance of counsel. Petitioner was sentenced to a term of 220 months after pleading guilty to conspiracy to distribute an unspecified quantity of heroin and distributing a specified quantity of heroin. Petitioner claims that his counsel failed to: (1) provide advice as to the availability of affirmative defenses of entrapment and duress; (2) ensure that Petitioner understood the nature and consequences of his guilty plea; (3) file objections to the presentence report; and (4) move for a downward departure or a non-guideline sentence based on duress and coercion.
For the reasons set forth below, the Court DENIES the petition.
On November 21, 2002, a grand jury charged Petitioner with (1) conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. § 846 ("Count One"); and (2) distributing and possessing with intent to distribute heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2 ("Count Two"). Petitioner decided to plead guilty to both counts without a plea agreement.*fn1
On July 10, 2003, Petitioner allocuted before Magistrate Judge Theodore H. Katz. (Plea Tr. 12, July 10, 2003.) Petitioner chose not to admit to the quantity or type of drug involved in Count One (conspiracy) and, instead, elected that the Court determine those issues at sentencing. Per Magistrate Judge Katz's recommendation, this Court accepted Petitioner's guilty plea.
On February 5, 2004, the Court held a Fatico hearing to probe Petitioner's role in the conspiracy. (Fatico Hr'g Tr., Feb. 5, 2004.) After Petitioner's Fatico hearing but before sentencing, the Second Circuit decided United States v. Gonzalez, 420 F.3d 111, 125 (2d Cir. 2005), in which it held that drug quantity specified in 21 U.S.C. § 841 was an element that must be admitted by a defendant as part of a plea allocution or otherwise determined by a jury. In light of this decision, the Government moved to vacate Petitioner's pleas on both counts. (Conf. Tr. 6, Dec. 19, 2005.) The Court granted the motion to vacate the plea for Count One but, at Petitioner's request, did not vacate the plea for Count Two. (Id. at 9.) On May 11, 2006, Petitioner allocuted again to Count One before Magistrate Judge Andrew J. Peck. (Plea Tr. 14, May 11, 2006.) During the plea allocution, Petitioner admitted to conspiring to distribute an unspecified quantity of heroin.*fn2 (Id.) Per Magistrate Judge Peck's recommendation, this Court accepted Petitioner's guilty plea.
Petitioner's PSR recommended a base offense level of 34, based on intent to distribute at least three but less than ten kilograms of heroin. (PSR ¶ 32.) It recommended that Petitioner receive no credit for acceptance of responsibility, and it described false testimony given by Petitioner as a witness at the trial of a co-conspirator. (Id. ¶¶ 23, 36, 38.) At sentencing, the Court adopted the PSR's recommendation as to base offense level. The Court then increased the offense level to 38 on the grounds that Petitioner had played a leadership role in the conspiracy, and had obstructed justice by giving false testimony at his co-conspirator's trial and at his own Fatico hearing. The Court sentenced Petitioner to a term of 220 months, below the sentencing guideline range of 235 to 293 months.
Following sentencing, Petitioner appealed pro se, raising a number of claims, including challenges to his guilty plea and sentence, as well as ineffective assistance of counsel. The Second Circuit denied his appeal, finding that his guilty pleas "were made knowingly and voluntarily . . . and were supported by adequate evidence" and that his sentence "was not substantively unreasonable." United States v. Marte, 366 F. App'x 192, 193 (2d Cir. 2010). It dismissed the ineffective assistance of counsel claim without prejudice to allow Petitioner to pursue his claim under Section 2255. Id.
The Court now considers Petitioner's Section 2255 claim of ineffective assistance of counsel. Between his initial plea and sentencing, Petitioner was represented by six different counsel. (See Exhibit A appended to this Opinion & Order). In this motion, Petitioner primarily alleges deficient assistance by Mr. Salvador Delgado and Ms. Dawn Cardi, who served as counsel during Petitioner's second plea and his sentencing.*fn3
To prevail on a claim of ineffective assistance of counsel, Petitioner must satisfy the two-prong test articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 694 (1984), which requires a petitioner to show that his counsel's conduct was (1) objectively unreasonable, and (2) prejudicial to the petitioner.
As to the first prong of Strickland, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Therefore, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. A court should avoid "second-guess[ing]" counsel's assistance by making "every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. (citation omitted).
As to the second prong of Strickland, a petitioner 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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. To show prejudice for deficient assistance occuring in advance of a guilty plea, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
In applying the two-prong inquiry in Strickland, the Court considers the "totality of the evidence before the judge or jury." 466 U.S. at 695. As a result, errors by counsel, when considered cumulatively, may amount to deficient representation. See Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
Petitioner asserts four separate claims of ineffective assistance of counsel that he contends require the Court to vacate his conviction and sentence. As discussed below, the Court finds each claim to be without merit.
1. Advice About Defenses of Entrapment and Duress
Petitioner claims that counsel provided ineffective assistance by failing to advise him about the availability of the affirmative defenses of entrapment and duress. (Aff. of Jose Miguel Marte ("Pet'r Aff.") ¶ 11.) Petitioner states that, had he known about the availability of these defenses, he would have elected to go to trial. (Id. ¶ 25.) Petitioner's claim fails to satisfy either prong of Strickland.
"The likelihood that an affirmative defense will be successful at trial and an assessment of the probable increase or reduction in sentence relative to the plea if the defendant proceeds to trial are clearly relevant to the determination of whether an attorney acted competently in recommending a plea." Panuccio v. Kelly, 927 F.2d 106, 109 (2d Cir. 1991); see also Jamison v. Senkowski, 204 F. Supp. 2d 610, 612 (S.D.N.Y. 2002) (Buchwald, J.) ("In determining whether an attorney acted competently in ...