The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
REPORT AND RECOMMENDATION
Juan Cuevas, currently an inmate at the Allenwood Federal Correctional Institution in White Deer, Pennsylvania, has brought this petition for a writ of habeas corpus under 28 U.S.C. § 2255. On October 4, 2002, Cuevas pled guilty to a three-count indictment. He was originally sentenced to 390 months of imprisonment. Following remand by the Second Circuit, his sentence was reduced to 360 months. For the reasons set forth below, his petition should be denied.
A. Indictment, Arrest, and Guilty Plea
Cuevas was indicted on September 29, 1998. See Indictment, filed Sept. 29, 1998 (Docket # 26 in 98 Cr. 1053). On April 15, 1999, Cuevas was charged in a superseding indictment with the following offenses: (1) conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A); (2) conspiracy to commit money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), 1957(a); and (3)money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 1956(a)(2). See Indictment, filed Apr. 15, 1999 (Docket # 57 in 98 Cr. 1053). At the time of the indictments, Cuevas was in the Dominican Republic. He was extradited to the United States pursuant to the Convention for the Mutual Extradition of Fugitives from Justice, U.S.-Dom. Rep., June 19, 1909, 36 Stat. 2468 (the "Extradition Treaty"), and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, art. 6, Dec. 20, 1988, S. Treaty Doc. No. 101-4, 28 I.L.M. 493 (1989) (the "U.N. Convention"). Cuevas arrived in New York on or about July 6, 2002. See Presentence Investigation Report, dated Feb. 7, 2003 (annexed to Letter from Carrie H. Cohen to the Honorable Gabriel W. Gorenstein, dated Nov. 4, 2011 (Docket # 232 in 98 Cr. 1053) ("Gov't Resp.")) ("PSR") ¶ 51.
On October 4, 2002, Cuevas, along with a co-defendant, pled guilty before Judge Jed S. Rakoff to Counts One, Two, and Three of the Superseding Indictment. See Transcript of Plea Hearing, dated Oct. 4, 2002 (annexed as Supplemental Appendix ("Supp. App'x") to Gov't Resp.) ("Plea Tr.") 2-28. The Government provided Cuevas's attorney with a letter pursuant to United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991), stating the Government's view on the prison sentence called for by the Sentencing Guidelines. Plea Tr. 17.
During the plea allocution, Cuevas stated that he was satisfied with his attorney's representation and had discussed the guilty plea with him. See id. 9. Cuevas also stated that he understood that by pleading guilty he was waiving his right to a trial. Id. 11-13. Judge Rakoff reviewed the elements of each criminal charge and the maximum and mandatory punishments for each. Id. 13-16. Judge Rakoff referred to the Pimentel letter and noted that the Government had stated its view that the Sentencing Guidelines range was 324-435 months. Id. 17-18. The Government said that there were no agreements or promises made to Cuevas regarding his sentence except that the Government had agreed to accept a transfer from the Southern District of Florida of an indictment that was pending against Cuevas, and that if the transfer occurred, the Government would recommend that any sentence from the Florida case run concurrently with the instant case. Id. 19-20. In response to a question from Judge Rakoff, Cuevas acknowledged that no other promises had been made to him as to his sentence. Id. 22. Judge Rakoff also informed Cuevas that any other promise or prediction that had been made could be wrong, and Cuevas would be bound by his sentence. Id.
In his allocution, Cuevas stated that he distributed drugs and laundered money. Id. 23. In response to questions from the court, Cuevas admitted that the distribution of drugs was done in connection with at least one other person and involved more than five kilograms of cocaine. Id. Cuevas also admitted that he engaged in transactions to conceal the proceeds of the drug trafficking. Id. 24. The Court thereafter held a two-day hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979), cert. denied, 444 U.S. 1073 (1980), after which the Court found that Cuevas was a member of a conspiracy that distributed 150 kilograms of cocaine; that Cuevas knew a firearm was used during the commission of the drug conspiracy; and that Cuevas was the leader of the drug conspiracy. See Sentencing Transcript, dated Feb. 24, 2003 (annexed as Supp. App'x to Gov't Resp.) ("2/24/2003 Sent. Tr.") 2.
At the first sentencing hearing, Judge Rakoff imposed a sentence of 390 months followed by five-years supervised release on Count 1 of the superseding indictment and concurrent terms of 20 years each on Counts 2 and 3. See id. 42- 43.
B. Direct Appeals and Remands
Cuevas appealed his sentence, arguing that his plea was not voluntary and his sentence was illegal because he had not been informed of, nor sentenced in compliance with, the extradition treaty under which he was brought to the United States, which he asserted had a maximum penalty of thirty years' imprisonment. See United States v. Cuevas, 112 F. App'x 806, 806-07 (2d Cir. 2004). The Second Circuit found that the record was insufficient to determine "whether the United States and the Dominican Republic reached an agreement as to the sentence that could be imposed upon Cuevas." Id. at 807. Therefore, the Second Circuit remanded the case to the District Court to conduct an evidentiary hearing on the issue. Id.
On remand, the District Court conducted hearings and received written submissions from the parties concerning Cuevas's extradition from the Dominican Republic to the United States. See United States v. Cuevas, 402 F. Supp. 2d 504, 505 (S.D.N.Y. 2005) ("Cuevas II"). Judge Rakoff found that the United States never agreed to be bound by a thirty-year limitation on sentence, and only learned about the purported condition after taking custody of Cuevas and his co-defendant. See id. at 506-07. The Court also found that although the Dominican Republic was aware of Cuevas's sentence, it had failed to object. Id. at 507. Therefore, Judge Rakoff found that Cuevas's sentence should "remain as originally imposed." Id.
Cuevas again appealed his sentence to the Second Circuit. See United States v. Cuevas, 496 F.3d 256 (2d Cir. 2007) ("Cuevas III"). In its decision, the Second Circuit found that the District Court had not erred in finding that the conspiracy involved more than 150 kilograms of cocaine, in finding that Cuevas played a leadership role in criminal activity involving five or more participants, and in refusing to adjourn the sentencing until the related Florida indictment could be transferred. See id. at 267-68. Additionally, the Second Circuit affirmed the District Court's finding that Cuevas's 390 month sentence was not illegal, as the court was under no obligation to limit the sentence to 30 years. Id. at 264. It also rejected Cuevas's argument that his guilty plea was involuntary or uninformed. Id. However, the Second Circuit found that because "the District Court sentenced Cuevas prior to [United States v. Booker, 543 U.S. 220 (2005),] . . . it understandably but erroneously treated the Guidelines as mandatory." Cuevas III, 496 F.3d at 265. Therefore, in accordance with its prior ruling in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the Second Circuit remanded the case to determine whether the District Court's "pre-Booker mandatory application of the Guidelines was plain error." Cuevas III, 496 F.3d at 265.
Judge Rakoff held a resentencing hearing on November 13, 2007. See Transcript of Sentencing Hearing, dated Nov. 13, 2007 (annexed to Gov't Resp.) ("RS Tr."). Judge Rakoff said that the issue at the resentencing hearing was "whether or not if [the Court] had understood at the time of the original sentence that the guidelines were not mandatory, whether [the Court] would have, under those circumstances, imposed a non-trivially different sentence." Id. 2. Judge Rakoff stated that had he been operating in a non-Guidelines context he might have given more weight to the extra difficulties Cuevas faced in prison due to his medical condition and the "aspects of the extradition that might have led the defendant to believe that he would receive a maximum of 360 months." Id. 17. Considering those factors, the Court said it would "err on the side of leniency and change the sentence to 360 months and will also, in issuing the new judgment, make sure that the supervised release, though it will total overall five years, does not exceed the statutory maximum on two of the counts which have a lesser maximum." Id. 18.
Cuevas filed a notice of appeal from his amended judgment of conviction. See Notice of Appeal, filed Nov. 20 & 26, 2007 (Docket ## 200 & 201 in 98 Cr. 1053). On June 30, 2009, the Second Circuit granted the Government's motion for summary affirmance. See Mandate, filed July 30, 2009 (Docket # 207 in 98 Cr. 1053).
On August 6, 2010 Cuevas filed the instant petition seeking habeas corpus review of his sentence pursuant to 28 U.S.C. § 2255. See Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed Aug. 6, 2010 (Docket # 1) ("Mot."). Prior to the Government's response, Cuevas filed a motion for permission to file an amended petition, which was granted on May 31, 2011. See Memorandum Endorsement, filed May 31, 2011 (Docket # 5). Cuevas's first amended petition was filed immediately thereafter. See Petitioner Juan Cuevas' First Amended Motion Under Title 28, United States Code, Section §2255, filed June 1, 2011 (Docket # 215 in 98 Cr. 1053) ("Am. Mot."). The Government submitted opposition papers, see Gov't Resp., to which Cuevas submitted a reply, see Petitioner Juan Cuevas' Reply to the Government's Response, dated Jan. 10, 2012 (Docket # 233 in 98 Cr. 1053) ("Reply").
The Government's initial opposition papers responded only to Cuevas's amended petition. Accordingly, on February 10, 2012, this Court issued an order directing the Government to reply to the issues raised in Cuevas's initial petition. See Order, filed Feb. 10, 2012 (Docket # 14). In response to that order, the Government submitted supplemental opposition papers. See Letter from Carrie H. Cohen to the Honorable Gabriel W. Gorenstein, dated Apr. 5, 2012 (Docket # 234 in 98 Cr. 1053). Cuevas submitted papers in response to the Government's supplemental opposition. See Petitioner's Response in Opposition to the Government's Supplemental Response to the Petitioner's Pro-Se Habeas Petition Pursuant to Title 28 U.S.C. Section 2255, dated Apr. 24, 2012 (Docket # 236 in 98 Cr. 1053) ("Supp. Reply"); ...