The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Presently before this Court is pro se Petitioner Patrick Vincent's motion to vacate, set aside, or correct his sentence and conviction pursuant to 28 U.S.C. § 2255. For the reasons discussed below, Petitioner's motion is denied.
On August 5, 2010, Petitioner appeared before this Court and pleaded guilty to two counts of a four-count Indictment charging him with possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and possession of a firearm and ammunition with a prior felony conviction, in violation of 18 U.S.C. 922(g)(1). Under the terms of the plea agreement, Petitioner and the Government agreed that the total offense level, including a reduction for Petitioner's acceptance of responsibility, was 15, and that Petitioner's criminal history category was V, which resulted in a Guidelines sentencing range of 97 to 106 months after application of U.S.S.G. § 2K2.4(b). (Docket No. 24, ¶¶ 11, 12.)
Petitioner appeared for sentencing on August 5, 2010, at which time his lawyer requested that this Court impose a non-Guidelines sentence based on a 1:1 ratio for crack/cocaine powder offenses. After hearing from counselors and Petitioner, this Court imposed a sentence, to run consecutively, of 24 months on Count One and 60 months on Count Two. Petitioner did not appeal.
Rather, he filed the instant motion on April 11, 2011.
28 U.S.C. § 2255 allows federal prisoners to challenge the constitutionality of their sentences. That section provides, in pertinent part, that:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255.
The Second Circuit has held that a "collateral attack on a final judgment in a criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (per curiam) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)).
B. Petitioner's § 2255 Motion
Petitioner argues that (1) his plea lacked a factual basis for an intent to distribute crack cocaine as well as that he used or carried a firearm in furtherance of a drug trafficking offense; (2) he received ineffective assistance of counsel; and (3) his conviction was obtained by use of evidence obtained pursuant to an unlawful arrest and an unconstitutional search and seizure.
The government opposes Petitioner's motion on the basis that he admitted facts sufficient to form a factual basis for his guilty plea on Counts One and Two, failed to pursue his claim on direct appeal, and, in any event, his arguments lack merit.
It is well-settled that federal prisoners may not use § 2255 as a substitute for a direct appeal. United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998); see also Reed v. Farley, 512 U.S. 339, 354, 114 S. Ct. 2291, 129 L. Ed. 2d 277 (1994) ("Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal."). This is particularly true in cases where, as here, the petitioner was convicted pursuant to a guilty plea. Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998) (noting that "the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas") (quoting United States v. Timmreck, 441 U.S. 780, 784, 99 S. Ct. 2085, 60 L. Ed. 2d 634 (1979)).
Petitioner first argues that his conviction lacked a factual basis both as to his intent to distribute crack cocaine and as to his possession or use of a firearm in furtherance of a drug trafficking offense. Because Petitioner failed to raise this claim on direct review, however, it is procedurally barred unless he can show "cause and prejudice." Campino v. United States, 968 F.2d 187, 190 (2d Cir.1992); Hardy v. United States, Nos. 11 Civ. 8382, 10 Cr. 1123(JSR)(AJP), 2012 WL 843384, at *5 (S.D.N.Y. Mar. 14, 2012) ("It is well-established law, however, that a § 2255 claim cannot be used as a substitute for a direct appeal, and that a claim that could have been raised on direct appeal is cognizable under § 2255 only under the "cause and prejudice" standard."). Under that standard, "petitioner must show cause for failing to raise the claim at the appropriate time and ...