The opinion of the court was delivered by: John G. Koeltl, District Judge
MEMORANDUM OPINION AND ORDER
Pro se petitioner William Chue filed this application for a certificate of appealability from the denial of his petition, filed pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence.
On May 23, 1995, the petitioner pleaded guilty to a superseding information that contained one count of participating in the affairs of a racketeering organization, in violation of 18 U.S.C. § 1962(c) ("Count One"), and one count of using and carrying firearms during and in relation to the racketeering offenses charged in Count One, in violation of 18 U.S.C. § 924(c) ("Count Two"). Chue v. United States, Nos. 04 Civ. 8668, 94 Cr. 626, 2010 WL 2633861, at *1 (S.D.N.Y. June 29, 2010). Count One charged various racketeering acts, including a conspiracy to murder Irving Wong in violation of New York Penal Law §§ 105.15 and 125.25 ("Racketeering Act One"), and conspiracy to distribute one kilogram and more of mixtures and substances containing a detectable amount of heroin and thereby violate the narcotics laws of the United States, to wit, 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), in violation of 21 U.S.C. § 846 ("Racketeering Act Eight"). (Superseding Information at 4, 6, United States v. Chue, No. 94 Cr. 626 (S.D.N.Y. May 27, 1999), ECF No. 308.)
On May 7, 2003, Judge Robert Carter of this Court sentenced the petitioner to 220 months' imprisonment on Count One and a consecutive term of 60 months' imprisonment on Count Two, totaling 280 months. Chue, 2010 WL 2633861, at *1. A three-year term of supervised release and a $100 special assessment were imposed. Id. The conviction was affirmed on appeal. United States v. Chue, 85 F. App'x 799 (2d Cir. 2004) (summary order).
On November 3, 2004, the petitioner filed a § 2255 petition. Chue, 2010 WL 2633861, at *1. The petitioner argued, among other grounds, that his trial counsel had provided ineffective assistance of counsel by, among other alleged errors, failing to raise a Sixth Amendment challenge to judicial fact-finding involved in calculating the petitioner's offense level under the Federal Sentencing Guidelines. Id.
Judge Carter denied the § 2255 petition on June 29, 2010, rejecting the petitioner's ineffective assistance of counsel claim. Id. at *1-3. Judge Carter found that because the petitioner's sentence "was within the applicable statutory maximum, it was not outside the wide range of competent performance for [the petitioner's] attorney to have failed to invoke Apprendi." Id. at *2. The petitioner filed a timely application for a certificate of appealability. The case was subsequently transferred to this Court after Judge Carter died but before a decision on the certificate of appealability had been rendered.
The petitioner first argues that his trial counsel provided ineffective assistance of counsel by failing to challenge judicial findings of fact underlying the calculation of the petitioner's sentence pursuant to the Federal Sentencing Guidelines.
To establish a claim of ineffective assistance of counsel, the petitioner must show that (1) the petitioner's counsel's performance was deficient in that it was objectively unreasonable under professional standards prevailing at the time, and (2) counsel's deficient performance was prejudicial to the petitioner's case. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995).
The petitioner argues that his trial counsel was ineffective for failing to invoke Apprendi v. New Jersey, 530 U.S. 466 (2000),*fn1 which held that any fact, other than the fact of a prior conviction, "that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. Specifically, the petitioner argues that the trial court engaged in impermissible judicial fact-finding when it calculated the petitioner's Guideline sentence for Racketeering Act One of Count One - namely, conspiracy to murder Irving Wong - based on a finding that the conspiracy had resulted in the actual death of the victim, thus resulting in a higher offense level under the Guidelines and exposing the petitioner to a possible sentence of life imprisonment for Racketeering Act One. The petitioner claims that the statutory maximum for Racketeering Act One of Count One was only twenty-five years and that Apprendi was violated when he was exposed to the possibility of a higher sentence of life imprisonment for this racketeering act. There is no merit in the petitioner's claim that the trial judge engaged in impermissible judicial fact-finding in violation of Apprendi, and there is no merit to the claim that his counsel was ineffective in not raising such a claim.
There is no evidence that Judge Carter calculated the statutory maximum based on Racketeering Act One, rather than Racketeering Act Eight, which did trigger a statutory maximum of life imprisonment for Count One. The statutory maximum for a violation of 18 U.S.C. § 1962(c) is life imprisonment when one of the predicate felonies carries a maximum term of life imprisonment. See 18 U.S.C. § 1963(a). The petitioner faced a maximum statutory penalty of life imprisonment because Racketeering Act Eight, the conspiracy to violate the narcotics laws involving one kilogram of heroin, was punishable by life imprisonment. See 21 U.S.C. §§ 841(b)(1)(A), 846. The petitioner was appropriately advised at his guilty plea and in the Pre-Sentence Report ("PSR") that the maximum penalty was life imprisonment. (See Plea Hr'g Tr. ("Plea Tr."), 6, May 23, 1995); PSR ¶ 157.) In his plea allocution, the petitioner specifically admitted "from 1988 to 1994, I and other members of the Flying Dragons received in heroin more than a kilogram." (See Plea Tr. 9.) Therefore, the petitioner faced a maximum penalty of life imprisonment on Count One of the Superseding Information, based on the Racketeering Act Eight charge in the Superseding Information and the petitioner's guilty plea. There was no judicial fact-finding that increased the maximum penalty to which the petitioner was exposed.
There is nothing in the record to suggest that the maximum statutory penalty of life imprisonment was based on the conspiracy to murder that was charged and admitted by the petitioner in Racketeering Act One, rather than the narcotics conspiracy in Racketeering Act Eight. Although the petitioner correctly points out that the maximum sentence under New York state law for a conspiracy to murder, which is charged in Racketeering Act One, is only twenty-five years, see N.Y. Penal Law §§ 70.00(2)(B), 105.15, 125.25, there is no evidence that Judge Carter relied on Racketeering Act One to determine the statutory maximum sentence.*fn2 Moreover, because the maximum penalty for the crime of conspiracy to murder under New York state law was twenty-five years, Racketeering Act One could not have increased the statutory maximum penalty to life for the statutory RICO charge, whether or not it resulted in the murder of Wong. Therefore, Judge Carter could not have relied on Racketeering Act One to calculate a maximum statutory sentence of life imprisonment.
Chue confuses the Guideline calculations with the maximum statutory penalty. The maximum statutory penalty for the RICO charge in Count One was life imprisonment because of the narcotics conspiracy in Racketeering Act Eight. The actual murder of Wong was not relevant to the statutory maximum for the RICO charge, which was determined by the narcotics conspiracy. While it was irrelevant to the statutory maximum sentence to which the petitioner was subjected that the petitioner conspired to murder Wong and that the conspiracy ...