The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
Petitioner Ameer Hasarafally, proceeding pro se, petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255 ("section 2255"), to vacate, set aside, or correct his sentence.*fn1 On April 19, 2006, Hasarafally was convicted of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846, following a three-day jury trial. On September 6, 2006, Hasarafally was sentenced to ninety-six (96) months imprisonment, to be followed by five years supervised release.
Hasarafally asserts two grounds in support of his original Petition. First, he claims that his Sixth Amendment right to the effective assistance of counsel was violated when his lawyer failed to: (1) object to certain hearsay statements made by a non-testifying co-conspirator that were admitted into evidence; and (2) call that co-conspirator as a witness at trial. Second, he claims that his Fifth Amendment right to due process was violated when the sentencing judge, former Chief Judge Michael B. Mukasey, stated at the sentencing that Hasarafally is subject to removal upon completion of his term of imprisonment.*fn2
In addition, Hasarafally has filed a Motion for Sentence
Adjustment*fn3 in which he seeks a six month reduction
in sentence on the ground that as a deportable alien, his sentence
will be served under circumstances more severe than those facing a
similarly situated United States citizen/defendant.*fn4
Finally, Hasarafally filed a motion to amend his Petition to assert a third ineffective assistance
of counsel claim based on his attorney's alleged failure to properly
advise him of the benefits of pleading guilty.*fn5 For
the following reasons, the Petition is denied on the merits as is the
Motion for Sentence Adjustment. The Motion to Amend is denied as
A. Overview of the Government's Case-in-Chief
Hasarafally and co-defendant Danny Ranchurejee were kilogram-level cocaine dealers who had a short-lived relationship with another cocaine trafficker who became a cooperating witness (the "CW") for the Government. In February 2005, Ranchurejee, with the assistance of Hasarafally, purchased approximately two kilograms of cocaine from the CW. At the time, the CW had not yet been arrested and was not cooperating with the Government. About a month later, in early April 2005, the CW was apprehended and immediately agreed to cooperate with the Drug Enforcement Administration ("DEA"). Acting at the DEA's direction, the CW made recorded telephone calls in which he arranged to purchase three kilograms of cocaine from Ranchurejee. On April 5, 2005, the date set for the exchange, Hasarafally met Ranchurejee at a predetermined location. After remaining under surveillance for some time, the two men were arrested. Inside Hasarafally's car, agents found a knapsack containing a scale and nearly three kilograms of cocaine. Telephone records and one of Ranchurejee's recorded conversations with the CW confirmed Hasarafally's involvement in the drug deal.
1. The February 2005 Deal
The CW testified pursuant to a cooperation agreement in the Government's case-in-chief against Hasarafally. The CW stated that he became involved in cocaine trafficking in late 2004, when he learned that his girlfriend was receiving shipments of cocaine from her family in Guyana.*fn6 The CW obtained Ranchurejee's name and telephone number from connections he had in Guyana.*fn7
In late February 2005, the CW arranged to sell two kilograms of cocaine to Ranchurejee.*fn8 A couple of days after the sale, Ranchurejee called the CW and complained that one of the kilograms was eighty grams short.*fn9 Although he disagreed with the alleged inaccuracy in weight, the CW agreed to make up the shortage.*fn10 Ranchurejee told the CW that he would send someone to pick it up.*fn11 Shortly thereafter, the CW met Hasarafally who was seated in a brown Honda Accord when he arrived.*fn12 When the CW reiterated that quantity shortages were unusual for him, Hasarafally replied that he had to take it up with Ranchurejee.*fn13
The CW then gave a bag containing one hundred grams of cocaine to Hasarafally.*fn14
All of this transpired before the CW was arrested and started cooperating with the Government.
2. The April 5, 2005 Deal
On March 31, 2005, the CW was arrested after attempting to sell
nineteen kilograms of cocaine to an undercover agent.*fn15
After his arrest, the CW immediately began cooperating with
the Government. As part of his cooperation, the CW arranged drug deals
by making recorded calls to numbers stored in his cell
phone.*fn16 One of those telephone contacts was
Ranchurejee. In a series of calls from April 3 to April 5, 2005, the CW arranged to purchase several
kilograms of cocaine from Ranchurejee.*fn17 In those
calls, Ranchurejee discussed the quantity, price, date, and place for
the transaction. Ranchurejee originally intended to supply four
kilograms of cocaine as early as April 4, 2005,*fn18
but he later told the CW that he only had three kilograms to
sell.*fn19 Ranchurejee and the CW then agreed to meet
on April 5, 2005, at a location in Queens.*fn20
Ranchurejee did not mention Hasarafally by name in any of those
DEA Special Agents Michael Murphy and Ramon Perez established advance surveillance in the area of the meeting.*fn21 At the expected time of the meeting, Agent Murphy saw a brown Honda Accord arrive.*fn22 Approximately ten minutes later, Agent Murphy saw a Lincoln Navigator arrive and park in front of the Honda.*fn23 Ranchurejee emerged from the Navigator, approached the driver's side of the Honda, spoke briefly with the driver for a minute, then walked off empty-handed.*fn24
Not long after walking away, Ranchurejee went back to the Honda and entered the front passenger side, empty-handed.*fn25 The Honda pulled out and drove for about a block before it was stopped by law enforcement.*fn26 Hasarafally was in the driver's seat.*fn27 Agent Murphy looked inside the Honda and saw a knapsack on top of the back seat.*fn28 A search of the knapsack revealed what was later determined to be approximately three kilograms of cocaine and a digital scale commonly used to weigh drugs.*fn29 At trial, Agent Murphy testified as follows:
Q. At that point, did you yourself know what was in the knapsack?
Q. Did you come to open the knapsack?
A. After I asked Mr. Hasarafally, I walked towards Ranchurejee, and I was going to ask him if it was his knapsack, and before I took two steps he yelled out,
"It belongs to him," and pointed at Hasarafally.*fn30
Defense counsel immediately objected. At sidebar, when Judge Mukasey asked counsel what remedy he sought, counsel asked the Court to "instruct the jury that they are not to consider the statement by Ranchurejee for any purpose and to strike it."*fn31 The Court complied by providing the following instruction:
THE COURT: Ladies and gentlemen, the statement that this witness attributed to Mr. Ranchurejee is not to be considered for any purpose at all in deciding this case. It's stricken. I told you earlier on that there might be testimony that was stricken. This is that kind of testimony. So you are not to consider it in deciding the facts of the case.*fn32
The arresting agents also recovered cell phones from Hasarafally and Ranchurejee.*fn33 Telephone records for those phones reflect that 145 calls were made between Hasarafally and Ranchurejee in the ten days leading up to the April 5, 2005 transaction.*fn34 The records also show that several additional calls were placed between Ranchurejee and Hasarafally in the late morning and afternoon of April 5, 2005.
On April 19, 2006, the jury returned a guilty verdict. By special verdict, the jury found that the offense conduct involved at least 500 grams but less than five kilograms of cocaine.*fn35 At Hasarafally's request, the court asked the jury to report whether "your verdict was based on the events of April 5 or whether it was based on the earlier events."*fn36 The jury responded that "the amount of narcotics relates to the events of April 5, 2005."*fn37
C. The Sentencing Proceedings
Prior to sentencing, the United States Probation Office prepared a
Presentence Investigation Report ("PSR"). The Probation Office
determined that Hasarafally was responsible for approximately five
kilograms of cocaine, yielding a base offense level of 32.*fn38
Because Hasarafally fell into Criminal History ...