The opinion of the court was delivered by: Dearie, District Judge.
Pro se petitioner Jermaine Dixon, who pled guilty to narcotics trafficking and is now serving a thirty-year sentence, moves pursuant to 28 U.S.C. § 2255 to vacate that sentence. For the reasons set forth below, the application is denied and the petition is dismissed.
The Court assumes the parties' familiarity with the substantial record, including the two Second Circuit decisions in this case, United States v. Dixon, 175 F. App'x 384 (2d Cir. Mar. 28, 2006) and United States v. Dixon, 262 F. App'x (2d Cir. Jan. 23, 2008), cert. denied, 555 U.S. 864 (Oct. 6, 2008), as well as this Court's recent memorandum and order denying Dixon's motion for a reduction of sentence under 18 U.S.C. § 3582(c). United States v. Dixon, 01-CR-984, slip. op. (July 18, 2012).
GOVERNING LEGAL STANDARDS
Relief is available under 28 U.S.C. § 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." Cuoco v. United States, 208 F.3d 37, 30 (2d Cir. 2000) (internal quotations and citations marks omitted). The Court's discretion to grant relief under section 2255 is to be exercised sparingly, for such applications "are in 'tension with society's strong interest in the finality of criminal convictions.'" Elize v. United States, 2008 WL 4425286, *5 (E.D.N.Y. Sept. 30, 2008) (NGG) (internal citations omitted). See also Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993) ("the writ of habeas corpus has historically been regarded as an extraordinary remedy, a bulwark against convictions that violate fundamental fairness," and "[t]hose few who are ultimately successful [in obtaining habeas relief] are persons whom society has grievously wronged and for whom belated liberation is little enough compensation") (internal quotations and citations omitted).
Under the rules that "'the courts have established [ ] that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack,'" id. (internal Supreme Court citations omitted), only a limited category of claims is even cognizable in a motion under 2255. See United States v. Pitcher, 559 F.3d 120, 123 (2d Cir. 2009) ("2255 petition cannot be used to relitigate questions which [sic] were raised and considered on direct appeal") (internal quotation and citations omitted) (emphasis added), cert. denied, __ U.S.__, 130 S. Ct. 1090 (2010); United States v. Frady, 456 U.S. 152, 165 (1982) (section 2255 may not be used to challenge the legality of matters that were not first raised on direct appeal) (emphasis added); Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007) (same). In short, "a habeas petition may not raise claims that were-or could have been-litigated on appeal." Slevin v. United States, 98 CV 904, 1999 WL 549010, *2 (S.D.N.Y. July 28, 1999) (emphasis added).
Claims of ineffective assistance of counsel, of course, "may be brought in a collateral proceeding under § 2255 whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003). But a petitioner may not avoid the bar on re-litigating appellate claims merely by restyling them as alleged errors of counsel. See generally Riascos-Prado v. United States, 66 F.3d 30, 34 (2d Cir. 1997) (barring 2255 petitioner from raising an ineffective assistance of counsel claim that was "simply a slightly altered rearticulation of a claim that was rejected on his direct appeal"); Slevin, 1999 WL 549010 at *4 ("Petitioner cannot in a § 2255 motion reargue the substance of claims the Court of Appeals has already rejected simply by introducing those claims with 'Counsel failed to argue that. . ..' Such claims clearly fall under the 'slightly altered rearticulation' standard of Riascos--Prado, 66 F.3d at 34, and the Court accordingly declines to re-examine their merits").
The petition and two supporting memoranda of law, exceeding fifty
pages in length, advance six separately numbered "Grounds."*fn1
Each alleges that Dixon's attorney Joel Stein, Esq. was
ineffective in his handling of Guidelines-related matters at Dixon's
resentencing in June 2006.
In Ground One, Dixon claims that "there is no indication in the established record that the court ever adequately considered the factors set forth in 18 U.S.C. § 3553(a), or how, in reaching its decision(s) on sentencing, . . . did [sic] the court consider, at any time, whether to impose a Guidelines sentence or a non-Guideline sentence in accordance with its [r]emand instructions." The ineffectiveness prefix to this claim asserts that "[c]counsel was . . . patently ineffective . . . for failing to properly object to the district court going beyond the specific reasons for remand" and "counsel never sufficiently challenged the court in any way in these regards." Pet. at 5(a), (c).
Dixon's assertions directly contradict what actually occurred at the re-sentencing, which occurred a year after the Supreme Court issued Booker v. United States, 543 U.S. 220 (2005). Contrary to what Dixon claims, (i) Section 3553(a)'s factors figured prominently in the post-Booker proceeding, see, e.g., Tr. June 9, 2006 at 14 ("The Court: I've gone one by one down the list of 3553(a) sentencing criteria, that's the harder question, what do I do? I imposed a life sentence originally"); (ii) Dixon's counsel did expressly address the grounds upon which the Court could impose a non-Guidelines sentence, see Tr. June 9, 2006 at 10-12, and (iii) most critically, the Court did consider 3553(a) factors-including Dixon's age, partial early cooperation, and his late rumblings of remorse-when reducing Dixon's then-advisory Guidelines sentence of life imprisonment to a non-Guidelines sentence of 30 years. See Amended Judgment, Oct. 16, 2006, Statement of Reasons ("A sentence of 30 years is at variance with the advisory guidelines range of life imprisonment . . . the Court chooses to moderate the sentence primarily because of the defendant's age at the time of his criminal conduct [and because] the defendant did cooperate with federal authorities to a limited extent. And at the time of sentence, the defendant did express some remorse for his actions which the court interpreted as genuine.").
In sum, Ground One's allegations do not present a basis for section 2255 relief because they reflect a fundamental misapprehension of the resentencing proceedings. Further, to the extent that Dixon seeks to fault his attorney in a broader sense, for falling short in some unspecified respect in his handling of Guidelines-related questions, he would be unable to show that he was prejudiced within the meaning of Strickland v. Washington, 466 U.S. 668 (1984), because the Court ultimately did not impose a Guidelines sentence. See Strickland, 466 U.S. at 694, 697 ("prejudice" means "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been ...