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McFarlane v. United States

United States District Court, S.D. New York

February 27, 2014

ROGER McFARLANE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

Roger McFarlane, pro se, No. 78221-083, Rivers Correctional Institution, Winton, NC, for the Petitioner.

Janis Echenberg, and Jonathan Cohen, Assistant United States Attorneys, New York, NY, for the Respondent.

OPINION AND ORDER

DENISE COTE, District Judge.

On July 16, 2013, Roger McFarlane ("McFarlane") filed a petition pursuant to 28 U.S.C. § 2255 for a writ of habeas corpus. McFarlane asserts that his defense counsel provided ineffective assistance of counsel to him. For the following reasons, his petition is denied.

BACKGROUND

Following his arrest in December 2010, on April 13, 2011 McFarlane was indicted on one count of conspiracy to distribute 1, 000 kilograms of marijuana, occurring from on or about 2008 to December 2, 2009, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A). On April 27, a Criminal Justice Act attorney was appointed to represent McFarlane.

On August 18, a superseding indictment was filed, charging McFarlane - along with Jason Dibari, Corey Daiker, Richard Cunnius, and Thomas Green, Jr. - with one count of conspiracy to distribute 1, 000 kilograms of marijuana, occurring from on or about 2008 to January 2010, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A). On August 23, trial was scheduled to begin on March 12, 2012. On or about October 27, Steven E. Savage was retained by petitioner and filed a notice of appearance. On December 9, the Court approved this substitution of counsel.

All four co-defendants, but not McFarlane, moved to sever their trials from each other. By Order of February 9, 2012, the Court denied severance as premature. As it had not yet been determined which co-defendants would proceed to trial, it was not necessary to determine at the time whether severance should be granted. A second superseding indictment, filed on February 10, extended the period of time for the conspiracy as occurring from on or about from 2006 to January 2010.

As of March 1, 2012, the date of the final pretrial conference, all four co-defendants had pleaded guilty. Following the conference during which the Court made various rulings, McFarlane agreed to plead guilty to the lesser included offense of conspiracy to distribute 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 846, 841(b)(1)(B), in return for the Government dropping the § 841(b)(1)(A) charge. Additionally, under the terms of his plea agreement with the Government, McFarlane agreed to waive his right to appeal or pursue post-conviction remedies so long as his sentence did not exceed 108 months of imprisonment.

That same day, McFarlane entered his plea of guilty. After swearing McFarlane in and determining that he was competent to plead guilty, the Court confirmed that McFarlane had been adequately advised by his counsel of the consequences of pleading guilty:

Court: Have you had a sufficient opportunity to discuss with [defense counsel] the charge to which you'll be pleading guilty, any defenses you have to that charge, and the consequences to you of entering a plea of guilty?
Defendant: Yes, your Honor.
Court: Are you satisfied with the representation your attorney has given you?
Defendant: Yes, your Honor.

The Court also addressed the terms of the plea agreement.

Court: Now, I understand there is a plea agreement between you and the government. Do you have a copy of ...

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