United States District Court, E.D. New York
For Petitioner: Whetsel Wade, pro se Brooklyn, NY
Respondent: Lara Treinis Gatz, Esq. United States Attorneys Office Central Islip, NY
MEMORANDUM & ORDER
JOANNA SEYBERT, District Judge.
Whehsel Wade ("Petitioner") petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. For the following reasons, his Petition is DENIED.
Petitioner was charged under five criminal counts in connection with a robbery in Rockville Centre, New York. On December 23, 2005, Petitioner pled guilty to one count of Conspiracy to Interfere with Commerce by Threats or Violence in violation of 18 U.S.C. § 1951 (a) and one count of Brandishing a Firearm During a Crime of Violence in violation of 18 U.S.C. § 924 (c) (1) (A) (ii). On August 14, 2009, the Court sentenced Petitioner to twenty-five months in prison on the conspiracy count and fifty months in prison on the firearm count, for a total of seventy-five months, followed by five years post-release supervision. (See Case Number 05-CR-0016, Docket Entry 663.)
Petitioner now asserts that he was denied his Sixth Amendment right to effective assistance of counsel when his trial counsel failed to file a timely notice of appeal of Petitioner's prison sentence. (Pet. ¶ 12.) According to Petitioner, he told his counsel that if he [Petitioner] received more than a fortyeight month sentence, Petitioner wanted counsel to appeal. (Pet. ¶ 12.) Petitioner maintains that when he received his seventy-five month sentence, he again told counsel to file an appeal. (Pet. ¶ 12.) Despite counsel's promises to do so, an appeal was not filed. (Pet. ¶ 12.)
The Court will first address the applicable legal standard before turning to the merits of the Petition.
I. Legal Standard
"The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law." Harrington v. Richter, - U.S. -, 131 S.Ct. 770, 780, 178 L.Ed.2d 624 (2011).
A prisoner in custody under sentence of a [federal] court... 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... may move the court which ...