United States District Court, E.D. New York
SANDRA J. FEUERSTEIN, District Judge.
Darron Roberts ("petitioner") seeks a writ of habeas corpus pursuant to a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (the "Petition") [Docket Entry No. 1]. For the reasons that follow, the Petition is denied.
In February 2009, following a tip from a confidential informant ("CI"), a joint investigation was undertaken by the Drug Enforcement Administration, the Nassau County Police Department, and the Hempstead Village Police Department into the narcotics distribution activities of petitioner. (Opp., Ex. A (Presentence Investigation Report ("PSR")), 3). On February 25, 2009, petitioner sold 17.633 grams of cocaine base to a CI in Uniondale, New York. ( Id. ). On March 10, 2009, petitioner sold 16.953 grams of cocaine base, 10.234 grams of cocaine, and 2.546 grams of marijuana to a CI in Freeport, New York. ( Id. ). On March 19, 2009, petitioner sold 19.306 grams of cocaine base, and 5.386 grams of cocaine to a CI in Hempstead, New York. ( Id. ). On June 5, 2009, petitioner was arrested while in the process of distributing drugs to a CI in Freeport, New York, and a search warrant was executed at petitioner's home the next day, and charged with possession with intent to distribute 3.855 grams of cocaine base, 12.672 grams of cocaine, and 29.570 grams of marijuana. ( Id. at 3-4). The quantities of narcotics obtained from defendant during these sales and the execution of the search warrant totaled 57.747 grams of cocaine base, 28.292 grams of cocaine, and 32.116 grams of marijuana. ( Id. at 4).
On July 2, 2009, petitioner was indicted in the United States District Court, Eastern District of New York, on four (4) counts (the "Indictment"), charging that: (1) on February 25, 2009, petitioner distributed and possessed with intent to distribute five (5) grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), and 18 U.S.C. § 3551 et seq. ; (2) on March 10, 2009, petitioner distributed and possessed with intent to distribute five (5) grams or more of cocaine base, cocaine, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), (b)(1)(C), (b)(1)(D), and 18 U.S.C. § 3551 et seq. ; (3) on March 19, 2009, petitioner distributed and possessed with intent to distribute five (5) grams or more of cocaine base and cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), (b)(1)(C), and 18 U.S.C. § 3551 et seq. ; and (4) on June 5, 2009, petitioner possessed with intent to distribute cocaine base, cocaine, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), (b)(1)(D), and 18 U.S.C. § 3551 et seq. (Indictment, United States v. Roberts, 09-cr-439 (E.D.N.Y. July 2, 2009), ECF. No. 11).
On February 17, 2010, petitioner pleaded guilty to count two (2) of the Indictment, which charged petitioner in connection with the March 10, 2009 sale of cocaine base, cocaine, and marijuana. (PSR, at 3). As indicated in the plea agreement signed by petitioner on February 17, 2010 (the "Plea Agreement"), the count to which petitioner pleaded guilty carried a maximum sentence of forty (40) years imprisonment, a mandatory minimum sentence of five (5) years imprisonment, a maximum period of supervised release of life, a maximum fine of two million dollars ($2, 000, 000.00), and a mandatory one hundred dollar ($100.00) special assessment. (Opp., Ex. C (Plea Agreement), at 1-2). Based on the likely adjusted offense level under the United States Sentencing Guidelines (the "Guidelines") of twenty-seven (27),  the Plea Agreement set the range of imprisonment at one hundred twenty (120) to one hundred fifty (150) months, assuming that the defendant would be sentenced within Criminal History Category V. ( Id. at 2-3). Petitioner specifically agreed "not to file an appeal or otherwise challenge by petition pursuant to 28 U.S.C. § 2255 or any other provision, the conviction or sentence in the event that the Court imposes a term of imprisonment of 188 months or below" (the "2255 Waiver"). ( Id., at 3).
On June 3, 2010, the United States Probation Department submitted its presentence investigation report ("PSR") in connection with petitioner's upcoming sentencing. (PSR, at 1). The PSR concluded that while petitioner only pleaded guilty to the count charging him with the sale of drugs on March 10, 2009, the drugs sold by petitioner on February 25, 2009 and March 19, 2009, as well as the drugs he possessed with intent to sell on June 5, 2009, were considered relevant conduct under the Guidelines. ( Id. ¶ 3). Accordingly, the PSR concluded that petitioner was accountable for 57.747 grams of cocaine base, 28.292 grams of cocaine, and 32.116 grams of marijuana. ( Id. ¶ 4). The PSR recommended that the base offense level of thirty-two (32) established by Guideline 2D1.1 be reduced by two (2) levels "since the offenses involved cocaine base and another drug, " and another three (3) level downward adjustment for acceptance of responsibility. ( Id. 9, 15). Consequently, the PSR assigned petitioner a base Guidelines score of twenty-seven (27). ( Id. ¶ 16).
On July 26, 2010, a sentencing hearing was held before this Court, during which petitioner's counsel "encourage[d] the Court to adopt the more progressive view" set forth by the United States Supreme Court in Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009), "with regards to the ratio that should be used when determining the weight of drugs, " which would result in a Guidelines range of eighty-four (84) to one hundred five (105) months. (Opp., Ex. D (Sentencing Hr'g Tr.), 3, 6-7). Petitioner's counsel acknowledged that without Spears, the Guidelines range would be one hundred twenty (120) to one hundred fifty (150) months. ( Id. at 6). Upon consideration of "everything that's been presented [at the hearing] and Spears as well as the government's position, " the Court sentenced petitioner to one hundred five (105) months custody plus four (4) years of supervised release." ( Id. at 10-11).
Petitioner did not file an appeal with the United States Court of Appeals for the Second Circuit ("Second Circuit"). On September 13, 2011, petitioner filed the instant Petition, alleging ineffective assistance of counsel based on: (1) counsel's failure to argue against an "affirmative illegal search and seizure of [petitioner's] residence"; (2) counsel's failure to raise "arguments favorable to consideration of a non-Guidelines sentence or the Spears argument of the 20-to-1 [sic] ratio disparity"; and (3) counsel's "refus[al] to file an appeal when asked to do so by the [petitioner]." (Pet., 5-8). On April 9, 2012, the government opposed the Petition. (Opp. [Docket Entry No. 5]).
A. Enforceability of the 2255 Waiver
"In general, a defendant's knowing and voluntary waiver of his right to appeal a sentence within an agreed guideline range is enforceable." United States v. Rosa, 123 F.3d 94, 97 (2d Cir. 1997) (collecting Second Circuit cases). So, too, is a knowing and voluntary waiver of the right to litigate pursuant to Section 2255. See Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002) ("There is no general bar to a waiver of collateral attack rights in a plea agreement.") (citation omitted). However, this "waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been produced, here, the plea agreement." Id. An "appeal waiver would be unenforceable" if the petitioner has a "meritorious" "claim that the waiver was the result of ineffective assistance of counsel." United States v. Monzon, 359 F.3d 110, 118-19 (2d Cir. 2004); see also Marulanda v. United States, No. 07 CV 5301, 2009 WL 1546315, at *2 (E.D.N.Y. June 2, 2009) ("One such exception [to the enforceability of section 2255 waivers] is a claim that ineffective assistance of counsel caused the defendant to accept the plea agreement containing the waiver.").
To establish that ineffective assistance of counsel, petitioner must show (1) that "counsel's representation fell below an objective standard of reasonableness, " Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and (2) "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "To raise a claim despite a guilty plea or appeal waiver, the petitioner must show that the plea agreement was not knowing and voluntary because the advice he received from counsel was not within acceptable standards." Parisi v. United States, 529 F.3d 134, 138 (2d Cir. 2008) (internal quotation marks and citations omitted).
Pursuant to the 2255 Waiver in his Plea Agreement with the government, petitioner expressly waived his right to challenge his conviction or sentence by filing a 2255 petition, in the event that the Court imposed a term of imprisonment of one hundred eighty-eight (188) months or below (the "2255 Waiver"). (Plea Agreement, at 3). Petitioner now challenges the validity of the Plea Agreement, alleging that he "was coerced and induced by Counsel to accept the plea based on the Fair Sentencing Act being on the horizon and that he would put off my sentencing until November to ensure the law would apply to me and that [petitioner] did not have a viable defense against the charges and pleading now would be in [his] best interest." (Pet., at 5). To support this argument, petitioner contends that his counsel advanced the sentencing from November 2010 to a date before the Fair Sentencing Act ("FSA") became effective, without first consulting petitioner, which caused petitioner to receive a much harsher sentence. ( Id. at 6-7). Yet, the record of petitioner's criminal proceeding lacks any indication that his sentencing was originally scheduled for November 2010, and instead, reveals that petitioner was initially scheduled to be sentenced on July 15, 2010, but the sentencing was adjourned to July 26, 2010 upon request of petitioner's counsel. ( United States v. Roberts, ...