Opinion
09 Civ. 9814 (JSR) (GWG), 07 Cr. 609 (JSR).
June 29, 2010
REPORT AND RECOMMENDATION
Mentor Daija, currently an inmate at the Allenwood Low Federal Correctional Institution in White Deer, Pennsylvania, has brought this petition for a writ of habeas corpus under 28 U.S.C. § 2255. On February 19, 2008, Daija was sentenced to 180 months imprisonment after pleading guilty to drug conspiracy and gun charges. For the reasons set forth below, his petition should be denied.
I. BACKGROUND
A. Arrest, Indictment, and Guilty Plea
On May 4, 2007, Daija was arrested by police after he shot and killed an individual in an apartment building. See Memorandum of Law of the United States of America in Opposition to Petitioner's Motion to Correct, Vacate, and/or Set Aside His Sentence and Conviction Pursuant to 28 U.S.C. § 2255, filed Mar. 9, 2010 (Docket # 25 in 07 Cr. 609) ("Gov't Mem."), at 2-3. While in police custody, Daija made and signed the following statement describing what happened:
I came to New York from Canada about 4 months ago. I have been living at 215 E. Gunhill Rd Apt 3L with Altin and Alber. Today 5/4/07 Altin said to stay in the apartment and watch the marijuana. Altin told me someone is going to come pick it up. Altin came home from work and I told him I was going to get a sandwich.
Altin went to take a shower. I went into the hallway and two guys, 1 Spanish, 1 white are in the hall. The white guy grabbed me around the neck and put a gun to my head, the Spanish guy took the keys out of my pocket. They brought me back to the door and opened it. They said when we get in kill him. I hit the white guy and the gun fell. I picked up the gun and shot the white guy. The Spanish guy hit me in the back and knocked me down. He took the gun from me and tried to shoot me but there were no more bullets. The two guys ran toward the stairs. I went back in the apartment and took a black bag with money and a semiauto. I went to the stairs and saw the white guy and shot him again between the second and third floor on the stairs. Then I went up to the roof landing . . . [and] put the bag with money there. I then went back to apt 3L and went down the fire escape and over the fence into the cemetery where the cops grabbed me.
Statement by Mentor Daijia, dated May 4, 2007 (annexed as Ex. D to Gov't Mem.) ("Daija Statement").
Daija was indicted for the following offenses: (1) conspiracy to distribute marijuana in violation of 21 U.S.C. § 846; (2) possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 812, 841(a); (3) using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), (ii); (4) murder in violation of 18 U.S.C. § 924(j)(1); and (5) possession of a firearm by an unlawful alien in violation of 18 U.S.C. § 922(g)(5). Gov't Mem. at 2. At a hearing on September 6, 2007, defense counsel moved unsuccessfully to suppress Daija's statement to the police. See Gov't Mem. at 4 n. 3; Affidavit of Alexei Schacht, dated Mar. 5, 2010 (annexed as Ex. L to Gov't Mem.) ("Schacht Aff.") ¶ 3. After failing to suppress his confession, Daija's counsel advised him that "in [his] opinion, . . . [Daija's] best option was to plead guilty because he was likely to be convicted at trial." Schacht Aff. ¶ 3.
Prior to his plea, the Government provided a letter pursuant to United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991), giving the Government's view of the maximum and minimum terms of imprisonment for each charge in the indictment. See Letter to Alexei Schacht, Esq. from Michael J. Garcia, dated Nov. 2, 2007 (annexed as Ex. E to Gov't Mem.). On November 8, 2007, Daija pled guilty before District Judge Jed S. Rakoff to Counts One, Two, Three, and Five of the Indictment. See Transcript of Plea Hearing Held on November 8, 2007 (annexed as Ex. F to Gov't Mem.) ("Plea Tr."), at 30. The Government agreed to drop the murder charge in exchange for Daija's pleading guilty to the remaining counts of the Indictment. (Plea Tr. 13).
During the plea allocution, Daija stated that defense counsel had discussed the guilty plea with him, that he was satisfied with his counsel's representation, and that no one had made any promises to him in order to get him to plead guilty. (Plea Tr. 5, 14). Daija also stated that he understood that by pleading guilty he was waiving his right to a trial and acknowledged that at trial he would have the right to testify in his own defense. (Plea Tr. 5-7).
Judge Rakoff then proceeded to review the elements of each criminal charge and stated the maximum and mandatory punishments for each. (Plea Tr. 7-11). Daija stated that he understood the elements and potential punishments for each count. See id. At one point, defense counsel, Alexei Schacht, voiced his disagreement regarding the applicability of a ten-year mandatory minimum sentence for the charge of using and carrying a firearm in connection with the drug conspiracy charge. (Plea Tr. 9-10). Defense counsel stated that "we would hope to convince your Honor at the time of sentencing that he should not receive the ten year sentence for having discharged a firearm, because that discharge was justified." Id. In response to Judge Rakoff's questioning, Daija stated that he understood that he still faced "the possibility of these maximum and mandatory minimums, depending on how [the court] resolv[ed] that issue." (Plea Tr. 10). Daija also stated that he understood that the possible sentence range under the guidelines in his case was between 168 to 210 months in addition to a possible mandatory minimum consecutive sentence of 120 months for the gun possession charge. (Plea Tr. 12). He acknowledged that "if anyone [had] made any kind of promise, or prediction, or estimate, or representation to [him] of what [his] sentence will be in this case, that person could be wrong, and nevertheless, if [he pled] guilty [he] would still be bound to [the court's] sentence." (Plea Tr. 13).
Daija admitted that he agreed with others to sell 26 kilograms of marijuana, which was being stored in the apartment he shared with his co-conspirators. (See Plea Tr. 15-16). He stated that he believed the two men who attacked him in the hallway intended to rob him and that he shot one, later identified as Timur Alkhazov, with Alkhazov's own weapon before retrieving a nine-millimeter semiautomatic handgun from inside his shared apartment and shooting Alkhazov a second time. Id. Daija admitted that the nine-millimeter handgun was kept in the apartment for "narcotics activity," (Plea Tr. 18), but claimed that he shot Alkhazov a second time because "[h]e made a move" that scared Daija, who panicked and shot him again, (Plea Tr. 19).
Judge Rakoff raised a concern that Daija had not allocuted to all of the elements of Count Three — using and carrying a firearm during and in relation to or in furtherance of a drug trafficking crime. (Plea Tr. 21). The Government responded that when Daija shot the victim for the second time with the nine millimeter he had retrieved from inside the apartment, it was not an act of self-defense but an intentional killing aimed at keeping the victim from returning to steal the marijuana. (Plea Tr. 26-27). Judge Rakoff then accepted Daija's guilty plea to Counts One, Two, Three, and Five of the Indictment, (Plea Tr. 30), and scheduled a hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979), cert. denied, 444 U.S. 1073 (1980). (See Plea Tr. 31-33).
For a defendant to be found guilty under 18 U.S.C. § 924(c)(1), the Government must show that "the gun [was] possessed in furtherance of a drug crime." United States v. Lewter, 402 F.3d 319, 322 (2d Cir. 2005) (quoting United States v. Finley, 245 F.3d 199, 203 (2d Cir. 2001)). Under Second Circuit case law, this requirement can be "satisfied by a showing of some nexus between the firearm and the drug selling operation." Id.
B. Fatico Hearing and Sentencing
On December 13, 2007, Judge Rakoff began the Fatico hearing to decide whether (1) the court should impose the ten-year mandatory consecutive sentence for use of a firearm in furtherance of a drug conspiracy under Count Three of the Indictment and (2) the murder cross reference under the U.S. Sentencing Guideline § 2D1.1(d)(1) applied to Counts One, Two, and Five of the Indictment. See Transcript of Proceedings Held on December 13, 2007 and December 14, 2007 (annexed as Ex. B and C to Gov't Mem.) ("Hr."); United States v. Daija, 529 F. Supp. 2d 465, 466-67 (S.D.N.Y. 2008). The Government called two witnesses: Dr. James Gill, deputy chief medical examiner for Bronx County and Detective Michael Sinatra, an officer in the crime scene unit of the New York Police Department. (Gill: Hr. 2-30, Sinatra: Hr. 31-63). Dr. Gill testified that the victim was shot five times: in the head, the head and neck, the abdomen, the left forearm, and the left wrist. (Gill: Hr. 8-10). He testified that the two fatal shots to the head occurred in two separate locations: one in Daija's apartment and the other on the stairwell landing between the floors. (Gill: Hr. 22-24). Detective Sinatra testified that ballistics evidence suggested that whoever shot Alkhazov in the stairwell was moving from the third floor towards the second while firing. (See Sinatra: Hr. 51).
Daija was the sole witness on his own behalf. (Daija: Hr. 67-103). He testified that beginning in November 2006, he shared an apartment on East Gun Hill Road with two other men. (Daija: Hr. 68). Both men sold drugs and Daija knew that they kept a handgun in the apartment. (Daija: Hr. 69). On May 3, 2007, Daija agreed to watch over the marijuana stored in the apartment while one of his roommates went to work. (Daija: Hr. 70-71). While in the apartment the next day, Daija spoke with a man named "Mike" who arranged to pick up a pound of marijuana from Daija. (Daija: Hr. 71-72). Daija left the apartment with the intention of bringing the drugs downstairs to Mike but was then confronted by two men — one being Alkhazov — who forced him back into the apartment with a gun to his throat. (Daija: Hr. 72-73). When they threatened to kill him, Daija struggled, got control of the gun, and shot Alkhazov. (Daija: Hr. 72-73). The other assailant struck Daija and retrieved the gun, but could not shoot Daija because the gun had no more bullets. (Daija: Hr. 74). The two men then fled and Daija retrieved a nine-millimeter handgun from inside the apartment. (See Daija: Hr. 74, 76). Daija testified that he was too afraid to flee via the fire escape in his apartment because he feared a confrontation with "Mike," so he instead decided to leave via the elevator. Id. As he left the apartment, Daija saw Alkhazov in the stairwell and testified that he was frightened "because a minute before he wanted to kill me, and my heart was racing fast. I was really scared. And I shot again." (Daija: Hr. 75). Daija then "shot" the gun out a window on the fourth floor, retrieved a bag of money from the apartment, and tried to escape through a neighbor's apartment on the sixth floor. (Daija: Hr. 78, 90). When the neighbor refused to let him in, Daija left the money on the roof, reentered his apartment, and exited through the fire escape. (Daija: Hr. 78-79). He was later arrested by the police at a cemetery. (Daija: Hr. 79).
In his post-hearing submission to the district court, Daija conceded that he "was a member of a marijuana distribution conspiracy and that he is guilty of possessing a firearm . . . in furtherance of that marijuana conspiracy." Letter to the Honorable Jed. S. Rakoff from Alexei Schacht, dated Dec. 24, 2007 (annexed as Ex. G to Gov't Mem.), at 1. However, he claimed that he used the gun in self-defense, a claim "available to defendants charged with violating 18 U.S.C. § 924(c)," id. at 3, and therefore, he should be sentenced to a mandatory minimum of five years instead of ten years, id. at 6.
The district court ruled that Daija did not act in self-defense in shooting Alkhazov the second time and that he used the gun "for the purpose of helping to evade arrest for the underlying drug crime." Daija, 529 F. Supp. 2d at 469 (citations omitted). Thus, the Court found that both the murder cross reference and ten-year mandatory minimum applied.Id. at 470.
At sentencing, Judge Rakoff imposed concurrent 60 month sentences for Counts One, Two, and Five, and a consecutive sentence of 120 months for Count Three for a total of 180 months. See Transcript of Sentencing Hearing Held on February 19, 2008 (annexed as Ex. J to Gov't Mem.), at 16-17.
C. Direct Appeal
On appeal, Daija argued that (1) he "acted in self-defense and not in furtherance of the marijuana conspiracy when he shot" Alkhazov and (2) he did not commit murder and his sentence should be adjusted to discount the murder cross reference. Brief on Behalf of Defendant-Appellant with Special Appendix (annexed as Ex. K to Gov't Mem.), at 8-18. On October 2, 2009, the Second Circuit affirmed Daija's sentence finding "no error — much less clear error — in the District Court's factual findings and its evaluations of the testimony and witnesses presented." United States v. Daija, 333 F. App'x 658, 659 (2d Cir. 2009).
D. Habeas Petition
On November 30, 2009, Daija filed the instant petition seeking habeas corpus review of his sentence pursuant to 28 U.S.C. § 2255. See Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed Nov. 30, 2009 (Docket # 1 in 09 Civ. 9814) ("Pet."). In a memorandum attached to the petition, Daija argues that his sentence should be set aside on the grounds that (1) he was denied effective assistance of counsel and (2) there was insufficient evidence to find that he was guilty of a drug conspiracy to substantiate a charge under 18 U.S.C. § 924(c). Memorandum in Support of Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (annexed to Pet.) ("Pet. Mem."), at 3-5. On December 21, 2009, Daija filed a document entitled "Addendum to Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence." (Docket # 23 in 07 Cr. 0609) ("Pet. Addendum"). On March 9, 2010, the Government file a brief in opposition to the petition. See Gov't Mem. Daija has not submitted any response.
II. APPLICABLE LAW
A. Law Governing Review of Section 2255 Petition
Section 2255(a) of Title 28 of the United States Code provides that:
[a] prisoner in custody under sentence of a court established by Act of Congress 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, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Relief under this statute is available "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." Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (citation and internal quotation marks omitted).
III. DISCUSSION
Daija raises two grounds for habeas relief in his case: (1) ineffective assistance of counsel and (2) insufficient evidence to sustain the drug conspiracy charge. Pet. Mem. at 3-5. We address each claim separately.
A. Ineffective Assistance of Counsel
Daija's ineffective assistance of counsel argument relies on two separate claims: (1) that his attorney did not permit him to testify at trial and (2) that this attorney made false promises to him as to his sentence. Id. at 3. We begin our consideration of these claims by examining the law governing ineffective assistance of counsel.
To show ineffective assistance of counsel, a petitioner must satisfy both prongs of the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 687-96 (1984). The Strickland test has been characterized as "rigorous" and "highly demanding." Pavel v. Hollins, 261 F.3d 210, 216 (2d Cir. 2001) (citations omitted); accord Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007) (comparing a successful ineffective assistance of counsel habeas claim to "thread[ing] [a] needle"). To meet theStrickland standards, a petitioner must show (1) "that counsel's representation fell below an objective standard of reasonableness," 466 U.S. at 688, and (2) "any deficiencies in counsel's performance [were] prejudicial to the defense," id. at 692; accord Rompilla v. Beard, 545 U.S. 374, 380, 390 (2005); Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003).
In evaluating the first prong — whether counsel's performance fell below an objective standard of reasonableness — "judicial scrutiny . . . must be highly deferential," and the petitioner must overcome the "presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689) (internal quotation marks and bracketing omitted). "[F]or purposes of effective assistance, not every possible motion need be filed, but rather, only those having a solid foundation." United States v. Nersesian, 824 F.2d 1294, 1322 (2d Cir.) (citing United States v. Afflerbach, 754 F.2d 866, 870 (10th Cir.), cert. denied, 472 U.S. 1029 (1985)), cert. denied, 484 U.S. 958 (1987).
To satisfy the prejudice requirement, the petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; accord Lynn v. Bliden, 443 F.3d 238, 247-48 (2d Cir. 2006), cert. denied, 549 U.S. 1257 (2007).
1. Right to Testify
Daija states the facts underlying his first claim as follows:
Counsel for Petitioner convinced Petitioner to plead guilty without a plea agreement. Counsel's theory was that he thought Petitioner would not be a good witness and would never have Petitioner testify at trial. But, Petitioner wanted to take the witness stand at trial on his own behalf because he was innocent of the charges.
Pet. Mem. at 3. No further information is given as to when this conversation took place or the substance of this conversation. In addition, the paragraph quoted above appears only in an unsworn memorandum of law.
Accepting Daija's statements as true, they do not show ineffective assistance of counsel. While the decision as to whether a criminal defendant will testify at trial rests with the defendant, not defense counsel, Chang v. United States, 250 F.3d 79, 82-83 (2d Cir. 2001), it is proper for defense counsel to give his views and advice as to the advisability of testifying at trial, Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997) ("counsel should always advise the defendant about the benefits and hazards of testifying and not testifying, and may strongly advise the course that counsel thinks best"), cert denied, 522 U.S. 1128 (1998). Here, petitioner states that he "wanted" to testify at trial, but he never states that he communicated this to his counsel and concedes that he was merely "convinced" otherwise by his counsel. Pet. Mem. at 3. Petitioner points to nothing that prevented him from declining to plead guilty and insisting on his right to trial. And the transcript of the plea allocution shows he was fully informed of his rights in this regard and voluntarily waived them.
The relevant portion of the transcript from the plea hearing held on November 8, 2007 is as follows:
The Court: Before I can accept any plea of guilty, I need to make certain that you understand your rights that you will be giving up if you plead guilty, so I want to make sure that you understand the rights that you will be giving up. Do you understand that?
The Defendant: Yes.
. . .
The Court: . . . [A]t the trial you would have the right to testify if you wanted to, but no one could force you to testify if you did not want to, and no suggestion of guilty could be drawn against you if you chose not to testify. Do you understand that?
The Defendant: Yes.
(Plea Tr. 5-7).
Moreover, in response to Daija's petition, Schacht, Daija's trial counsel, provided an affidavit in which he states that he "did not force Mr. Daija to plead guilty. [He] informed him that it was his decision whether to go to trial and whether to testify at trial. Mr. Daija decided to plead guilty, and was allocuted as to his right to testify during his guilty plea." Schacht Aff. ¶ 4. He also states that after failing to suppress Daija's written statement to police he "advised Mr. Daija that, in my opinion, based on my knowledge of the facts and circumstances of his case, his best option was to plead guilty because he was likely to be convicted at trial." Id. ¶ 3. Daija has not filed any affidavit or other papers contravening his counsel's representations as to what occurred between them. Plainly, counsel's strategic advice to Daija falls within the "objective standard of reasonableness" under Strickland, 466 U.S. at 688. Indeed, courts have recognized that it may be sound advice, and thus not ineffective assistance of counsel, for an attorney to urge a client not to testify at trial. See, e.g., Duncan v. Fisher, 410 F. Supp.2d 101, 118-19 (E.D.N.Y. 2006) (no ineffective assistance claim where counsel's advice not to testify at trial was "reasonable and proper").
2. Promise as to Sentence
Daija asserts that
[c]ounsel was further ineffective when he made false claims to Petitioner to induce a guilty plea even though Petitioner wanted to proceed to a jury trial. Counsel for Petitioner promised an 8 year prison sentence if Petitioner pled guilty without a plea agreement. Counsel for Petitioner informed Petitioner by signing a plea agreement, Petitioner would agree to an 11-1/2 year prison sentence.
Pet. Mem. at 3. Again, Daija's assertions come in an unsworn memorandum of law. They are also flatly contradicted by defense counsel's affidavit and by Daija's own statements during his plea allocution.
In the affidavit, defense counsel states that he discussed with Daija that he faced a potential "mandatory minimum sentence of 10 years' imprisonment and a maximum term of life" under the Sentencing Guidelines. Schacht Aff. ¶ 5. He also explained to Daija "before he pleaded guilty that there was no guarantee or promise concerning what sentence he would receive, and that it was entirely within the discretion of the Court." Id. ¶ 6.
During the plea allocution, Daija affirmed that no one had "made any kind of promise to [him] or offered [him] any inducement to get [him] to plead guilty." (Plea Tr. 14). Daija also stated that he understood that "if anyone [had] made any kind of promise, or prediction, or estimate, or representation . . . of what [his] sentence [would] be in this case, that person could be wrong" and that Daija would "still be bound to the" district court's sentence. (Plea Tr. 13).
Putting aside defense counsel's affidavit, the allocution by itself is sufficient to find that Daija understood that there was no guarantee that he would receive a sentence of 11-1/2 years or less — regardless of what counsel had allegedly "promised" him beforehand. A federal habeas court is entitled to rely on statements made during an allocution even in the face of a later, contrary claim that a plea was not knowing or voluntary. See, e.g., Garcia-Santos v. United States, 273 F.3d 506, 508 (2d Cir. 2001) (per curiam); United States v. Hernandez, 242 F.3d 110, 112-13 (2d Cir. 2001) (per curiam) (citing cases); United States v. Juncal, 245 F.3d 166, 171 (2d Cir. 2001) (testimony at allocution "carries such a strong presumption of accuracy that a district court does not, absent a substantial reason to find otherwise, abuse its discretion in discrediting later self-serving and contradictory testimony as to whether a plea was knowingly and intelligently made.") (citations omitted). Thus, federal courts reviewing habeas claims similar to those Daija asserts have held that where a defendant affirms during a plea hearing that he or she understands that the court may impose a longer sentence despite any assurances the defendant may have received, the defendant may not collaterally challenge the voluntariness of the plea on those grounds. See, e.g., Brama v. United States, 2010 WL 1253644, at *3 (S.D.N.Y. Mar. 16, 2010) (defendant's statements during plea allocations reflect he understood that "an 87 month sentence was within the Court's discretion") (citations omitted);Ochoa-Suarez v. United States, 2008 WL 2220637, at *4 (S.D.N.Y. May 27, 2008) (where petitioner's claim as to lack of understanding of applicability mandatory minimum sentence was contradicted by plea allocution, it would be "summarily rejected") (citing, inter alia,Hernandez, 242 F.3d at 114 (a "district court [is] entitled to rely upon the defendant's sworn statements, made in open court with the assistance of a translator, that he understood the consequences of his plea, had discussed the plea with his attorney . . . and had been made no promises except those contained in the plea agreement") (citations omitted)). Accordingly, Daija is not entitled to federal habeas relief on the ground that his plea was not knowing and voluntary.
B. Insufficient Evidence to Apply 10-Year Mandatory Minimum Under 18 U.S.C. § 924(c)
Daija claims that the Government did not offer sufficient evidence to warrant imposition of the ten-year mandatory minimum under 18 U.S.C. § 924(c) because of the lack of evidence he was involved in a drug conspiracy. Pet. at 4-5. Daija asserts that the Government never proved that Alkhazov attacked Daija in an attempt to steal drugs; or that the apartment Daija shared "was a location where drugs were sold or stored"; that the Government never addressed the fact that Daija "was only in the United States for 4 months," making it unlikely that he was "involved in this drug conspiracy"; and the evidence presented at the sentencing hearing definitively demonstrates that Daija was not involved in a drug conspiracy and "used the weapon for self defense." Id. at 4-5;accord Pet. Addendum at 1-2. Daija's claim that the ten-year mandatory minimum sentence in section 924(c) did not apply to his case, however, was litigated on direct appeal and thus cannot be raised again on habeas review. See, e.g., United States v. Sanin, 252 F.3d 79, 83 (2d Cir.) ("a § 2255 petition cannot be used to relitigate questions which were raised and considered on direct appeal" (citations and internal quotation marks omitted)), cert. denied, 534 U.S. 1008 (2001). To the extent he is raising new arguments regarding the applicability of section 924(c) to this case, they were required to be raised on direct review. See, e.g.,Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007) (other than ineffective assistance of counsel claims, claims generally "may not be presented in a habeas petition where the petitioner failed to properly raise the claim on direct review") (citation omitted); Gotti v. United States, 622 F. Supp. 2d 87, 92 (S.D.N.Y. 2009) ("petition for habeas corpus may not provide a second bite at the apple, i.e., another chance to raise issues that were or could have been raised on appeal") (citation omitted and emphasis in original). While there exists an exception to this rule where "cause" or "actual innocence" is shown, id., no such showing has been made here.
In any event, Daija's allocution provided ample evidence that he was involved in a drug conspiracy and thus the claim would have to be rejected on the merits.
Conclusion
For the foregoing reasons, Daija's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days including weekends and holidays from service of this Report and Recommendation to serve and file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Jed. S. Rakoff, and to the undersigned, at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Rakoff. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).