Opinion
04 Civ. 7144 (SAS).
March 7, 2006
Petitioner (Pro Se): Victor Grullon #4461-054 FCC Coleman Medium Coleman, FL.
For Respondent: Joshua Klein Assistant United States Attorney New York, New York.
OPINION AND ORDER
Victor Grullon, proceeding pro se, has moved to vacate, set aside, or correct his sentence pursuant to section 2255 of Title 28 of the United States Code ("section 2255"). Grullon argues that: (1) he was denied due process and his Sixth Amendment right to a jury trial; (2) he was denied effective assistance of trial counsel; and (3) the court abused its discretion in failing to depart downwardly on grounds that his mental capacity warranted a minor role adjustment. Because these claims are procedurally barred and/or without merit, Grullon's motion is denied.
I. BACKGROUND
A. The Jury's Verdict
In Superseding Indictment S3 99 CR 1142, Grullon was charged with conspiracy to distribute narcotics in violation of 21 U.S.C. § 846, distribution of crack cocaine in violation of 21 U.S.C. § 841(b)(1)(A), distribution of powder cocaine in violation of 21 U.S.C. § 841(b)(1)(C), and illegal re-entry in violation of 8 U.S.C. § 1326. On November 20, 2000, a jury found Grullon guilty of all four counts. In addition the jury returned a special verdict regarding drug quantity. Specifically, the jury found that more than five kilograms of cocaine and more than fifty grams of crack cocaine were involved in Count One (the narcotics conspiracy count) and that more than fifty grams of crack cocaine were involved in Count Two (the substantive crack cocaine distribution count).
These are the threshold quantities that trigger the ten-year statutory mandatory minimum found in 21 U.S.C. § 841(b)(1)(A). This section also authorizes a maximum sentence of life imprisonment based on these quantities. In cases where the defendant has a prior felony narcotics conviction and the Government files a prior felony information, the statutory mandatory minimum increases to twenty years. See 21 U.S.C. § 841(b)(1)(A).
B. The Latin Brothers Billiards Club
From late 1998 to late 1999, Grullon participated in a drug trafficking conspiracy known as the "Latin Brothers Billiards Club" ("the Club"). Grullon first provided security to the Club, then began selling drugs to the Club's retail customers, and eventually managed the Club and served as liaison to the Club's drug suppliers. Grullon was among the few individuals at the Club who counted the cash proceeds from the organization's drug sales. Grullon also stored firearms and cooked and packaged crack cocaine at one of the Club's stash apartments located at 502 West 139th Street, Apartment 22, which was also Grullon's residence.
See Trial Transcript ("Tr.") at 158, 201, 194-98, 454, 459-60, 463-67.
See id. at 208.
See id. at 157, 204, 371-74, 476-77.
The evidence at trial demonstrated that the Club operated a thriving drug business that distributed substantial quantities of powder and crack cocaine on both a retail and wholesale level. At trial, it was also established that Grullon was well aware of the scale of the operations and actively participated in them. During its investigation of the Club, the Drug Enforcement Agency ("DEA") recovered ledgers used by Club managers to document the total amounts of powder and crack cocaine sold by the Club. These ledgers contained two columns, entitled "P" and "C" for powder cocaine and crack cocaine respectively, with numbers written in the columns. The numbers on these ledgers showed that hundreds of grams of powder and crack cocaine were sold each day. These ledgers also contained the names of persons employed by the Club with numbers written next to their names. The numbers represented the amounts of money paid to the members for their work in selling narcotics. On occasion, Grullon received $2,000 weekly from the Club as his "paycheck." Grullon was plainly aware of the amounts received by others in the conspiracy as he often handled the cash when the narcotics proceeds were distributed to the Club's employees.
See id. at 67, 137, 207, 464-65.
See id. at 218-19, 222-25.
See id. at 215-16.
See id. at 222-25.
Aside from its retail operations, the Club also conducted a significant wholesale business from other locations. The wholesale business distributed two to four kilograms of cocaine per week. The Club maintained stash apartments which stored kilogram quantities of cocaine and were used for selling the larger, wholesale quantities of cocaine. The DEA raided two such apartments. At one apartment, the DEA found one kilogram of powder cocaine. From another apartment, the DEA seized five one-kilogram packages of cocaine and a number of smaller packages containing cocaine and crack cocaine. In total, the DEA seized approximately six kilograms of powder cocaine and 570 grams of crack cocaine. Grullon was plainly aware of the Club's wholesale business, having once packaged a few kilograms of cocaine in his apartment.
See id. at 449.
See id. at 174.
See id. at 70-71.
See id. at 540-44.
See id. at 551.
See Presentence Report ("PSR") ¶ 51.
See Tr. at 211.
C. Post-Conviction Proceedings
1. The PSR
In preparation for sentencing, the Probation Department applied section 3D1.2 of the United States Sentencing Guidelines ("U.S.S.G.") and grouped Grullon's offenses into two groups: one group relating to Grullon's drug offenses and the other group relating to his illegal re-entry. In Group One, the Probation Department calculated a base offense level of 38 pursuant to section 2D1.1(c)(1), based on a drug quantity of more than 1.5 kilograms of crack cocaine and more than 150 kilograms of powder cocaine. A two-level upward adjustment was added pursuant to section 2D1.1(b)(1) because the Club possessed firearms to further its narcotics trafficking. A four-level upward adjustment was then added pursuant to section 3B1.1(a) because Grullon was a leader of a criminal enterprise involving five or more participants. Finally, a two-level upward adjustment for obstruction of justice was added pursuant to section 3C1.1 because Grullon attempted to influence witnesses not to testify against him at trial. The total offense level for Group One was 46.
See PSR ¶¶ 61-66.
In Group Two, the Probation Department calculated a base offense level of 8, pursuant to section 2L1.2, to which a sixteen-level upward adjustment was added pursuant to section 2L1.2(b)(2) because Grullon was previously deported after conviction for an aggravated felony. A two-level upward adjustment was then added pursuant to section 3C1.1 because Grullon provided materially false information to the Court at his presentment. The total offense level for Group Two was 26.
See id. ¶¶ 67-72.
Combining the two groups pursuant to section 3D1.4 resulted in a total offense level of 46. Because Grullon had a Criminal History Category of III, the Guidelines required a sentence of life imprisonment.
See id. ¶¶ 84-97.
Grullon filed objections to the PSR. Among other things, Grullon argued that: (1) he should not receive any leadership role points because he had mental problems that precluded him from being able to fulfill any meaningful managerial role; (2) he should not receive an enhancement for obstruction of justice because he lacked specific intent to obstruct justice and his actions did not succeed in hindering the investigation and prosecution of his crimes; and (3) he should not receive an enhancement for possession of a firearm because the guns stored in his apartment were not his. Grullon further claimed there was insufficient evidence for the Court to find that the distribution of more than 1.5 kilograms of crack cocaine and more than 150 kilograms of powder cocaine was foreseeable to him. 2. The Fatico Hearing
See Letter from Oliver A. Smith, Grullon's attorney, to the Court dated February 14, 2001, at 4-5.
See id. at 6.
In response to these objections, I held a hearing pursuant to United States v. Fatico. Grullon was the sole witness at the Fatico hearing. Grullon denied having any leadership or managerial role within the Club and claimed that he never dealt with any of the Club's suppliers. However, he did acknowledge that he knew about one cocaine transaction involving two or three kilograms, although he denied participating in wholesale transactions directly. Moreover, Grullon admitted that he was aware that drugs were stored in the Club's stash apartment at 502 West 139th Street, where he lived. Grullon also admitted that he knew about one other stash apartment, as well as the identity of the person who worked there on behalf of the Club. Grullon further acknowledged that he weighed drugs on occasion at this second apartment, although he claimed that these occasions were rare.
579 F.2d 707 (2d Cir. 1978).
See Transcript of Hearing held on April 16 and 17, 2001, at 10-11.
See id. at 30-32.
See id. at 11-12.
See id. at 34.
See id. at 31-32.
3. Proceedings Relating to Grullon's Competency
Prior to trial, Grullon had been examined by two psychiatrists. Both of those experts, Dr. Lawrence Siegel and Dr. Mark Brooks, concluded that Grullon's alleged mental problems were exaggerated, if not altogether fabricated. Based on the reports of these two experts, I found Grullon competent to stand trial.
Following the Fatico hearing, I ordered Grullon to undergo psychological testing in light of his alleged mental problems. Dr. Sanford L. Drob, a forensic psychologist, examined Grullon and submitted his report on October 15, 2001. Like Drs. Siegel and Brooks, Dr. Drob stated that Grullon was cognitively functional. He noted that Grullon's description of his criminal activity was "relevant and coherent and relatively detailed." Grullon acknowledged "his guilt as a member of the drug conspiracy who worked security and did some sales." Dr. Drob concluded that "there is no evidence of psychotic process or thinking disturbance." With respect to whether Grullon was capable of taking a leadership role in the drug conspiracy, Dr. Drob found that Grullon's self-reported cognitive problems and substance abuse "would have limited his capacity to exercise such a leadership role."
Forensic Pschology Evaluation of Sanford Drob, dated September 24, 2001, at 7.
Id. at 8.
Id. at 14.
In conclusion, Dr. Drob opined that Grullon's self-reported cognitive difficulties likely stemmed from stress caused by his arrest and prosecution, but noted that he could not render a firm opinion as to Grullon's symptoms prior to arrest, as there was insufficient information regarding Grullon's cognitive abilities during that period. Dr. Drob then opined that prior to his arrest Grullon "very likely suffered from cognitive deficits, severe drug addiction, and alcoholism, as well as possibly depression and other psychological disorders that would have limited his capacity to take on a leadership role in a drug conspiracy."
Id. at 14-15.
4. The Sentencing
On April 4, 2002, I sentenced Grullon, finding him accountable for the distribution of at least 150 kilograms of powder cocaine and 1.5 kilograms of crack cocaine, as calculated in the PSR. I applied a two-level enhancement for possession of a weapon given Grullon's admission that he knew an Uzi was stored in his apartment and that members of the Club had access to it. I also applied a two-level enhancement for obstruction of justice based on Grullon's lies to the Magistrate Judge during his bail proceedings. However, I declined to impose any leadership role enhancement, because I did not credit some of the testimony provided by the cooperating witnesses regarding Grullon's leadership. I also took into account that Grullon may have been cognitively impaired to some degree.
See April 4, 2002 Sentencing Transcript at 9-10.
See id. at 10-11.
See id. at 11.
Accordingly, I found Grullon's adjusted offense level to be 42. Offense level 42 and Criminal History Category III resulted in a Guidelines range of thirty years to life imprisonment on Counts One and Two. I therefore imposed a sentence of thirty years imprisonment on these counts. I also imposed twenty years imprisonment on Count Three and ten years imprisonment on Count Four, to run concurrently with each other and Counts One and Two.
5. The Direct Appeal
Following his conviction, Grullon filed a timely notice of appeal. On appeal, Grullon raised one argument — that the Court committed clear error in calculating the quantity of drugs attributable to him as more than 150 kilograms of powder cocaine and more than 1.5 kilograms of crack cocaine. In this regard, Grullon made the following arguments: (1) that the Court misread a portion of the trial record in calculating drug quantity; (2) that the Court improperly credited the testimony of two cooperating witnesses with respect to drug quantity after rejecting their testimony with respect to Grullon's leadership role; and (3) that the Court failed to consider the experts' psychiatric reports in assessing Grullon's ability to foresee the quantities of drugs distributed by the organization he worked for. On July 24, 2003, the Second Circuit affirmed Grullon's conviction.
On appeal, Grullon conceded that Apprendi v. New Jersey, 530 U.S. 466 (2000), was not implicated because the jury made findings that triggered a statutory maximum penalty of life imprisonment under 21 U.S.C. § 841(b)(1)(A). See United States v. Thomas, 274 F.3d 655, 660 (2d Cir. 2001) (en banc) ("The constitutional rule of Apprendi does not apply where the sentence imposed is not greater than the prescribed statutory maximum for the offense of conviction.").
See Mandate No. 02-1221.
II. LEGAL STANDARDS
A. Section 2255 Standard
Section 2255 allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. Accordingly, collateral relief under section 2255 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.'"
See 28 U.S.C. § 2255.
United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Accord United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989) ("Habeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.").
B. Ineffective Assistance of Counsel
A petitioner seeking to attack his sentence based on ineffective assistance of counsel must: (1) show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) "affirmatively prove prejudice," i.e., demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." The two-prong Strickland test applies to claims of ineffective assistance of appellate counsel as well as of trial counsel.
Strickland v. Washington, 466 U.S. 668, 688, 693-94 (1984).
See Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) (citing Evitts v. Lucey, 469 U.S. 387, 396-97 (1985)).
In analyzing a claim that counsel's performance fell short of constitutional standards, "it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument." Instead, the court "must `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . .'" As explained by the Supreme Court,
Id.
Id. (quoting Strickland, 466 U.S. at 689).
strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.
Strickland, 466 U.S. at 690-91.
Moreover, "[i]n assessing the attorney's performance, a reviewing court must judge his conduct on the basis of the facts of the particular case, `viewed as of the time of counsel's conduct,' and may not use hindsight to second-guess his strategy choices." Thus, a petitioner cannot prevail on a claim of ineffective assistance merely because he disagrees with his counsel's strategy.
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 690).
See Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (explaining that an indigent appellant does not have a constitutional right to compel appointed counsel to press every nonfrivolous point on appeal and recognizing "the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review"); Mayo, 13 F.3d at 533 ("[I]t is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made.").
A habeas petitioner "may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." However, "[t]he failure to include a meritless argument does not fall outside the wide range of professionally competent assistance to which [a] [p]etitioner [i]s entitled." Finally, even if an attorney's performance were objectively unreasonable and unprofessional, the defendant must still prove prejudice. That is, the defendant must show "`a reasonable probability' that, but for the deficiency, `the result of the proceeding would have been different.'"
Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000).
Aparicio, 269 F.3d at 99 (internal quotation marks and citations omitted).
Id. at 95 (quoting Strickland, 466 U.S. at 694).
C. Procedural Default
It is well-settled that federal prisoners may not employ section 2255 as a substitute for direct appeal. As the Supreme Court explained in United States v. Frady, "[o]nce the defendant's chance to appeal has been waived or exhausted . . . we are entitled to presume he stands fairly and finally convicted, especially when, as here, he had already has a fair opportunity to present his federal claims to a federal forum." "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either `cause' and actual `prejudice,' or that he is `actually innocent.'"
See, e.g., United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Addonizio, 442 U.S. 178, 184-85 (1979).
Frady, 456 U.S. at 164.
Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted). Accord Massaro v. United States, 538 U.S. 500, 504 (2003) ("Claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice."); United States v. Warren, 335 F.3d 76, 79 (2d Cir. 2003) ("If the defendant fails to raise a claim of error on direct appeal, habeas relief is generally available only upon a showing of cause and prejudice.").
The Supreme Court has made clear that "cause" is measured by a stringent standard of diligence. Furthermore, "the resulting prejudice must create an ` actual and substantial disadvantage, infecting [the petitioner's] entire trial with error of constitutional dimensions.'"
See, e.g., Coleman v. Thompson, 501 U.S. 722, 753 (1991) ("cause" is "something external to the petitioner" that "cannot be fairly attributed to him"; "[a]ttorney ignorance or inadvertence is not `cause'") (emphasis in original); Murray v. Carrier, 477 U.S. 478, 488 (1986) (("[C]ause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.").
Narvaez v. United States, No. 95 CR 941, 2003 WL 21749638, at *2 (S.D.N.Y. July 29, 2003) (quoting Frady, 456 U.S. at 170) (emphasis in original).
If a defendant fails to establish "cause" and "prejudice" to excuse a procedural default, he can obtain collateral review of his constitutional claim only by demonstrating that the constitutional error "has probably resulted in the conviction of one who is actually innocent." The Supreme Court has emphasized that "`actual innocence' means factual innocence, not mere legal insufficiency."
Bousley, 523 U.S. at 623 (quotation and citation omitted).
Id. ("To establish actual innocence, petitioner must demonstrate that, `in light of all the evidence,' `it is more likely than not that no reasonable juror would have convicted him.'") (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)).
III. DISCUSSION
A. Grullon's Sentence Did Not Violate Due Process or His Constitutional Right to a Jury Trial
Grullon contends that by making certain findings pertinent to sentencing, the Court violated due process and his Sixth Amendment right to a jury trial. Although Grullon's petition does not expressly cite Blakely v. Washington, Petitioner's Reply to Respondent's Answer ("Reply") specifically does so in support of his argument that the drug quantity, firearm, and obstruction of justice enhancements should have been determined by a jury using the beyond a reasonable doubt standard, not by the Court under the preponderance of the evidence standard.
542 U.S. 296 (2004). In Blakely, the Supreme Court held that the application of a Washington sentencing procedure did not comport with the Sixth Amendment where judicial fact-finding increased the defendant's sentence beyond the statutory maximum. See id. at 305. The Supreme Court held that such fact-finding violated the principle set forth in Apprendi, which provided that any fact which increases a statutory maximum sentence must be found by the jury beyond a reasonable doubt. See id. at 301. The Blakely Court stated that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at 303 (emphasis in original). "In other words, the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum [she] may impose without any additional findings." Id. at 303-04 (emphasis in original).
See Reply at 3 (" Blakely has never altered the rule established in Apprendi, but rather clarified its application to the sentencing process and the statutory maximum determination, under the protections and guaranteed rights of the Fifth and Sixth Amendment . . . of the United States Constitution.").
Grullon's reliance on Blakely is unavailing for two reasons. First, the Second Circuit has held that Blakely is not retroactively applicable to cases on collateral review. Second, even if Blakely were applicable, it would have no impact on this case. Here, the jury found Grullon responsible for more than five kilograms of powder cocaine and more than fifty grams of crack cocaine. These quantities trigger the application of section 841(b)(1)(A) which provides for a statutory maximum sentence of life imprisonment. Grullon was sentenced under the Guidelines to thirty years which is below the statutory maximum of life imprisonment. Therefore, it was entirely appropriate for this Court to find facts, such as drug quantity, that are relevant to sentencing. Accordingly, there is no Apprendi/Blakely violation and Grullon's reliance on this line of cases is entirely misplaced. Nor is there any violation of due process. The first ground in Grullon's motion is therefore dismissed.
See Green v. United States, 397 F.3d 101, 103 (2d Cir. 2005) ("In Carmona v. United States, [ 390 F.3d 200, 202 (2d Cir. 2004)], this Court considered whether the Supreme Court's Blakely decision applied retroactively to second or successive petitions. This Court held that, because the Supreme Court had not clearly made Blakely retroactively applicable to cases on collateral review, Blakely did not retroactively apply to Carmona's application to file a second or successive petition. Carmona, 390 F.3d at 202-03."); Carmona, 390 F.3d at 202 ("To date, the Supreme Court has not, in any other case, announced Blakely to be a new rule of constitutional law, nor has the Court held it to apply retroactively on collateral review.") (footnote omitted). Similarly, the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005), is not retroactive. See Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005) ( "Booker is not retroactive, i.e., it does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker issued."). Thus, Grullon's request that his motion be held in abeyance pending the Booker/Fanfan decisions was for naught.
See 28 U.S.C. § 841(b)(1)(A) ("[S]uch person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life. . . .").
See United States v. Garcia, 413 F.3d 201, 220 n. 15 (2d Cir. 2005) (stating even after Booker, "`the sentencing judge will be entitled to find all of the facts that the Guidelines make relevant to the determination of a Guidelines sentence and all of the facts relevant to the determination of a non-Guidelines sentence'") (quoting United States v. Crosby, 397 F.3d 103, 111-12 (2d Cir. 2005)). See also United States v. Garcia, 240 F.3d 180, 183-84 (2d Cir. 2001) (holding that the prohibition on judicial fact-finding in Apprendi does not apply to Guidelines calculations within the statutory range).
See United States v. Vaughn, 430 F.3d 518, 525 (2d Cir. 2005) ("We reiterate that, after Booker, district courts' authority to determine sentencing factors by a preponderance of the evidence endures and does not violate the Due Process Clause of the Fifth Amendment.").
B. Ineffective Assistance of Counsel
Grullon's second claim asserts that his trial counsel erred by failing to raise a Blakely claim at sentencing, and that appellate counsel was similarly ineffective for failing to raise this issue on appeal. However, Blakely had not yet been decided as of the time of Grullon's sentencing or appeal. Under the governing precedent ( Apprendi), it was entirely appropriate for this Court to make the findings required under the Guidelines as the sentence imposed did not exceed the prescribed statutory maximum. Consequently, Grullon cannot establish that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms." Moreover, Grullon cannot credibly claim that "but for counsel's unprofessional errors [in failing to raise the Blakely claim at sentencing and on appeal], the result of the proceeding would have been different." Accordingly, his claim of ineffective assistance of counsel is denied.
Strickland, 466 U.S. at 687-88.
Id. at 694.
C. Grullon Has Procedurally Defaulted His Claim for a Downward Departure
Grullon contends that the sentencing Court abused its discretion in failing to depart downwardly on grounds that his mental capacity warranted a minor role adjustment. This claim is procedurally defaulted. Grullon cannot show "cause" to explain why he did not raise this claim on direct appeal of his conviction. Grullon does not allege that any external impediment prevented him from raising the issue through his attorney.
See, e.g., Leaks v. United States, 841 F. Supp. 536, 540 (S.D.N.Y. 1994) ("[Petitioner] cannot show `cause' because his claims are based on facts and legal principles that were available to him during the direct appeal of his conviction and sentence.").
Mere attorney error or inadvertence does not constitute "cause" to excuse a procedural default. "[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." In the absence of some evidence of external impediments interfering with Grullon's ability to raise his minor role claim on direct appeal, he has failed to show cause why his default should be excused.
Murray, 477 U.S. at 486.
In addition, assuming arguendo that Grullon could show cause, he has not shown any prejudice because he has failed to demonstrate that his minor role claim would succeed on the merits. Grullon argues that the Court's decision not to impose a leadership role enhancement, based, in part, on Grullon's possible cognitive impairment, was incongruous with the Court's refusal to apply a minor role adjustment. This argument is without merit. The determination of whether a cognitive impairment militates against imposing a leadership role enhancement is a separate issue from whether the same impairment mandates a minor role adjustment. One is not necessarily linked to the other. Consequently, because Grullon's minor role claim is devoid of merit, he cannot show any prejudice such that his default should be excused, even if there were cause for the default in the first place.
IV. CONCLUSION
For the foregoing reasons, Grullon's section 2255 petition is dismissed. There remains the question of whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." "A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Petitioner has made no such showing in this case. Accordingly, I decline to issue a certificate of appealability. The Clerk of the Court is directed to close this case.
Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation omitted)).
SO ORDERED: