Summary
applying Mayo to trial counsel's failure to raise certain arguments against career offender sentence enhancement
Summary of this case from Romero v. United StatesOpinion
04 Civ. 10208 (RCC).
July 19, 2005
MEMORANDUM ORDER
Frank Mercado ("Petitioner") filed this motion pro se pursuant to 28 U.S.C. § 2255, alleging improper sentence enhancement and ineffective assistance of counsel. Petitioner moves to vacate, set aside, or correct his sentence of 151 months' imprisonment. For the following reasons, Petitioner's motion is DENIED.
I. BACKGROUND
Petitioner was charged with a two-count indictment for possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C). (Presentence Report ("PSR") ¶¶ 2-4.) Before Petitioner pleaded guilty to these charges, the Government provided his counsel with a letter, pursuant to United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991), that stated that Petitioner was subject to an offense level of 29, which was increased to 32 because Petitioner qualified as a "career offender" pursuant to United States Sentencing Guidelines section 4B1.1; that, assuming Petitioner were to plead guilty and allocute to the satisfaction of the Court, he would be entitled to a three-level reduction in the applicable offense level to 29 pursuant to United States Sentencing Guidelines sections 3E1.1(a) and (b)(2); and that Petitioner's eleven criminal-history points resulted in a criminal-history category of V, which was increased to VI because of Petitioner's career-offender status. (Pimentel Letter from Gov't to Def.'s Counsel of 08/11/02, at 1-4.)
To a qualify as a "career offender" under United States Sentencing Guidelines section 4B1.1, a criminal must have "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S. Sentencing Guidelines Manual § 4B1.1 (2002). Petitioner had been convicted in New York Supreme Court, Bronx County, on October 2, 1998 of three separate narcotics-related felony charges, and was sentenced to concurrent terms of two to six years' imprisonment followed by a period of supervised release, during which Petitioner committed the instant offenses. (See PSR ¶¶ 40-48.)
On September 9, 2002, Petitioner pleaded guilty, without a plea agreement, to both charges against him. United States v. Mercado, No. 02 Cr. 872 (S.D.N.Y. Sept. 9, 2002) (order accepting guilty plea). Prior to accepting Petitioner's guilty plea, the Court asked the Government to advise Petitioner of the charges against him, including the maximum possible penalties he faced on his guilty plea. (See Guilty-Plea Tr. of 09/09/02, at 2-3.) The Court then advised Petitioner of the additional penalties he could face if he violated the conditions of any supervised release, confirmed that Petitioner had seen a copy of the indictment and discussed it with his attorney, and asked Petitioner questions to determine that he was competent to enter a guilty plea. (See id. at 2-4.) The Court confirmed that Petitioner had adequate time to discuss how he wished to plead with his attorney and that he was satisfied with his attorney's representation. (See id. at 4-5.) The Court advised Petitioner of the factors that the Court would consider in imposing Petitioner's sentence, advised Petitioner that the applicable sentencing range could not be determined precisely until after the preparation of a PSR, and confirmed that no one had made any promises to Petitioner to influence him to plead guilty. (See id. at 7-8.) Petitioner described in his own words what he did, and the Court accepted his allocution. (See id. at 10-11.)
On January 29, 2003, the Court sentenced Petitioner to concurrent terms of 120 months' imprisonment on the firearm conviction and 151 months' imprisonment on the drug conviction, followed by concurrent three-year terms of supervised release. (See Sent. Hr'g Tr. of 01/29/03, at 17.) Petitioner's sentence was based on a calculated offense level of 29 and criminal-history category of VI, which resulted in a guidelines range of 151-188 months' imprisonment on the second of the two counts against Petitioner. (See id.) The Court rejected Petitioner's objections to the PSR on the grounds that the Probation Office had failed to recommend a downward departure and that he was improperly classified as a career offender. (See id. at 9.) On appeal, Petitioner argued that his guilty plea was not knowing or voluntary and that the Court should have granted his motion for a downward departure, but the conviction and sentence were affirmed on all grounds.See United States v. Mercado, 349 F.3d 708 (2d Cir. 2003),cert. denied, 540 U.S. 1169 (2004). On December 2, 2004, Petitioner timely filed this § 2255 motion to vacate, set aside, or correct his sentence of 151 months' imprisonment, alleging improper sentence enhancement and ineffective assistance of counsel.
II. DISCUSSION
Petitioner argues that his sentence violates his Fifth and Sixth Amendment rights on the ground that his career-offender status (which resulted in an enhancement of his sentence) should have been proven beyond a reasonable doubt under Blakely v. Washington, 124 S. Ct. 2531 (2004) and United States v. Booker, 125 S. Ct. 738 (2005). Further, Petitioner argues that his counsel was ineffective for failing to raise Blakely and Booker in arguing against the career-offender sentence enhancement.
A. Petitioner's Reliance on Blakely and Booker is Misguided
Petitioner's reliance on Blakely is misguided. Petitioner was sentenced under the Federal Sentencing Guidelines, but Blakely specifically left open whether its holding (that judges may not impose harsher sentences on convicted criminals by using a preponderance of the evidence standard for facts not introduced to a jury or admitted by the defendant) also applied to the Federal Sentencing Guidelines.See Blakely, 124 S. Ct. at 2536-43; see also Potts v. United States, No. 04-4528, 2005 WL 1216968, at *1 (D.N.J. May 19, 2005) (holding that the petitioner could not rely onBlakely to vacate his sentence, which was increased by his career-offender status, because Blakely expressly reserved decision on whether its holding applied to the Federal Sentencing Guidelines, and that the petitioner had to demonstrate retroactive application of Booker, not Blakely). The Court cannot therefore vacate Petitioner's sentence based on Blakely.
In Booker, the Supreme Court held that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." 125 S. Ct. at 756. Despite the Supreme Court's expansion of theBlakely holding in Booker, however, Petitioner's reliance onBooker is also misguided. Booker "does not apply retroactively to cases on collateral review . . . where the defendant's conviction was final as of January 12, 2005, the date that Booker issued." Guzman v. United States, 404 F.3d 139, 140-43 (2d Cir. 2005) (holding that Booker established neither a substantive nor a "watershed" rule). Petitioner's conviction became final on January 26, 2004, when the Supreme Court denied his petition for writ of certiorari. The Court cannot therefore vacate Petitioner's sentence based on Booker. B. Petitioner Does Not Satisfy the Strickland Test
Even if Booker were retroactive on collateral review, it would not provide Petitioner with a basis relief because his sentence enhancement was based on prior convictions, whichBooker expressly excepts from its holding. See 125 S. Ct. at 738.
Petitioner's claim that he received ineffective assistance of counsel because his attorney failed to challenge his career-offender sentence enhancement on the basis of Blakely and Booker fails. To succeed on his ineffective-assistance-of-counsel claim, Petitioner must satisfy both prongs of the two-prong test from Strickland v. Washington, 466 U.S. 688 (1984). See Hill v. Lockhart, 474 U.S. 52, 58 (1985) (holding that "the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel"). To satisfy the first prong of the Strickland test, Petitioner must establish that his counsel's conduct fell below "an objective standard of reasonableness." See Strickland, 466 U.S. at 688. Under the first prong, the Court "must `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' and be watchful `to eliminate the distorting effects of hindsight.'" Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) (quoting Strickland, 466 U.S. at 689). To satisfy the second prong of the Strickland test, Petitioner must establish that his attorney's "deficient performance prejudiced the defense." See Strickland, 466 U.S. at 687. Under the second prong, a petitioner must establish that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Because the Supreme Court decided Booker after Petitioner's conviction was final, Petitioner's counsel could not have erred by failing to cite cases that were either irrelevant (i.e.,Blakely) or not yet decided (i.e., Booker). See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (stating that "it 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"). Because Booker had not yet even been decided by the time Petitioner's conviction became final, counsel's failure to raise Booker arguments cannot represent conduct falling below an objective standard of reasonableness, even if the case had later been retroactive on collateral review. See id. ("Counsel is not required to forecast changes in the governing law."). And because Petitioner has therefore not satisfied the first Strickland prong, the Court need not evaluate whether Petitioner has satisfied the second Strickland prong. See Strouse v. Leonardo, 928 F.2d 548, 556 (2d Cir. 1991) (concluding that the failure to meet the first prong of the Strickland test precludes the necessity to analyze the second prong because a petitioner must satisfy both elements of the test to challenge a guilty pleas based on ineffective assistance of counsel).
III. CONCLUSION
For the foregoing reasons, Petitioner's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 is DENIED. The Clerk of the Court is directed to close this case and remove it from the Court's active docket.