01 Civ. 7525 (HB) 99 Cr. 794 (HB)
October 17, 2002
Thomas Hall a/k/a Rylan 0. Forbes ("Hall") brings this habeas corpus petition pursuant to 28 U.S.C. § 2255 to vacate and set aside or correct his sentence entered by this Court on May 24, 2000. Hall alleges that (1) his counsel was ineffective for (a) failing to argue on appeal that the Probation Department erred in adding a criminal history point for a previous conviction for which he received no jail sentence and (b) failing to argue that a previous drug misdemeanor conviction and a previous illegal reentry conviction should have been treated as "related" in calculating Hall's criminal history category; (2) the Court erred by applying a sixteen level enhancement for a prior conviction characterized as an "aggravated felony, " which, for sentencing purposes, occurred before the effective date of the applicable Sentencing Guideline Amendment and before the date of the Anti-Drug Abuse Act of 1988; and (3) the government is required to adhere to recommendation in the Pimentel letter provided by the government on December 27, 1999, which classified Hall's criminal history category and resulting sentencing range at significantly lower levels than that which Hall was eventually subjected. For the following reasons, the motion is DENIED and the petition is dismissed.
On August 13, 1999, Hall was indicted, pursuant to 8 U.S.C. § 1326 (a) and 1326(b)(2), on one count of being an alien and unlawfully, willfully, and knowingly entering the United States after having been deported from the United States following a conviction for the commission of an aggravated felony. Hall pled guilty on January 4, 2000 to the sole count in the indictment. There was no plea agreement. Before Hall's allocution, the government provided Hall with a letter setting forth its position with regards to applicable sentencing guidelines. The government's letter opined an adjusted offense level of 21, a Criminal History Category of III, with the resulting sentencing range of 46 to 57 months. Following Hall's guilty plea, the probation office determined that Hall's criminal history category should be increased from a Category III to a Category IV, thus increasing the sentencing range from 46 to 57 months to 57 to 71 months. The Probation Office recommended that Hall be sentenced at the high end of the applicable guidelines due to Hall's long criminal history. Hall was given a sixteen point enhancement to his offense level pursuant to U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 2L1.2, which is required if the defendant was convicted of an "aggravated felony" before the illegal reentry.
On May 24, 2000, I sentenced Hall to 71 months imprisonment, a three-year term of supervised release, and a mandatory $100 special assessment. On appeal, Hall's conviction was affirmed. On July 23, 2001, Hall filed the instant petition.
II. Petitioner's claims A. Hall did not receive ineffective counsel
While Hall's claim of ineffective assistance of counsel was not raised on direct appeal, it may survive nonetheless. See Bloomer v. United States 162 F.3d 187, 192 (2d Cir. 1998) (noting that claims of ineffective assistance in certain circumstances may be raised for the first time in § 2255 habeas petition). Hall's claim is without merit. Hall asserts that his counsel was ineffective because his counsel failed to argue on appeal that the probation department erred when it used a July 13, 1989 narcotics misdemeanor conviction in calculating Hall's sentencing guidelines. Hall claims this error resulted in a higher criminal history classification. Hall also claims that his counsel was ineffective for not arguing on appeal that Hall's narcotics misdemeanor and previous illegal reentry conviction were "related." By not prevailing on these issues, Hall contends that his sentence was longer than it should have been.
To succeed on a claim of ineffective assistance of counsel, a petitioner must (1) show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms, " and (2) "affirmatively prove prejudice." See Strickland v. Washington, 466 U.S. 668, 687-88, 693-94, 104 S.Ct. 2052, 2064, 2067 (1984). Both prongs of the Strickland test must be met for a reviewing court to find that "`counsel was not functioning as the counsel guaranteed by the Sixth Amendment." Strickland 466 U.S. at 687, 104 S.Ct. at 2064.
As to the first prong, when measuring counsel's performance under the strictures of the Sixth Amendment, a "court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, bearing in mind that "[t]here are countless ways to provide effective assistance of counsel in any given case' and that "[e]ven the best criminal defense attorneys would not defend a particular client in the same way."' United States v. Aguirre 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065) (alterations in the original). A reviewing court must apply "a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. More importantly, possible strategies that counsel does or does not follow do not form a sufficient basis for finding that counsel was ineffective. Mason v. Scully, 16 F.3d 38, 42 (2d Cir. 1994) (noting that actions or omissions by counsel that might be considered sound trial strategy do not constitute ineffective assistance) (internal quotation marks omitted) and United States v. Sanchez, 790 F.2d 245, 253 (2d Cir. 1986) (a defendant's belief that his counsel's strategy is inadequate is not enough for the defendant to prevail on a claim of ineffective counsel). As to the second prong or "prejudice" requirement of the test, Hall must show a reasonable probability that, "but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (applying theStrickland test to challenges to guilty pleas based ineffective assistance of counsel).
In connection with the first prong of the Strickland test, Hall makes no showing that his counsel did not act in accordance with an objective standard of reasonableness. Hall asserts that he received ineffective of assistance of counsel because his counsel failed to make certain arguments that purportedly would have reduced Hall's sentencing range. I find, however, that the arguments Hall contends his counsel should have made to be meritless. Hall's contention that narcotics misdemeanors without jail time do not result in criminal history points pursuant to the sentencing guidelines is unfounded. U.S.S.G. § 4A1.2 (c)(1) and (2) contains a list of misdemeanor sentences that will not result in additional points being added to the criminal history calculations. Narcotics misdemeanors are not listed. Indeed, no misdemeanors involving narcotics violations are listed.
Hall also claims that he received ineffective assistance of counsel on his appeal because his counsel did not argue that the probation department should have considered as "related" his 1989 state conviction for possession of marijuana and his 1989 federal conviction for illegal reentry in connection with the calculation of his criminal history category. Prior sentences are considered related if they resulted from offenses that: (1) occurred on the same occasion; (2) were part of a single common scheme or plan; or (3) were consolidated for trial or sentencing. Id. § 4A1.2 (a)(2), comment (n. 3). The illegal actions that resulted in the two previous convictions occurred years apart and had nothing to do with one another. Hall had illegally reentered the United States on March 2, 1981, and his arrest and conviction for possession of marijuana was on July 13, 1989. The Probation Department correctly found that the offenses were unrelated because they lacked the requisite close factual relationship that is characteristic of a common plan or scheme. See. e.g., United States v. Bauers, 47 F.3d 535, 538 (2d Cir. 1995); United States v. Rappaport, 999 F.2d 57, 60 (2d Cir. 1993) (holding that the robberies at issue were not part of a common plan or scheme as defined under U.S.S.G. § 4A1.2 when the robberies were committed three days apart, the victims and sites of the crimes differed and the modus operandi "differed somewhat"). Accordingly, although "[p]rior sentences imposed in related cases are to be treated as one sentence, " U.S.S.G. § 4A1.2 (a)(2), Hall has failed to demonstrate that the above mentioned convictions should be so construed.
In connection with the second prong of the Strickland test, Hall provides no evidence that he was prejudiced by his counsel's representations. Certainly, ineffective assistance of counsel cannot result from Hall's misguided interpretation of the sentencing guidelines or precedent. I find that Hall has failed to even come close to satisfying either prong of Strickland.
B. Hall's failure to appeal
Hall's claims concerning the allegedly improper sixteen-point enhancement of his offense level and the government's failure to adhere to the recommendation of the Pimentel letter are both barred by his failure to raise them on direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1982) (stating that a § 2255 motion may not be used as a substitute for a direct appeal); Abbamonte v. United States, 160 F.3d 922, 924 (2d Cir. 1998) (noting that an issue generally cannot be presented in a § 2255 motion if it could have been raised on direct appeal, whether it was actually raised on appeal or not). Although there are claims that may be raised in habeas that were not previously raised on direct review, the availability of such claims is extremely limited and none are applicable here.
C. The sixteen-point enhancement was correct
Even if Hall's claims were not procedurally barred, his claims fail on their merits. Hall claims that the sixteen-point enhancement was unlawful because the "aggravated felony" classification did not exist at the time the felony was committed. The Court based the U.S.S.G. § 2L1.2 sixteen level enhancement on a March 7, 1990 narcotics related felony conviction on, which it classified as an "aggravated felony." The Anti Drug Abuse Act of 1988 added 8 U.S.C. § 1326 (b) to the immigration laws, which increased the criminal penalties for illegal reentry into the United States by any alien who had been deported following an earlier conviction for an aggravated felony. Pub.L. No. 100-690, Title VII, Subtitle J, § 7345(a). The 1988 Act defined aggravated felony, under 8 U.S.C. § 1101(a)(43), to encompass, amongst other felonies, drug trafficking. A similar definition of aggravated felony was incorporated into the sentencing guidelines, which provide for a 16 level sentence enhancement when a defendant is found guilty of illegal reentry into the United States after a conviction for an aggravated felony. Both the definition of aggravated felony, under 8 U.S.C. § 1101(a)(43), and the guidelines under U.S.S.G. § 2L1.2, have been amended several times since 1988 to reach a variety of additional crimes and assign appropriate sentences. Hall contends that his criminal sale of controlled substance on April 15, 1988 cannot be deemed an aggravated felony because it occurred a few months before the Anti Drug Abuse Act first defined the term aggravated felony for purposes of prosecution under the immigration laws. The 1988 Act provides that 8 U.S.C. § 1326(b) applies to "any alien who enters, attempts to enter or is found in, the United States on or after the date of enactment of [the November 18, 1988] Act." Pub.L. No. 100-690, Title VII, Subtitle J, § 7345(a). "Every federal circuit court to have considered this issue has concluded that the 1988 definition of aggravated felony applies to the specified crimes, no matter when committed ". U.S. v. Kingston. 966 F. Supp. 183, 185 (S.D.N.Y. 1997) (emphasis added); see, e.g., United States v. Arzate-Nunez, 18 F.3d 730, 734-35 (9th Cir. 1994); United States v. Cabrera-Sosa, 81 F.3d 998, 1000-01 (10th Cir.), cert. denied, 519 U.S. 885, 117 S.Ct. 218, 136 L.Ed.2d 151 (1996).
The offense actionable pursuant to 8 U.S.C. § 1326 is not petitioner's previous narcotics crime in 1988 and subsequent conviction in 1990, but rather his illegal reentry into the United States. See United States v. Cole, 32 F.3d 16, 18 (2d Cir. 1994) ("Section 1326(b) does not create a separate criminal offense, but is a sentence-enhancement provision for the offense defined in section 1326(a)."), cert. denied, 513 U.S. 993, 115 S.Ct. 497, 130 L.Ed.2d 407 (1994); see also United States v. Moura, 2000 WL 1708159, * 1 (S.D.N.Y. 2000). Defendant reentered, at the earliest, some time after his initial deportation in 1992, well after the Anti Drug Abuse and Immigration Act first announced enhanced penalties in connection with illegal reentry following a deportation after the commission of an aggravated felony. Accordingly, Hall's 1990 drug conviction qualify and his contention is meritless.
D. The Pimentel letter is clearly not binding on the Government
Hall claims that the government is required "as a matter of law" to adhere to the language in the Pimentel letter. In addition to being procedurally barred for failure to raise this claim on direct appeal, Hall's claim is frivolous. The Pimentel letter contains specific and clear language that it does not bind either the Court or the probation department. The Pimentel letter also clearly states that the government can change its position regarding the appropriate sentence at any time. (Gov. Mem., Ex. B at 3.) Indeed, Hall admitted under oath that he understood that the Court was not bound by the representations made in the Pimentel letter. See January 4, 200 Plea Tr. at 16.
For all the foregoing reasons, the petitioner's motion to vacate and set aside or correct his sentence is DENIED and the petition is dismissed. The Clerk of the Court is instructed to' close this matter and remove it from my docket along with any open motions.