Opinion
03 Civ. 5798 (SAS).
August 4, 2004
Michael Mishoe, Fort Dix, New Jersey, Petitioner (Pro Se).
Andrew L. Fish, Assistant United States Attorney, New York, New York, For the Government.
OPINION AND ORDER
Michael Mishoe, proceeding pro se, has moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Mishoe seeks to withdraw his guilty plea on the following grounds: (1) ineffective assistance of counsel; (2) the Government's failure to file a prior felony information pursuant to 21 U.S.C. § 851; (3) the significance of supervised release was not explained to him; and (4) the total term of imprisonment, including supervised release, exceeded the maximum sentencing range contained in the Plea Agreement. For the following reasons, petitioner's motion is denied.
I. FACTS
A. Mishoe's Criminal Conduct
Mishoe's conviction arises out of an undercover investigation of a street-level narcotics distribution organization known as the "Money Tree/100 Street Crew" ("Money Tree"). The investigation revealed that Money Tree, which consisted of at least seven individuals including Mishoe, was responsible for retail-level trafficking in crack cocaine near the George Washington Houses, a public housing development located in the vicinity of East 102nd Street in Manhattan. See PSR ¶¶ 13-38. Between February 1999 and September 1999, informants and undercover law enforcement agents made approximately fourteen purchases of crack cocaine from members of Money Tree, and witnessed numerous additional drug transactions. See id.
"PSR" refers to the Presentence Report prepared by the Probation Office in connection with Mishoe's sentencing.
Mishoe was a street-level seller for Money Tree. On September 8, 1999, during the investigation, an undercover officer and an informant separately purchased a total of five $10 bags of crack cocaine from Mishoe. During each transaction, Mishoe collected the money and then placed the drugs on a fence for pickup by the purchaser. Agents also observed Mishoe conduct three additional sales of crack cocaine to unidentified purchasers, leaving the drugs on a fence in two of the three instances. See PSR ¶¶ 30, 35, 36. Additionally, surveillance agents observed Mishoe delivering proceeds from drug sales to Martin Rivera, one of the leaders of Money Tree. After Mishoe delivered the money to Rivera, Rivera gave him an object believed to be additional supplies of crack cocaine, which he placed in his pants. See PSR ¶ 34.
On September 17, 1999, Mishoe was arrested in connection with the Money Tree investigation. This was Mishoe's ninth arrest for a narcotics offense over a period of approximately twelve years. See PSR ¶¶ 55-71, 78-84. Apart from the instant case, he has four prior felony convictions, all for selling crack cocaine (although several were pled down to felony possession or felony attempted sale charges). See PSR ¶¶ 55, 58, 64, 67.
B. Mishoe's Plea Agreement and Guilty Plea
On November 16, 1999, pursuant to a written Plea Agreement, Mishoe pled Guilty to Count One of a Superseding Information that charged him with distributing five $10 plastic bags of crack cocaine on September 8, 1999. Because of the small quantity of drugs involved, this charge carried a maximum penalty of twenty years imprisonment, see 21 U.S.C. § 841(b)(1)(C), as opposed to the maximum life sentence that would have been applicable had Mishoe been prosecuted under the original Indictment (which charged him with participating in a conspiracy to distribute more than fifty grams of crack in violation of 21 U.S.C. § 841(b)(1)(A)).
The opportunity to plead to a Superseding Information was especially significant because Mishoe was a career offender under the United States Sentencing Guidelines ("U.S.S.G."). Under the career offender Guideline, a defendant's Criminal History Category is automatically deemed to be category VI. See U.S.S.G. § 4B1.1(b). The chart used to calculate the offense level is based on statutory maximum terms of imprisonment for the offense of conviction. See id. For offenses carrying a maximum sentence of life imprisonment, such as the charge contained in the original Indictment, the offense level is 37. See id. For offenses carrying a maximum of twenty years imprisonment, such as the charge contained in the Superseding Information, the offense level is 32.
In the Plea Agreement, the parties stipulated to 32 as the base offense level pursuant to U.S.S.G. §§ 2D1.1(c)(4) and 4B1.1(b)(C). See Plea Agreement, Ex. A to the Government's Memorandum of Law in Opposition to Petition to Vacate, Set Aside, or Correct a Sentence ("Opp. Mem."), at 2. The parties also stipulated that petitioner was in Criminal History Category VI because he was a career offender under U.S.S.G. § 4B1.1, and because he had 17 criminal history points. See id. at 4. With a three-level reduction for acceptance of responsibility, the adjusted offense level was 29 which resulted in a stipulated Guidelines range of 151 to 188 months imprisonment. See id. The parties agreed that neither an upward nor a downward departure from this range was warranted, and that neither party would seek a departure from the stipulated Guidelines range. See id. In addition, the parties further agreed
Because of a typographical error, the Plea Agreement cites U.S.S.G. § 2D1.1(c)(3), which specifies a base offense level of 34, rather than § 2D1.1(c)(4), which specifies a base offense level of 32 for distribution of at least 50 but less than 150 grams of crack cocaine.
The correct total of criminal history points is 14, see infra nn. 6 7, which places petitioner in Criminal History Category VI apart from his status as a career offender.
(i) that the defendant will neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated Sentencing range set forth above and (ii) that the Government will not appeal any sentence within or above the stipulated Sentencing range.Id. at 5.
On November 16, 1999, Mishoe pled guilty before Magistrate Judge Andrew J. Peck. At his plea allocution, Mishoe confirmed that he understood the charges against him and his rights, that his plea was voluntary, and that it was not the result of any threats or promises apart from the Plea Agreement. See 11/16/99 Plea Transcript ("Plea Tr.") at 4-8, 10-11. Mishoe stated that he understood that he could received a sentence of up to lifetime supervised release and that if he violated a condition of supervised release, he could receive an additional term of imprisonment. See id. at 6, 10. Mishoe also acknowledged that he had agreed not to appeal or litigate under section 2255 any sentence within or below the stipulated sentencing range set forth in the Plea Agreement. See id. at 11. At the conclusion of the proceedings, Judge Peck found that Mishoe understood the nature of the charge and the consequences of pleading guilty; that his plea was made freely, voluntarily, and knowingly; and that his plea was supported by a factual basis. See id. at 14.
C. The Original Sentencing Proceedings
The Probation Office prepared a PSR in connection with Mishoe's sentencing. The PSR concluded that Mishoe's offense level under the Guidelines was level 32 because of both the drug quantity and Mishoe's status as a career offender. See PSR ¶¶ 43, 51. The PSR also found that Mishoe was in Criminal History Category VI because he was a career offender and, alternatively, because he had 15 criminal history points. See id. ¶ 77. Accordingly, the Probation Office agreed with the 151-188 months Guidelines range set forth in the Plea Agreement. See id. ¶ 135.
The PSR assigned Mishoe 15 criminal history points, rather than 17, because the PSR did not assign any points to Mishoe's January 1988 conviction for attempted criminal sale of a controlled substance in the third degree. The PSR correctly stated that this conviction should not be counted pursuant to U.S.S.G. § 4A1.2(e)(2), as Mishoe's sentence for the conviction was only six months and the sentence had been imposed more than ten years before the instant offense.
The PSR, however, misstated the Sentencing Guidelines range for the term of supervised release. The PSR stated that the supervised release range under the Guidelines was at least three years but not more than five years. See id. ¶ 138. However, 21 U.S.C. § 841(b)(1)(C), to which Mishoe had pled guilty, carries a maximum sentence of twenty years imprisonment and therefore constitutes a Class C felony. See 18 U.S.C. § 3559(a)(3). The Guidelines provide that the range of supervised release for a Class C felony is two to three years, but not less than any statutorily required term of supervised release. See U.S.S.G. § 5D1.2(a)(2), (b). Accordingly, the Guidelines range for supervised release is three years — the statutorily required minimum term of supervised release under 21 U.S.C. § 841(b)(1)(C).
On March 8, 2000, Mishoe appeared before this Court for sentencing. At sentencing, Mishoe expressed concern about being sentenced based on the distribution of more than fifty grams of crack cocaine. See 3/8/00 Sentencing Transcript at 5-6. After considering the possibility of a Fatico hearing to determine drug quantity, and whether or not to withdraw his guilty plea, Mishoe's attorney stated the following on the record:
MS. SCOLARI: Your Honor, having had time to talk to Mr. Mishoe, after his having more time to think about this, he advised me of the following. He can contradict me if I don't say it properly. He is no longer requesting that he withdraw his plea, no longer requesting a Fatico hearing. He is prepared to recognize that if a Fatico hearing were held and the government were to call cooperating witnesses, the court would find based on the testimony by a preponderance of the evidence that the government had established during the period of time that Mr. Mishoe was associated with the people who testified, or with the conspiracy, that he was responsible under the law for the amount of drugs that would relate to a level 32 under a relevant conduct theory and, therefore, he is ready to proceed as the court had suggested.Id. at 14.
During the sentencing proceedings, the Court found, consistent with the Plea Agreement and the PSR, that Mishoe's adjusted offense level was 29 and that, without a downward departure, Mishoe was in Criminal History Category VI. See id. at 31, 36. The Court then, sua sponte, horizontally departed downward from the Guidelines range one level, to Criminal History Category V, on the ground that Criminal History Category VI overstated the seriousness of Mishoe's criminal history. See id. at 36. The Court gave this departure because Mishoe was a "street seller of narcotics, the lowest level in the distribution chain," and his prior convictions were "the lowest levels of prior felony convictions that can be earned." Id. at 33. At Category V, the new Guidelines range was 140-175 months imprisonment. The Court sentenced Mishoe to 140 months imprisonment and, without objection, imposed a term of five years supervised release. See id. at 40.
The Court adopted the findings of the PSR, including its conclusion that Mishoe had 15 criminal history points, one of which came from a July 1998 conviction for "fare-beating." However, the Court of Appeals subsequently held that "fare beating" convictions should not count in the computation of a defendant's criminal history score, and do not result in any criminal history points. See United States v. Sanders, 205 F.3d 549, 553-54 (2d Cir. 2000). Hence, Mishoe should have received only 14 criminal history points. The effect of this error is harmless, however, as 14 criminal history points still places Mishoe in Criminal History Category VI.
D. The Government's Appeal
The Government appealed Mishoe's sentence, arguing that this Court erred in departing from the Sentencing Guidelines on the ground that Mishoe was a "street-level" drug dealer. Mishoe did not cross-appeal.
On appeal, the Second Circuit held that the district court had erred in departing downward from the Sentencing Guidelines range on the ground that Mishoe's prior convictions involved "street-level" narcotics sales. See United States v. Mishoe, 241 F.3d 214, 218 (2d Cir. 2001). The Court also ruled, however, that the district court "would be entitled on remand to consider whether to make a departure based on an individualized consideration of factors relevant to an assessment of whether [Criminal History Category] VI `significantly over-represents the seriousness of [the] defendant's criminal history or the likelihood that the defendant will commit further crimes.'" Id. at 219 (quoting U.S.S.G. § 4B1.3). Accordingly, the Court of Appeals vacated the sentence and remanded for further consideration. Id. at 221.
E. The Resentencing
At Mishoe's request, new defense counsel was appointed for the resentencing which took place on September 5, 2001. At sentencing, defense counsel stated that there were no factual disputes that required a Fatico hearing. See 9/5/01 Sentencing Transcript at 3. Defense counsel reported that Mishoe "insists that he has never pleaded guilty to 50 grams" and that these contentions "were first raised and then withdrawn before your Honor at the initial imposition of sentence in 2000." Id. at 5. Mishoe finally conceded that his base offense level was 32 because of his status as a career offender, irrespective of the amount of crack cocaine for which he was responsible. See id. at 7 ("If you want to charge me with offense level 32 because I am a career offender, OK, I see that.").
During the second sentencing proceeding, this Court applied the factors set forth in the Court of Appeals decision and again decided that a downward departure to Criminal History Category V was warranted. See id. at 11-12. Accordingly, this Court found the applicable Guidelines range to be 140-175 months imprisonment and sentenced Mishoe to 140 months imprisonment. See id. at 15-16. This Court also, without objection, imposed a term of five years supervised release. See id. at 16.
E. Mishoe's Appeal and the Correction of the Supervised Release Term
Mishoe then appealed and raised one issue — that Mishoe should have been sentenced to only three years supervised release. The Government agreed and consented to a remand for this purpose. In addition, Mishoe filed a pro se brief on appeal raising many of the issues presented in the instant motion.
The Court of Appeals issued a Summary Order remanding the case to allow the district court to correct the term of supervised release. See Summary Order, Ex. F to the Opp. Mem., at 3. In that Order, the Court of Appeals rejected Mishoe's pro se arguments "that the District Court erred in finding that he distributed 50 grams of cocaine base and that he was a career offender." Id. The Court of Appeals held that these claims were "foreclosed by, inter alia, the defendant's plea agreement." Id. at 4. Following remand, this Court corrected the supervised release term and imposed a term of three years supervised release.
II. LEGAL STANDARDS
A. Section 2255 Standard
Section 2255 allows a convicted person being 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 sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255. 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.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
B. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a fair trial and competent counsel in all criminal prosecutions. See U.S. Const. amend. VI. The Sixth Amendment "`stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not still be done.'" Gideon v. Wainwright, 372 U.S. 335, 343 (1963) (quoting Johnson v. Zerbst, 304 U.S. 458, 462 (1938)). To prove that counsel was constitutionally ineffective, a petitioner must satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner must first show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms." Id. at 688. The second prong requires a petitioner to "affirmatively prove prejudice," i.e., to demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
The Supreme Court has held "that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58 (1985). To establish an ineffective assistance claim within the context of a guilty plea, a petitioner must show that his counsel's constitutionally ineffective performance affected the outcome of the plea process such that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59. See also United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) ("A defendant who pleads guilty unconditionally while represented by counsel may not assert independent claims relating to events occurring prior to the entry of the guilty plea. `He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within [acceptable] standards.'" (quoting Tollett v. Henderson, 411 U.S. 258, 267(1973) (alteration in original)). "Failure to make a meritless argument does not amount to ineffective assistance." United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999).
III. DISCUSSION
A. Petitioner's Ineffective Assistance of Counsel Claim
Mishoe principally argues that his former attorneys provided ineffective assistance of counsel by failing to argue that Mishoe was not a career offender and by failing to challenge the drug quantity stipulated to in the Plea Agreement. As a result of this ineffectiveness, Mishoe claims that his guilty plea was involuntary. The question, then, is whether this claim is barred by the terms of Mishoe's Plea Agreement.
1. Waiver of Collateral Attack Rights
If not for the ineffective assistance of counsel claim, the instant petition would be foreclosed by the waiver contained in the Plea Agreement whereby petitioner explicitly agreed that he "will neither appeal, nor otherwise litigate under Title 28, United State Code, Section 2255, any sentence within or below the stipulated Sentencing Guidelines range set forth above." Plea Agreement at 4.
There was nothing difficult or confusing about the waiver language contained in the Plea Agreement to suggest that Mishoe might not have understood its consequences. On the contrary, the waiver provision was explicit and straightforward.
The Second Circuit has "long enforced waivers of direct appeal rights in plea agreements." Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001). However, "a plea agreement containing a waiver of the right to appeal is not enforceable where the defendant claims that the plea agreement was entered into without effective assistance of counsel." United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001). Similarly, although "[t]here is no general bar to a waiver of collateral attack rights in a plea agreement," such waivers are unenforceable where the asserted ground for challenging the sentence is ineffective assistance of counsel in connection with plea negotiations or the agreement itself. Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002) ("[A] waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, here, the plea agreement."), cert. denied, 537 U.S. 1146 (2003). See also Jones, 167 F.3d at 1145 (holding that waiver of right to file a section 2255 motion was unenforceable where defendant claimed ineffective assistance of counsel with respect to the agreement which affected the waiver). Accordingly, despite the waiver provision, petitioner's ineffective assistance of counsel claim will be considered on the merits.
"The rationale is that `the very product of the alleged ineffectiveness' cannot fairly be used to bar a claim of ineffective assistance of counsel." Id. at 114 (quoting Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999)).
2. Mishoe Was Properly Found to Be a Career Offender
Mishoe claims that his former attorneys were ineffective for not challenging his classification as a career offender as stipulated to in his Plea Agreement. In doing so, his attorney allegedly erred because, according to Mishoe, his two New York convictions for attempted criminal possession of a controlled substance in the fifth degree, see PSR ¶¶ 58, 67, are not "controlled substance offenses" within the meaning of U.S.S.G. § 4B1.2(b). Under U.S.S.G. § 4B1.2(b), a controlled substance offense includes any offense punishable by a term of imprisonment exceeding one year that prohibits "the possession of a controlled substance . . . with intent to . . . distribute or dispense," as well as any attempt to commit such an offense. U.S.S.G. § 4B1.2(b) Application Note 1.
Under this definition, the crime of attempted criminal possession of a controlled substance in the fifth degree is a "controlled substance offense." The relevant portion of New York Penal Code sets forth this offense as follows:
A person is guilty of criminal possession of a controlled substance in the fifth degree when he knowingly and unlawfully possesses
1. a controlled substance with intent to sell it. . . .
N.Y. Penal Law § 220.06 (emphasis added). In fact, both of Mishoe's convictions for attempted criminal possession of a controlled substance in the fifth degree resulted from sales of crack cocaine, not from mere possession or personal use. See PSR ¶¶ 59, 68. Thus, these two convictions, as well as Mishoe's 1996 conviction for criminal sale of a controlled substance in the fifth degree, are controlled substance offenses under U.S.S.G. § 4B1.2(b). It would have been frivolous, and perhaps a violation of the Plea Agreement, to have argued that Mishoe should not be accorded career offender status. Counsel's decision to refrain from doing so, therefore, does not amount to ineffective assistance.
Mishoe correctly notes that his 1988 conviction for attempted criminal sale of a controlled substance cannot be counted for career offender purposes, as Mishoe's sentence was only six months and the sentence had been imposed more than ten years before the instant offense. See United States v. Moore, 968 F.2d 216, 226 (2d Cir. 1992). Nevertheless, Mishoe still has three prior felony convictions for controlled substance offenses and therefore remains a career offender.
3. Mishoe's Offense Level Was Calculated Correctly
Mishoe also claims his counsel was ineffective for failing to challenge the drug quantity for which he was held accountable. According to Mishoe, he should have been held accountable only for the quantity of crack cocaine expressly charged in the Superseding Information, which totaled less than one gram. This is incorrect for two reasons. First, in setting the base offense level in a narcotics case, a sentencing court must consider all conduct that was "part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2). Application Note 3 to section 1B1.3 expressly states that all of a defendant's narcotics trafficking that is part of the same course of conduct or common scheme or plan must be considered "even if the defendant is convicted of a single count charging only one of the sales." See also United States v. Darmand, 3 F.3d 1578, 1581 (2d Cir. 1993) (applying Application Note 3).
In the present case, as part of the criminal activity Mishoe jointly undertook with other members of Money Tree, it was clearly foreseeable that at least fifty grams of crack cocaine would be sold. See PSR ¶ 38. Furthermore, through counsel, Mishoe conceded at his original sentencing, "if a Fatico hearing were held and the government were to call cooperating witnesses, the court would find . . . that Mr. Mishoe . . . was responsible under the law for the amount of drugs that would relate to a level 32 under a relevant conduct theory." 3/8/00 Tr. 14. Given this concession, is was a strategic decision on the part of defense counsel to forego a Fatico hearing where, in all likelihood, an even greater drug quantity would have been proven. The reasonableness of this decision is further supported by the fact that the Government would have considered petitioner in breach of the Plea Agreement if he insisted on a Fatico hearing. The result of such a breach could have been reinstatement of the original Indictment and the filing of two prior felony informations that could have subjected Mishoe to life imprisonment. See id. at 10.
Second, as conceded by Mishoe at resentencing, the base offense level would have been 32 regardless of drug quantity because of Mishoe's status as a career offender:
THE DEFENDANT: From what I read, yeah. This is the 841(b)(1)(C) case and I am a career offender; my offense level automatically says 32. That part I understood.
* * *
If you want to charge me with offense level 32 because I am a career offender, OK, I see that.
9/5/00 Tr. 6-7. For these reasons, any challenge to the drug quantity would have been futile. Defense counsel were therefore not ineffective for failing to do so.
In sum, Mishoe's status as a career offender was indisputable and the decision not to challenge the drug quantity was perfectly reasonable under the circumstances. Accordingly, Mishoe's ineffective assistance of counsel claim must be dismissed. Because petitioner's ineffective assistance claim is without merit, his claim that his plea was involuntary is rejected. Accordingly, the terms of the Plea Agreement, including the waiver of appeal provision, remain in full force and effect.
B. Petitioner's Remaining Claims
Mishoe also argues that: (1) he could not be treated as a career offender because the Government did not file a prior felony information pursuant to 21 U.S.C. § 851; (2) the significance of supervised release was not explained to him; and (3) the total term of imprisonment, including supervised release, exceeded the maximum sentencing range contained in the Plea Agreement. These claims are without merit and procedurally barred and/or foreclosed by the terms of his Plea Agreement.
Mishoe's argument in this regard was rejected by the Second Circuit in United States v. Whitaker, 938 F.2d 1551, 1552 (2d Cir. 1991), which held that a defendant's status as a career offender has nothing to do with the filing of a prior felony information pursuant to 21 U.S.C. § 851. Rather, the filing of a prior felony information is needed only where the statutory minimum or maximum sentence is sought to be enhanced, "not where a defendant, by virtue of his criminal history, receives an increased sentence under the Sentencing Guidelines within the statutory range." Id. (emphasis in original).
Mishoe's claim that the significance of supervised release was not explained to him can be summarily dismissed. During his plea colloquy, Mishoe was advised that he faced a minimum term of three years' supervised release and a maximum term of lifetime supervised release, and that if he violated a condition of supervised release, he could face additional prison time. See Plea Tr. at 6, 10. Mishoe's claim that he was not advised of the nature and significance of supervised release is therefore meritless. Furthermore, contrary to Mishoe's argument, his total sentence — 140 months imprisonment followed by 36 months supervised release — is less than the total term of incarceration that Mishoe could have faced under the stipulated Guidelines range contained in the Plea Agreement (188 months).
1. Procedural Bar
It is well settled that federal prisoners may not employ section 2255 as a substitute for direct appeal. See, e.g., United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Addonizio, 442 U.S. 178, 184-85 (1979). As the Supreme Court explained, "[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 already has had a fair opportunity to present his federal claims to a federal forum." Frady, 456 U.S. at 164; see also Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998) ("A motion under § 2255 is not a substitute for an appeal.") (internal quotation marks and citation omitted).
Thus, "[w]here 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." Bousley v. United States, 523 U.S. 614, 622 (1998) (citing Murray v. Carrier, 477 U.S. 478, 485 (1986); Wainwriqht v. Sykes, 433 U.S. 72, 87 (1977); and Smith v. Murray, 477 U.S. 527, 537 (1986)); see also Rosario, 164 F.3d at 733.
Under the cause and prejudice standard, Mishoe bears the burden of showing "cause for failing to raise [the claim on direct appeal] and prejudice therefrom. . . ." McCleskey v. Zant, 499 U.S. 467, 494 (1991). Cause "must be something external to the petitioner, something that cannot fairly be attributed to him." Coleman v. Thompson, 501 U.S. 722, 753 (1991) (emphasis in original); see also Restrepo v. Kelly, 178 F.3d 634, 638 (2d Cir. 1999). If the petitioner cannot show cause, relief may still be available if he can show "that a fundamental miscarriage of justice would result from a failure to entertain the claim." McCleskey, 499 U.S. at 494-95. A defendant must demonstrate that he is actually innocent of the crime for which he has been convicted. See Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 321 (1995)). To demonstrate "actual innocence" a habeas petitioner "must show that it was more likely than not that no reasonable juror would have convicted him." Schlup, 515 U.S. at 327. Because Mishoe has shown neither cause and prejudice nor actual innocence, his remaining claims are procedurally barred.
2. Waiver
Mishoe's remaining claims are also precluded because he expressly waived the right to appeal or otherwise litigate under section 2255 any sentence within or below the range of 151-188 months imprisonment. See Plea Agreement at 5. Because Mishoe was sentenced to 140 months imprisonment, this waiver prevents him from bringing any claims regarding his sentence. Because all of his remaining claims, with the exception of the third, fall within this category, they are deemed waived.
A defendant's waiver of his right to appeal or collaterally attack his sentence is generally enforceable as long as the record contains sufficient evidence to establish that the defendant knowingly and voluntarily waived his right to appeal. See United States v. Tang, 214 F.3d 365, 368 (2d Cir. 2000); United States v. Garcia, 166 F.3d 519, 521 (2d Cir. 1999); United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998). As the Second Circuit has recognized:
[P]lea agreements can have extremely valuable benefits to both sides — most notably, the defendant gains reasonable certainty as to the extent of his liability and punishment, and the Government achieves a conviction without the expense and effort of proving the charges at trial beyond a reasonable doubt. . . . [T]he waiver [of appeal] provision is a very important part of the agreement — the Government's motivating purpose, decreased effort and expense of protracted litigation, is not well-met if the defendant is permitted to appeal that to which he has agreed.United States v. Rosa, 123 F.3d 94, 97 (2d Cir. 1997).
In the present case, the Plea Agreement expressly stated that "the defendant's stipulated sentencing Guidelines range is 151 to 188 months," and that the defendant waived the right to appeal or otherwise litigate under section 2255 "any sentence within or below the stipulated Sentencing range set forth above." Plea Agreement at 4, 5. At Mishoe's plea allocution, Magistrate Judge Peck confirmed that Mishoe understood this provision:
THE COURT: Let me call your attention to two provisions of the plea agreement letter and make sure that you understood them when you signed them.
Do you understand that pursuant to page 5 of the plea agreement letter you have agreed to not appeal or litigate under 28 U.S.C. § 2255 or otherwise any sentence that you get that is within or below the stipulated sentencing range set forth in the plea agreement letter?
THE DEFENDANT: Yes, I do. I understand
Plea Tr. at 11. This colloquy was sufficient to establish the knowing and voluntary character of Mishoe's waiver. See, e.g., United States v. DeJesus, 219 F.3d 117, 121 (2d Cir. 2000) (plea colloquy established that defendant understood the terms of the waiver of appeal provision in plea agreement). Accordingly, Mishoe's remaining challenges to his sentence are barred by his Plea Agreement.
IV. CONCLUSION
For the foregoing reasons, the motion to vacate, set aside, or correct Mishoe's sentence is denied. Because petitioner has failed to make "a substantial showing of the denial of a constitutional right," this Court will not issue a certificate of appealability. 28 U.S.C. § 2253(c)(2); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Clerk of the Court is directed to close this case.
SO ORDERED.