MEMORANDUM ORDER

WHITMAN KNAPP, Senior United States District Judge.

After a trial before us on July 14, 1998 Ricaurte Saldarriaga ("petitioner") was convicted on one count of possession of crack cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and one count of possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). On May 14, 1999 we sentenced petitioner to a term of 120 months' incarceration, to be followed by five years' supervised release. Currently before us is petitioner's motion pursuant to 28 U.S.C. § 2255, as well as his motions to amend his § 2255 petition, to obtain discovery with respect to the petition, for bail pending its resolution, and for the recusal of Robert B. Buehler, the Assistant United States Attorney assigned to his case. For the reasons that follow, we dismiss the petition and deny petitioner's related motions.

BACKGROUND

I. The Government's Case Against Petitioner

On November 24, 1997, petitioner accompanied Ruben Bautista to a meeting at the corner of 131st Street and 12th Avenue when Bautista, in defendant's presence, sold crack cocaine and cocaine to Detective Jose Pina, an undercover police officer working in conjunction with a Drug Enforcement Agency task force (the "Task Force"). This had been arranged by a cooperating witness named Santiago Soto, who himself had pled guilty to narcotics related charges and was incarcerated. Soto arranged for Detective Pina to meet Bautista and purchase from him 150 grams of crack cocaine and 100 grams of cocaine in exchange for $5,500.

When Detective Pina arrived at 131st and 12th Avenue, Bautista verified that he had the $5,500 with him and then led him around the corner to 131st where petitioner was waiting in front of a parked car holding a brown paper bag. Petitioner handed the bag to Bautista who immediately handed it to Detective Pina.

Detective Pina walked back around the corner to ensure that the other members of the Task Force, who were conducting surveillance, could view him Bautista and petitioner. When Detective Pina opened the bag in their presence and pulled out the cocaine, neither Bautista nor petitioner reacted. Both men followed Detective Pina about halfway across the street when Bautista told petitioner to wait for him back at the corner from which they came. Petitioner asked if he was sure, and Bautista assured him that he was.

After Detective Pina and Bautista crossed the street, members of the Task Force arrested Bautista. Petitioner immediately began running but was quickly arrested by members of the Task Force.

II. Petitioner's Defense

Bautista pleaded guilty before trial. At petitioner's trial, where he was represented by Jeremy Orden, Esq, the case for the defense included the testimony of petitioner himself and the testimony of Soto. Petitioner admitted being present with Bautista at the drug sale, but claimed that he did not furnish the drugs and had no idea that drugs changed hands. Instead, he claimed he was with Bautista that day to look at a truck Bautista asked him to repair and paint. In his testimony petitioner stated that he was waiting for Bautista to drive him home when Bautista's wife and sister got out of a taxi and embraced Bautista. Petitioner insinuated that Bautista's wife must have passed Bautista the drugs he later gave to Detective Pina.

Petitioner further testified that although he saw Bautista talking to Detective Pina, he never got closer to them than 15 feet. He denied having ever touched or even seen the brown paper bag given to Detective Pina, seeing the drugs being taken out of the bag or trying to cross the street with them.

Soto testified that he had engaged in several drug transactions with Bautista before he was incarcerated and on each of these occasions Bautista was alone when he picked up the drugs. He also testified that prior to November 24, 1997 he did not know petitioner, nor had ever seen him.

III. Petitioner's Appeal

Petitioner appealed his conviction, raising three claims: (1) that we improperly charged the jury regarding the Government's failure to use certain investigative techniques; (2) that we deprived petitioner of a full and fair trial by admonishing defense counsel before the jury; and (3) that we improperly denied him relief from the ten-year minimum sentence under the "safety valve" provisions of 18 U.S.C. § 3553 (f) and Section 5C1.2 of the Sentencing Guidelines. The Second Circuit rejected all of petitioner's claims and affirmed his conviction and sentence. United States v. Saldarriaga (2d Cir. 2000) 159 F.3d 1348.

On appeal, petitioner was represented by Robert E. Nicholson, Esq., whom the Second Circuit appointed after he informed it he no longer wished to be represented by Mr. Orden.

PROCEDURAL HISTORY

In April 1999, before petitioner was sentenced in the underlying criminal matter, he filed a petition pursuant to 28 U.S.C. § 2255 stating the following three claims: (1) his trial counsel's assistance was ineffective because he did not call Bautista as a witness or submit into evidence an affidavit signed by Bautista attesting to petitioner's innocence; (2) his trial counsel's assistance was ineffective because he did not submit evidence that could have impeached Detective Pina's credibility; and (3) the fact that Detective Pina stated at trial that the weight of the cocaine seized was 249 while the complaint had the amount as 279 shows that Detective Pina's testimony, which the jury used to convict petitioner, was false. After recognizing that his petition had been filed prematurely, petitioner wrote us requesting that it be held in abeyance pending his sentence and appeal. In our order dated June 22, 2000 we directed the Government to respond to claims one and two of the petition. On October 29, 2000, the Government filed its opposition to the petition. In a letter dated November 6, 2000 petitioner responded.

Thereafter, petitioner wrote us a letter dated April 8, 2001 "submitted in further support of [his] § 2255 petition." In this letter petitioner also requested permission to amend his petition in order to add two additional claims, one based on the Supreme Court's decision in Apprendi v. New Jersey (2000) 530 U.S. 466, and the other based on ineffective assistance of appellate counsel. Petitioner subsequently attempted to file three additional motions, each dated May 1, 2001 and received by the Court on May 9, 2001, requesting, among other things, discovery related to the petition, bail pending resolution of the petition and the recusal of Robert B. Buehler, the Assistant United States Attorney assigned to his case.

DISCUSSION

I. The § 2255 Petition

In Ground One and Ground Two of his § 2255 petition, petitioner claims: that his trial counsel was ineffective by not calling Bautista as a witness or submitting into evidence an affidavit signed by Bautista attesting to petitioner's innocence; and his trial counsel was ineffective by not submitting evidence that could have impeached Detective Pina's credibility. Both grounds assert Sixth Amendment ineffective assistance of trial counsel.

A. Procedural Default

The Government points out that petitioner should be procedurally barred from raising these ineffective assistance of trial counsel claims in his § 2255 petition since he did not raise them in his direct appeal when he could have since his trial counsel did not represent him on appeal, and the record pertaining to these claims was fully developed. Billy-Eko v. United States (2d Cir. 1993) 8 F.3d 111. The only way for petitioner to overcome this procedural hurdle is to "show that there was cause for failing to raise the issue, and prejudice resulting therefrom." Douglas v. United States (2d Cir. 1993) 13 F.3d 43, 46; Campino v. United States (2d Cir. 1992) 968 F.2d 187, 190. "Cause" under this test must be "something external to petitioner, something that cannot fairly be attributed to him," however, attorney ignorance or inadvertence is not "cause" for failing to raise an issue on direct appeal, unless it rises to the level of ineffective assistance of counsel. Coleman v. Thompson (1991) 501 U.S. 722, 753-54 (emphasis in original); see also United States v. Pipitone (2d Cir. 1995) 67 F.3d 34, 38-39 (defense counsel's ignorance of existing legal authority does not amount to "cause" for failure to appeal a sentence).

Attached to petitioner's response dated November 6, 2000 are several letters between petitioner and Mr. Nicholson, his appellate counsel. In the first of such letters, Mr. Nicholson writes: "In my opinion you cannot raise ineffective assistance of counsel in your appeal. The reason for this is that the record does not support such a claim . . . A claim of ineffective assistance of counsel is particularly appropriate in a 2255 motion where you can expand the record." In all five of the attached letters written by Mr. Nicholson he advises petitioner that he should not raise his ineffective assistance of counsel claims in his direct appeal but should rather wait for his § 2255 petition. In none of his letters does Mr. Nicholson inform petitioner that not raising such issues in his direct appeal could result in their procedural bar.

However, Mr. Nicholson's misleading legal advice does not amount to "cause" to satisfy the "cause and prejudice" test. Pipitone 67 F.3d at 38-39. Assuming, arguendo, it did, petitioner cannot make these arguments in his § 2255 petition because he is unable to demonstrate "prejudice" since these claims would have been denied had he raised them in his direct appeal.

B. Ineffective Assistance of Trial Counsel.

In order to demonstrate ineffective assistance of counsel, defendant must show that: (1) his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms;" and (2) "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington (1984) 466 U.S. 668, 687-89, 693-94. Claiming ineffective assistance merely because petitioner disagrees with his counsel's trial strategy does not satisfy the first Strickland prong. United States v. Sanchez (2d Cir.) 790 F.2d 245, 253, cert. denied, (1986) 479 U.S. 989.

In his first ground for relief, petitioner claims that trial counsel was ineffective because he failed to call his co-defendant, Bautista, as a witness for the defense.

According to petitioner, Bautista's testimony would have demonstrated that petitioner was not aware that Bautista was going to sell drugs to Detective Pina on November 24, 1997. Petitioner's claim is based on an affidavit Bautista signed on November 24, 1997 in which he stated that petitioner "is totally innocent of any and all charges in this matter whether as a principle or accomplice." (Pet. Ex. A).

This claim is denied for several reasons. The record indicates that trial counsel vigorously investigated this issue. Far from being ineffective, Mr. Orden, after he was informed that Bautista had made certain exculpatory statements regarding petitioner, made several attempts to speak with him in consideration of calling him as a witness for the defense at petitioner's trial. Secondly, there is nothing in the record to suggest that Bautista would have waived his Fifth Amendment right and testified on petitioner's behalf. Furthermore, the decision not to call Bautista as a defense witness was a tactical one, which we should not second-guess. See United States v. Garguilo (2d Cir. 1963) 324 F.2d 795, 796-97.

In his second ground for relief petitioner accuses trial counsel of having "withheld Evidence" that Detective Pina, the officer who testified against petitioner at his trial, "has Been Involved in trouble with the law himself, And has been charged with using Excessive force for no reason at all." (Pet. at 5). Although his petition is not specific, we gather that petitioner is referring a civil suit brought against Detective Pina and ten other members of the Yonkers Police Department in 1995. The civil suit was dismissed as to Detective Pina and no charges of any kind were ever brought against him with respect to the incident.

Rule 608(b) of the Federal Rules of Evidence provides: "specific instances of conduct of a witness, for the purpose of attacking or supporting the witness' credibility . . . may not be proved by extrinsic evidence" unless, subject to the court's discretion, the specific instances are "probative of truthfulness or untruthfulness." Unsubstantiated civil rights allegations made against Detective Pina would have no bearing on his "character for truthfulness." Any cross-examination regarding such allegations would have been irrelevant and improper under the Federal Rules of Evidence. His trial counsel's representation certainly cannot be deemed ineffective for failing to cross-examine Detective Pina about an unsubstantiated claim.

II. Petitioner's Request to Amend the Petition

Petitioner has requested permission to amend his § 2255 petition in order to raise the following two claims: (1) that the jury in his case did not find, nor were they instructed to find, pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466, the amount of narcotics petitioner possessed, an element of the offenses of which he was convicted, which increased the statutory minimum applied to his sentence, and (2) ineffective assistance of appellate counsel. We deny petitioner's motion to amend.

While none of the Rules Governing § 2255 Proceedings speak directly to requests to amend the petition, Rule 12 of those rules states that when there is no such rule "the district court may proceed in any lawful manner . . . and may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate."

Under Rule 15 of the Federal Rules of Civil Procedure a party needs leave of the court to amend its pleadings when more than twenty days have passed since the response to the original pleadings has been served. Although leave to amend "shall be freely given a pleading to which no response is permitted, within twenty days after it is when justice so requires," Fed.R.Civ.P. 15(a), we may deny leave when granting such would be futile. Foman v. Davis (1962) 371 U.S. 178, 182; see, e.g. Morgan v. Fillion (S.D.N.Y. Jan. 31, 2000) 98 Civ. 986, 2000 WL 235986 at *10 (denying motion to amend as futile "because none of the claims in the amended [habeas] petition has any colorable merit."). We deny petitioner's request to amend since his Apprendi claim cannot be raised on collateral review and his ineffective assistance of counsel claim is without merit.

A. Applying Apprendi to Cases on Collateral Review

Apprendi sets forth the following new constitutional rule of criminal procedure:

"[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory minimum must be submitted to a jury, and proved beyond a reasonable doubt." 371 U.S. at 490. Since petitioner's trial took place before the decision in Apprendi, the threshold question is whether it applies retroactively on collateral review.

Under the Supreme Court's rule in Teague v. Lane (1989) 489 U.S. 288, a new rule of criminal procedure only applies retroactively in one of two limited exceptions:

(1) new rules which "place an entire category of primary conduct beyond the reach of criminal law, or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense;" and (2) "new watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding."

Bilzerian v. United States (2d Cir. 1997) 127 F.3d 237, 241 (quoting Sawyer v. Smith (1990) 497 U.S. 227, 241-42). Neither the Supreme Court nor the Second Circuit has decided whether Apprendi applies retroactively to cases on collateral review. See Forbes v. United States (2d Cir. 2001) 262 F.3d 143, 145, 146 (The Supreme Court has not indicated that it has retroactive effect to cases on collateral review and "we make no intimation as to the retroactive effect of Apprendi on first petitions under § 2255"). However, the Fourth, Eighth, Ninth Circuits and Eleventh Circuits have determined that Apprendi does not fall within one of the two limited exceptions outlined in Teague and thus should not be applied retroactively. See United States v. Moss (8th Cir. 2001) 252 F.3d 993, 997 ("[W]e hold today that Apprendi is not of watershed magnitude and that Teague bars petitioners from raising Apprendi claims on collateral review."); United States v. Sanders (4th Cir.) 247 F.3d 139, 150, cert. denied, (2001) 122 S.Ct. 573. ([W]e do not ready Apprendi to hold that the country's criminal justice system malfunctioned so fundamentally prior to the year 2000, as to merit the retroactive application of the Court's new procedural rule."); Jones v. Smith (9th Cir. 2000) 231 F.3d 1227, 1238; and In re Joshua (11th Cir. 2000) 224 F.3d 1281, 1283.

At least one case in this district has considered whether Apprendi should be retroactively applied to cases on collateral review. See Garcia v. United States (S.D.N Y Jan. 11, 2002) No. 01 Civ. 7188, 2002 WL 42888. In that case Judge Scheindlin found neither of the two exceptions delineated in Teague applicable to the Apprendi rule, and thus dismissed the § 2255 petition before her.

We agree with Judge Scheindlin's opinion in Garcia. The rule in Apprendi clearly does not legalize a defendant's primary conduct. Nor can it be considered a "watershed rule" of criminal procedure as to "'alter our understanding of the bedrock procedural elements' essential to the fairness of a proceeding." Sawyer, 497 U.S. at 242 (quoting Teague, 489 U.S. at 311). Apprendi, albeit a significant decision, merely shifts to the jury the determination of factors that may enhance a maximum statutory penalty, which was once the judge's function. In Bilzerian, the Second Circuit case relied upon in Garcia, the Court considered whether the second Teague exception applied to a new rule which shifted from the judge to the jury the finding of materiality in prosecutions for concealing material facts from or making false statements to a federal entity. 127 F.3d at 241. The Second Circuit held this rule, outlined in the Supreme Court's decision in United States v. Gaudin (1995) 515 U.S. 506, which merely shifts the determination of an element of a crime from the judge to the jury, not to be a watershed rule permitting retroactive application on collateral review. Id. Under this same logic, we cannot apply Apprendi retroactively. For this reason, it would be futile to allow petitioner to amend his petition to add such a claim.

B. Ineffective Assistance of Appellate Counsel

The standard outlined in Strickland applies to claims of ineffective assistance of appellate counsel. Mayo v. Henderson (2d Cir. 1994) 13 F.3d 528, 533. "A 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." Id. However, a petitioner will not prevail by merely showing that counsel omitted meritless arguments. Id.

While petitioner has not articulated the breadth of what his ineffective assistance of appellate counsel claim would entail if we permitted him to amend, we are familiar with the record, which includes previous submissions petitioner has made in regard to his representation by Mr. Nicholson. As it appears to us, Mr. Nicholson's representation does not come close to having been so defective as to meet the stringent standard articulated in Strickland. Even Mr. Nicholson's advice to petitioner that he would be able to raise an ineffective assistance of trial counsel claim in a § 2255 petitioner without raising it on direct appeal, while misleading, does not rise to the level of ineffective assistance of appellate counsel. Among other reasons, had such a claim been raised on appeal, it would, for reasons discussed earlier, have been denied on the merits, therefore, petitioner would not be able to demonstrate prejudice from having not raised it.

Since petitioner's ineffective assistance of appellate counsel claim lacks merit, we do not grant him leave to amend his petition to add such a claim.

For the aforementioned reasons, we deny, in its entirety, petitioner's request to amend.

III. Petitioner's Other Motions

Petitioner also seeks discovery, bail pending the resolution of his petition and the recusal of Assistant United States Attorney Robert B. Buehler.

Petitioner seeks to depose or, in the alternative, to serve interrogatories on, Bautsita, Mr. Orden, Mr. Nicholson and Detective Pina, the undercover officer who testified against him at trial.

Rule 6(a) of the Federal Rules Governing Section 2255 Proceedings states, in pertinent part, that "[a] party shall be entitled to invoke the processes of discovery . . . if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." (emphasis added).

Since we have found that petitioner's underlying claims lack merit, we do not find that he has shown good cause as to warrant allowing him to obtain the discovery he seeks. See Lopez v. United States (S.D.N.Y. Aug. 29, 2000) 98 Civ. 7969, 2000 WL 1229393 at *4 ("Courts have generally held that production need not be ordered in a § 2255 proceeding when the allegations of a prisoner do not establish a prima facie case for relief." (internal quotations omitted)).

Since we find that petitioner's claims are without merit and the ultimate determination of his petition is decided in this Memorandum and Order, we deny petitioner's request to be released on bail.

In addition, we deny petitioner's request for the recusal of Assistant United States Attorney Robert B. Buehler. While petitioner states that Mr. Buehler is a "material witness against appellate counsel," (Petitioner's Supporting Affirmation at ¶ 7), there is nothing in the record to support this claim. Furthermore, we are generally reluctant to call a prosecutor as a witness. See United States v. Wallach (S.D.N.Y. 1992) 788 F. Supp. 739, 743-44 (a defendant must demonstrate a compelling and legitimate need to call a prosecutor as a witness).

CONCLUSION

For the above stated reasons, we dismiss the petition in its entirety and deny its related motions.

A certificate of appealability may only issue if "the applicant has made a substantial showing of the denial of a constitutional right." 28 § 2253(c)(2). As petitioner has not made this showing, a certificate of appealability will not issue. See Lozada v. United States (2d Cir. 1997) 107 F.3d 1011, 1016-17, abrogated on other grounds by United States v. Perez (2d Cir. 1997) 129 F.3d 255, 259-60. We certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, in that it would have no chance of success. See Coppedge v. United States (1962) 369 U.S. 438.