Opinion
01 Civ. 8859 (JSM), 01 Civ. 9228 (JSM), [94 Cr. 631 (JSM)]
April 19, 2002
Joshua L. Dratel, New York, NY. For Petitioner Brown:
Van McDuffie a.k.a. Vincent Smith, United States Penitentiary, Lompoc, CA. For Petitioner McDuffie:
Sharon L. McCarthy, Assistant United States Attorney, New York, NY. For Government:
MEMORANDUM OPINION AND ORDER
Charles Lee Brown and Van McDuffie, who pleaded guilty to racketeering charges, have each filed a petition under 28 U.S.C. § 2255 for an order vacating his sentence.
Brown contends that his sentence is invalid under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), because (1) the factors used to enhance his sentence pursuant to the Sentencing Guidelines were not charged in the indictment or established beyond a reasonable doubt; and (2) § 5K1.1 permits the prosecutor rather than the jury to decide the factors determining sentence. While the arguments Brown makes are not insubstantial as a matter of logic, the Second Circuit has ruled that "Apprendi is inapplicable to Guidelines calculations that do not result in a sentence on a single count above the statutory maximum for that count." United States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001) (citingUnited States v. Garcia, 240 F.3d 180, 183-84 (2d Cir. 2001)).
McDuffie contends that (1) the Court at sentencing erroneously refused to consider a departure based upon the disparity among defendants in the same case; (2) the Court failed to conduct an adequate hearing on his claim that the prosecutor breached his plea agreement by not providing a § 5K1.1 letter; and (3) his counsel was ineffective. The first two grounds asserted were raised at the time of sentencing and could have been raised on appeal.
It is well-settled that:
an error which can be raised on appeal is not cognizable under § 2255 unless it is a constitutional violation or an error of law or fact of such "fundamental character" that it renders the entire proceeding irregular and invalid." United States v. Addonizio, 442 U.S. 178, 186, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979). See also Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962).United States v. Frady, 456 U.S. 152, 180 n. 2, 102 S.Ct. 1584, 1601 (1982).
McDuffie's claim that his counsel was ineffective is without merit. In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish: (1) that counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984). To establish prejudice "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.
McDuffie contends that his counsel was ineffective in failing to raise on appeal the claim that disparity among co-defendants may provide a ground for departure. However, the Second Circuit has clearly held that adjusting disparity among co-defendants' sentences is not a permissible ground for a downward departure. See United States v. Alba, 933 F.2d 1117, 1123 (2d Cir. 1991); United States v. Joyner, 924 F.2d 454, 461-62 (2d Cir. 1991).
McDuffie also contends that his counsel was ineffective at sentencing in refusing McDuffie's suggestion that he argue that the Presentence Report incorrectly failed to group his underlying predicate offenses. Since there was no merit to the arguments, counsel's decision not to raise the issue was well within the range of tactical strategy that is left to the professional judgment of defense counsel pursuant to the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Strickland v. Washington, 466 U.S. 668, 689 (1984).
McDuffie contends, and the Government concedes, that the Court erred in assessing a special assessment of $100, since at the time of his offense the special assessment was only $50. Therefore a corrected judgment will be filed indicating that McDuffie's special assessment is only $50. To the extent more than $50 has been collected from McDuffie, the excess is to be repaid to him.
For the foregoing reasons, the petitions for relief pursuant to 28 U.S.C. § 2255 are denied and the actions are dismissed. In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies as to the claims raised by McDuffie, an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue on McDuffie's claims.
With respect to claims raised by Brown, while the Apprendi claims are foreclosed by clear authority in the Second Circuit, an appeal would involve an issue of substance since the issue has not been decided by the Supreme Court.
SO ORDERED.