. Id. at pp. 12-13 (quoting Cirineo v. United States, No. 03 CIV. 6327 (RCC), 2005 WL 1214320 at *7 (S.D.N.Y. 2005)). Id. at p. 15 (The claim does not point to a specific subpoena or person, or โexplain how it was issued without authority or served inappropriately.โ).
Because there was no plea agreement, and because the Pimentel letter makes clear that it does not bind the Government or the Court, Lesane's arguments that the Government breached a "plea agreement" are not persuasive.See Cirineo v. United States, No. 03 Civ. 6327 (RCC), 2005 WL 1214320, at *3 n.2 (S.D.N.Y. May 19, 2005) (denying habeas petition where petitioner argued that Government had breached a Pimentel letter); Pena v. United States, No. 95 Cr. 130 (AGS), 2000 WL 1568322, at *3 (S.D.N.Y. Oct. 20, 2000) ("Pena . . . alleges that the sentence violated his plea agreement because it was higher than the range recommended in the plea agreement or Pimentel letter. This argument is frivolous.
To the extent that the plaintiff alleges that the "1937 Marijuana Tax Act" is unconstitutional, his complaint is moot. See.U.S. v. Register , 496 F.2d 1072, 1076 n. 2 (5th Cir. 1974) (explaining that the Marijuana Tax Act was repealed by the Comprehensive Drug Abuse Prevention and Control Act of 1970); see also Marijuana Tax Act of 1937, Pub.L. No. 75-238, 50 Stat. 551 (1937) (repealed 1970). Moreover, courts have repeatedly upheld the constitutionality of the current federal marijuana laws. Cirineo v. United States , No. 03 Civ. 6327 (RCC), 2005 WL 1214320, at *7 (S.D.N.Y. May 19, 2005) ("Federal courts across the United States have uniformly held that Congress validly exercised its power under the Commerce Clause when it enacted the Controlled Substances Act, 21 U.S.C. ยงยง 801 et seq., and that local narcotics activity has a substantial effect on interstate commerce."); United States v. Fry , 787 F.2d 903, 905 (4th Cir. 1986) (concluding there is "no fundamental right to produce or distribute marijuana commercially"); United States v. Greene , 892 F.2d 453, 454 (6th Cir. 1989) (finding that possession of marijuana is not protected by the First Amendment); Raich v.Gonzales , 500 F.3d 850, 866 (2007) (concluding that "federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering"); United States v. Mass , 551 F.Supp. 645, 647 (D.N.J. 1982) (stating there is no fundamental right to smoke marijuana).
466 U.S. at 689. Additionally, "the failure to raise meritless claims does not constitute ineffective assistance of counsel."Cirineo v. United States, No. 03 Civ. 6327, 2005 WL 1214320, at *5 (S.D.N.Y. May 19, 2005) (citing United States v. Kirsh, 54 F.3d 1062 (2d Cir. 1995)). Quail also claims an ineffective assistance of counsel for his trial counsel's failure to raise the issue of his mental competence.