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holding that counsel's failure to anticipate a change in law was not ineffective assistance
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Nos. 04 Civ. 9700 (AJP), 00 Cr. 36 (RMB).
May 18, 2005
OPINION AND ORDER
Pro se petitioner Manuel Pena has petitioned pursuant to 28 U.S.C. § 2255 to vacate his sentence of life imprisonment after his conviction for conspiracy to distribute one kilogram or more of heroin and for re-sentencing within the Sentencing Guidelines range of 151 to 188 months. (04 Civ. 9700, Dkt. No. 1: Pet.) Pena claims that (1) his "sentence violates his Sixth Amendment right to jury trial" (Pet. ¶ 12(A); 04 Civ. 9700, Dkt. No. 2: Pena Br. at 6-9); (2) Blakely v. Washington applies retroactively to his petition (Pet. ¶ 12(B); Pena Br. at 10-12); (3) appellate counsel was ineffective for failing to appeal "drug amounts and enhancements determined under a preponderance of evidence standard" (Pet. ¶ 12(C); Pena Br. at 12-13); and (4) appellate counsel was ineffective for failing to either file a petition for a writ of certiorari with the United States Supreme Court or notify Pena of his right to do so (Pet. ¶ 12(D); Pena Br. at 14-15).
The parties have consented to decision of Pena's petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (See 00 Cr. 36, Dkt. No. 137: Consent Form.)
For the reasons set forth below, Pena's motion is DENIED.
FACTS
On February 28, 2001, Michael Pena was found guilty after a jury trial of conspiracy to distribute one kilogram or more of heroin. (04 Civ. 9700, Dkt. No. 2: Pena Br. at 2; 2/28/05 Gov't Letter Br. at 3.) Additionally, on March 1, 2001, the jury returned a special verdict of $7 million forfeiture, as charged in the indictment. (See 00 Cr. 36, Dkt. No. 77: 5/2/01 Preliminary Order of Forfeiture; 00 Cr. 36, Dkt. No. 78: Judgment at 7; 00 Cr. 36, Dkt. No. 88: Sentencing Transcript at 24.)
Sentence
On June 1, 2001, Pena was sentenced to life imprisonment, and also five years on supervised release. (00 Cr. 36, Dkt. No. 78: Judgment at 2, 3.) At sentencing, Judge Richard M. Berman determined that the amount of heroin involved in the conspiracy with respect to Pena was thirty kilograms. (00 Cr. 36, Dkt. No. 88: 6/1/01 Sentencing Transcript ["S."] 5-6.) Since the jury had found, pursuant to 21 U.S.C. § 841(b)(1)(A), that the amount at issue was one kilogram or more, Judge Berman addressed the potential Apprendi issue:
I just want to note preliminarily that my instructions to the jury in this case in several instances also mentioned one kilogram or more of heroin, and that in this case the jury was, in reaching its verdict, asked to specifically comment on the amount of heroin in the event that they determined that there was an unlawful conspiracy, which in fact the jury did, and they did in fact specifically comment that it had been proven beyond a reasonable doubt that one kilogram or more of heroin was involved.
The upshot of that is that, I'm noting, that the issues under the Apprendi case really do not apply here. That is to say, it is not necessary for the jury, in my opinion, reading Apprendi, to have specifically determined for purposes of sentencing as I am going to do that there were thirty kilograms or more of narcotics involved because as I read Apprendi that case does not kick in as it were because the maximum sentence in this case vis-a-vis one kilogram or more of heroin would be life imprisonment. So I am doing nothing in finding, as I will do, and as is reflected in the presentence investigation report, that there were at issue here thirty kilograms or more of heroin. I think that is under Apprendi a task that the Judge can and should and I did determine. I'll reference in that connection two cases, one is United States v. McLeod, Second Circuit case from this year, and United States v. Garcia, also a Second Circuit case from this year.
(S. 5-6.) Judge Berman referred to the direct testimony on which he based his finding. (S. 6-7, 10-11.) Defense counsel objected to the Judge's finding as to drug quantity as violatingApprendi and stated that, because he foresaw continuingApprendi-related litigation over sentencing issues, his objection was meant to preserve the issue. (S. 7-8, 12-13.)
Judge Berman determined that, under the United States Sentencing Guidelines, Pena had an offense level of 44 and a criminal history category of Ill. (S. 10-12.) Defense counsel objected to the Judge's guideline calculation under 2D1.1 of an aggravating factor for possession of a firearm, which increased the base offense level from 42 to 44. (S. 13.) Judge Berman noted, and defense counsel agreed, that the sentencing range utilizing the defense's guideline calculation of 42 would have been 360 months to life (S. 13-14, 16, 17, 21), and Judge Berman said that even at an offense level of 42, he would sentence Pena to life imprisonment. (S. 16, 21.) Pursuant to the Guidelines calculation he had made, Judge Berman sentenced Pena to life imprisonment followed by five years supervised release, a mandatory special assessment of $100, and forfeiture of $7,000,000. (S. 21-27.)
Specifically, Judge Berman made the following findings pursuant to the United States Sentencing Guidelines in his calculation arriving at 44: (1) the base offense level was 38, under 2D1.1C1, with a thirty kilograms or more heroin conspiracy (S. 10-11); (2) add four levels for Pena's aggravating role under 3B1.1A (S. 11); and (3) add two levels under 2D1.1 — specific offense characteristics (S. 11).
Pena's Direct Appeal
Represented by new retained counsel (Pena Reply Br. at 13), Pena appealed to the Second Circuit on the grounds that he received ineffective assistance of trial counsel due to trial counsel's failure to: (1) object to the Government's reference at trial to truth-telling provisions of certain witnesses' plea agreements; (2) present a case-in-chief; and (3) object to the Government's presentation of cumulative evidence. United States v. Vergera, No. 01-1309, 73 Fed. Appx. 478, 479, 2003 WL 21938620 at *1 (2d Cir. Aug. 13, 2003).
On August 13, 2003, the Second Circuit affirmed Pena's conviction. United States v. Vergera, 2004 WL 21938620. Pena did not file a petition for writ of certiorari with the Supreme Court and his time for doing expired November 11, 2003, 90 days after entry of the Second Circuit's decision. See 28 U.S.C. § 2101(c) ("Any . . . writ of certiorari intended to bring any judgment or decree . . . before the Supreme Court for review shall be . . . applied for within ninety days after the entry of such judgment or decree."). Pena's Present § 2255 Motion
On December 9, 2004, Pena filed his present pro se § 2255 motion to vacate his sentence. (04 Civ. 9700, Dkt. No. 1: Pet.) Pena alleged: (1) his "sentence violates his Sixth Amendment right to jury trial" (Pet. ¶ 12(A); 04 Civ. 9700, Dkt. No. 2: Pena Br. at 6-9); (2) Blakely v. Washington applies retroactively to his petition (Pet. ¶ 12(B); Pena Br. at 10-12); (3) appellate counsel was ineffective for failing to appeal "drug amounts and enhancements determined under a preponderance of the evidence standard" (Pet. ¶ 12(C); Pena Br. at 12-13); and (4) appellate counsel was ineffective for failing to either file a petition for a writ of certiorari with the United States Supreme Court or notify Pena of his right to do so (Pet. ¶ 12(D); Pena Br. at 14-15).
ANALYSIS
I. PENA'S FIRST AND SECOND CLAIMS ARE DENIED BECAUSE BLAKELY AND BOOKER DO NOT APPLY RETROACTIVELY ON COLLATERAL REVIEW
Pena's first habeas ground asserts that under "the Apprendi line of cases, as clarified by Blakely" v. Washington, 124 S. Ct. 2531 (2004), "his sentence violate[d] his Sixth Amendment right to a jury trial" because Pena had the right to have all facts found by a jury and the judge's finding of the fact of the 30 kilograms of heroin and "numerous enhancements" contravened that right. (04 Civ. 9700, Dkt. No. 2: Pena Br. at 9.) Pena's second habeas ground argues that Blakely applies retroactively on collateral review. (04 Civ. 9700, Dkt. No. 1: Pet. ¶ 12(B).)
The Second Circuit has made clear that Blakely and Booker do not apply retroactively on collateral review. Guzman v.United States, No. 03-2446, ___ F.3d ___, 2005 WL 803214 at *1 (2d Cir. Apr. 8, 2005) ("[W]e hold that Booker is not retroactive: it does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker issued."); United States v.Mitchell, No. 04-3367, 122 Fed. Appx. 539, 541, 2005 WL 387974 at *1 (2d Cir. Feb. 18, 2005) ("This court has held . . . thatBooker does not apply retroactively to cases on collateral review."); Green v. United States, 397 F.3d 101, 103 (2d Cir. 2005) ("[N]either Booker nor Blakely apply retroactively to [petitioner's] collateral challenge."); Carmona v. United States, 390 F.3d 200, 202 (2d Cir. 2004); see, e.g., Lajara v. United States, 05 Civ. 3672, 2005 WL 1033474 at *1 (S.D.N.Y. May 4, 2005) (Peck, M.J.) ("While [petitioner] relies on the Blakely and Booker/Fanfan Supreme Court decisions, . . . the Supreme Court has not held those decisions to be applicable to cases on collateral review, and in fact the Second Circuit has held that Blakely and Booker/Fanfan are not applicable to cases on collateral review."); Martinez v. United States, 01 Civ. 11559, 2005 WL 927163 at *1 (S.D.N.Y. Apr. 20, 2005) ("Guzman holds that Booker does not apply retroactively to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker was handed down."); Steele v. United States, 04 Civ. 6918, 02 Cr. 629, 2005 WL 704868 at *16 n. 18 (S.D.N.Y. Mar. 29, 2005) (Peck, M.J.) ("Blakely and Booker . . . do not apply retroactively on collateral review.") (citing cases); Rodriquez v. United States, No. 04-CV-2944, 2005 WL 735918 at *2 (E.D.N.Y. Mar. 28, 2005) ("Blakely and Booker do not apply retroactively to any collateral challenges to judgments that were final at the time those cases were decided.") Since Pena's judgment was final before both Blakely and Booker were decided, he cannot state a claim under either decision.
See also, e.g., Eng v. Drew, No. 9:05 CV 0141, 2005 WL 928630 at *3 n. 10 (N.D.N.Y. Apr. 20, 2005) (Blakely and Booker do not apply retroactively on collateral review) (citing cases from 1st, 10th 11th Cirs.); Vasquez v. United States, No. 96-CV-4656, 2005 WL 775900 at *2 (E.D.N.Y. Apr. 6, 2005) (Booker does not apply retroactively on collateral review); Hanna v. United States, No. 97 CV 970, 2005 WL 783370 at *2 n. 1 (E.D.N.Y. Apr. 6, 2005) ("Booker does not apply retroactively to cases on collateral review."); Rodriguez v. United States, No. 04-CV-1158, 2005 WL 755769 at *4 (E.D.N.Y. Apr. 4, 2005) (Blakely and Booker do not apply retroactively to cases on collateral review); Stevens v.United States, 01 Civ. 400, 03 Civ. 4841, 2005 WL 756826 at *2 (S.D.N.Y. Apr. 4, 2005) ("Booker does not apply retroactively on collateral review."); Muniz v. United States, 04 Civ. 10209, ___ F. Supp. 2d ___, 2005 WL 589396 at *6 (S.D.N.Y. Mar. 14, 2005); Harris v. United States, 97. Civ. 1904, 2005 WL 578918 at *2 (S.D.N.Y. Mar. 11, 2005) ("'neither Blakely norBooker apply retroactively to [petitioner's] collateral challenge.'") (quoting Green v. United States, 397 F.3d at 103); Huang v. United States, 03 Civ. 3755, 91 Cr. 827, 2005 WL 550888 at *2 (S.D.N.Y. Mar. 9, 2005) (Blakely does not apply retroactively on collateral review); Woodard v. United States, No. 04-CV-3570, 2005 WL 524725 at *2 (E.D.N.Y. Mar. 7, 2005) (Booker and Blakely do not apply retroactively on collateral review for first time § 2255 petitions); United States v. Reyes, 90 Cr. 584-01, 2005 WL 427578 at *1 (S.D.N.Y. Feb. 23, 2005) (Blakely and Booker do not apply retroactively on collateral review); Nnebe v. United States, 04 Civ. 2416, 01 Cr. 5455, 2005 WL 427534 at *9 (S.D.N.Y. Feb. 22, 2005) (Blakely does not apply retroactively on collateral review);Hamdani v. United States, No. Civ. A. 04-3332, 2005 WL 419727 at *1-2 (E.D.N.Y. Feb. 22, 2005) (Blakely and Booker do not apply retroactively on initial § 2255 motions).
Under Apprendi, the governing Supreme Court precedent at the time Pena's case was on appeal, Pena's sentence did not violate the Sixth Amendment. Apprendi held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000). The Second Circuit has considered the applicability of Apprendi to drug conspiracies charged under 28 U.S.C. §§ 841 and 846, as here, and according to that precedent, there was no Apprendi violation here. See United States v.Luciano, 311 F.3d 146, 152-53 (2d Cir. 2002) ("'Even if . . . not charged in the indictment or found by the jury, . . . drug . . . quantity may be used to determine the appropriate sentence so long as the sentence imposed is not greater than the maximum penalty authorized by statute for the offense charged in the indictment and found by the jury.'"), cert. denied, 540 U.S. 1167, 124 S.Ct. 1185 (2004); United States v. Thomas, 274 F.3d 655, 660 n. 3, 664 (2d Cir. 2001) (en banc). An Apprendi violation occurs when "the defendant is sentenced on the basis of a triggering fact not found by the jury to a sentence that exceeds the maximum that would have been applicable but for the triggering fact, but if the defendant's sentence is within the otherwise applicable maximum, no violation of Apprendi has occurred, even though the defendant was sentenced under a statute that allows for a sentence that exceeds that otherwise applicable maximum." United States v. Luciano, 311 F.3d at 151. Therefore, "drug quantity becomes an element of the offense under § 841 [or conspiracy under § 846] 'only where' it may be used to impose a sentence above the applicable statutory maximum."United States v. Richards, 302 F.3d 58, 66 n. 5 (2d Cir. 2002). Otherwise, drug quantity is a sentencing factor and "'the constitutional rule of Apprendi does not apply where the sentence imposed is not greater than the prescribed statutory maximum for the offense of conviction.'" United States v.Richards, 302 F.3d at 66 (quoting United States v. Thomas, 274 F.3d at 664).
As quoted above, Judge Berman cited two Second Circuit cases which had been decided in 2001, the year in which Pena was sentenced. Those two cases are in accord with the discussion and cases cited above: United States v. Garcia, 240 F.3d 180, 184 (2d Cir.), cert. denied, 533 U.S. 960, 121 S. Ct. 2615 (2001), held that "a [sentencing] guideline factor, unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum, may be determined by a sentencing judge and need not be submitted to a jury"; and United States v. McLeod, 251 F.3d 78, 82 (2d Cir.), cert. denied, 534 U.S. 935, 122 S. Ct. 304 (2001), affirmed Garcia's holding.
Here, the jury found Pena guilty of conspiring to distribute one or more kilograms of heroin pursuant to 21 U.S.C. § 841(b)(1)(A). (See page 2 above.) The maximum sentence under § 841(b)(1)(A) is life. Pena's sentence to life imprisonment, based in part on a finding by Judge Berman at sentencing that the amount of heroin involved in the conspiracy was 30 kilograms, is not greater than the statutory maximum applied to the facts found by the jury and therefore does not violate Apprendi.
Pena's claim that his sentence violated his Sixth Amendment right to a jury trial under Aprendi and his related contention that Blakely and Booker apply retroactively are DENIED.
II. PENA'S INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CLAIMS ARE DENIED A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel
For additional decisions authored by this Judge discussing the Strickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report and Recommendation, see, e.g., Yapor v. Mazzuca, 04 Civ. 7966, 2005 WL 894918 at *23-25 (S.D.N.Y. Apr. 19, 2005) (Peck, M.J.); James v. Artus, 03 Civ. 7612, 2005 WL 859245 at *13-15 (S.D.N.Y. Apr. 15, 2005) (Peck, M.J.);Steele v. United States, 04 Civ. 6918, 02 Cr. 629, 2005 WL 704868 at *7-8 (S.D.N.Y. Mar. 29, 2005) (Peck, M.J.); Curry v.Burge, 03 Civ. 0901, 2004 WL 2601681 at *26-27 (S.D.N.Y. Nov. 17, 2004) (Peck, M.J.); Otero v. Eisenschmidt, 01 Civ. 2562, 2004 WL 2504382 at *28 (S.D.N.Y. Nov. 8, 2004) (Peck, M.J.);Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *26 (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.); Medina v. McGinnis, 04 Civ. 2515, 2004 WL 2088578 at *20-21 (S.D.N.Y. Sept. 20, 2004) (Peck, M.J.); Smalls v. McGinnis, 04 Civ. 0301, 2004 WL 1774578 at *13-15 (S.D.N.Y. Aug. 10, 2004) (Peck, M.J.);Gillespie v. Miller, 04 Civ. 0295, 2004 WL 1689735 at *14-16 (S.D.N.Y. July 29, 2004) (Peck, M.J.); Rodriguez v.Senkowski, 03 Civ. 3314, 2004 WL 503451 at *39 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *27 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.);Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *22-24 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.) (citing my prior decisions); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *32-34 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) 2003 WL 22846044 (S.D.N.Y. Dec. 2, 2003) (Kaplan, D.J.); Quinones v.Miller, 01 Civ. 10752, 2003 WL 21276429 at *18-19 (S.D.N.Y. June 3, 2003) (Peck, M.J.) (citing my prior decisions), report rec. adopted, 2005 WL 730171 (S.D.N.Y. Mar. 31, 2005) (Pauley, D.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *16-19 (S.D.N.Y. May 31, 2000) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.), aff'd, 368 F.3d 179 (2d Cir. 2004); Fluellen v.Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 123 S. Ct. 1787 (2003).
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064; accord, e.g., Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S. Ct. at 2064.
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."Strickland v. Washington, 466 U.S. at 689, 104 S. Ct. at 2065 (citation omitted).
Accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2535;Bell v. Cone, 535 U.S. 685, 695, 122 S. Ct. 1843, 1850 (2002).
Accord, e.g., Bell v. Cone, 535 U.S. at 698, 122 S. Ct. at 1852; Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).
Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S. Ct. at 2068-69. Put another way, the "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. at 694, 104 S. Ct. at 2068.
See also, e.g., Wiggins v. Smith, 123 S. Ct. at 2542; Bell v. Cone, 535 U.S. at 695, 122 S. Ct. at 1850;Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 315; DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.),cert. denied, 519 U.S. 824, 117 S. Ct. 83 (1996).
"[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068; accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2542. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Strickler v. Greene, 527 U.S. 263, 289-91, 119 S. Ct. 1936, 1952-53 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1565-66 (1995); Nix v. Whiteside, 475 U.S. 157, 175, 106 S. Ct. 988, 998 (1986) ("a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland"); Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068 ("The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."). Rather, the phrase "reasonable probability" seems to describe a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility." Strickler v. Greene, 527 U.S. at 291, 119 S. Ct. at 1953; cf. id. at 297-301, 119 S. Ct. at 1955-58 (Souter, J., concurring dissenting) (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight").
The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S. Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.
Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'"Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quotingStrickland v. Washington, 466 U.S. at 695-96, 104 S. Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).
The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697, 104 S. Ct. at 2069.
Accord, e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S. Ct. 746, 764 n. 14 (2000).
In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S. Ct. at 2066.
See also, e.g., Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S. Ct. 1, 4 (2003); Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted);Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S. Ct. 81 (1994).
As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard."Lindstadt v. Keane, 239 F.3d at 199.
1. Strickland and Appellate Counsel
The Strickland test applies to appellate as well as trial counsel. See, e.g., Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 764 (2000). A petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted objectively unreasonably in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court. E.g., Smith v. Robbins, 528 U.S. at 285, 120 S. Ct. at 764; Aparicio v. Artuz, 269 F.3d at 95; Mayo v.Henderson, 13 F.3d at 533-34; see also Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *18 n. 30 (S.D.N.Y. May 31, 2002) (Peck, M.J.) (discussing the issue of whether a federal or state standard should apply), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.), aff'd, 368 F.3d 179 (2d Cir. 2004).
Accord, e.g., Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S.Ct. 830, 836-37 (1985); Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 197 (2d Cir. 2002),cert. denied, 537 U.S. 1146, 123 S. Ct. 946 (2003); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v.Kuhlman, 261 F.3d 303, 319 (2d Cir. 2001); McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 520, 115 S.Ct. 81 (1994); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912, 113 S. Ct. 2347 (1993);Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990).
Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S. Ct. at 765 (citing Jones v. Barnes, 463 U.S. 745, 750-54, 103 S. Ct. 3308, 3312-14 (1983)). Reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Lugo v. Kuhlmann, 68 F. Supp. 2d 347, 371-72 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.). Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d at 533; see also, e.g., Jackson v. Leonardo, 162 F.3d at 85.
Accord, e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); Mayo v. Henderson, 13 F.3d at 533.
Accord, e.g., Jones v. Barnes, 463 U.S. at 754, 103 S. Ct. at 3314; Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir.), cert. denied, 469 U.S. 869, 105 S. Ct. 216 (1984).
B. Pena's Ineffective Assistance of Appellate Counsel Claims Are Denied 1. Appellate Counsel Was Not Ineffective for Failing to Appeal the Sentencing Enhancements
Pena claims that it was error for his appellate counsel not to appeal the drug quantity and other Guidelines enhancements found by the sentencing judge. (04 Civ. 9700, Dkt. No. 2: Pena Br. at 12.) In his reply brief, Pena clarified his argument:
[T]he government contends that Pena's appellate counsel's failure to foresee the decision in Blakely and Booker did not constitute ineffective assistance of counsel. . . . The government grossly misconstrues Pena's claim. The words "counsel's failure to foresee the decision in Blakely and Booker" are the government's words, not Pena's words. Pena claimed that Apprendi and Ring established that any fact legally essential to the punishment must be proven beyond a reasonable doubt to a jury. . . . Therefore, appellate counsel had a duty to raise this issue on direct appeal.
(Pena Reply Br. at 12.) However, affording Pena, a pro se petitioner, the requisite liberal construction of his § 2255 petition, in his primary brief, Pena did quote language fromBlakely to support his ineffective assistance claim. (Pena Br. at 12-13) and the Government did construe Pena's claim as one of the "failure to forecast" nature. (Gov't 2/28/05 Letter Br. at 8.) Therefore, this Court reviews Pena's claim as one contending his appellate counsel was ineffective for failing to anticipate Blakely.
Were we to construe Pena's claim as he clarified it to be,i.e., failure of appellate counsel to challenge his sentence under Apprendi, this Court would conclude that counsel was not deficient in his performance because, as discussed in Point I above, according to the governing law at the time of Pena's appeal, it was not error for the Judge to make findings of fact as to the quantity of drugs involved in the conspiracy or the other enhancements, because they did not increase Pena's sentence above the statutory maximum sentence. See United States v.Mincey, 380 F.3d 102, 105 (2d Cir. 2004) ("The appellants assert that under Blakely, contrary to the Guidelines, . . . the Constitution requires that the facts on which the district court bases sentencing enhancements be determined by a jury beyond a reasonable doubt. Before Blakely, of course, we (like our sister circuits) have consistently held otherwise.") (citing cases), vacated, 125 S. Ct. 1071 (2005).
At the time that Pena's appellate counsel filed his brief on appeal, in February 2003, a petition for certiorari in Blakely had not yet been filed with the Supreme Court. Certiorari inBlakely was filed in May 2003. Blakely v. Washington, No. 02-1632, 2003 WL 22427993 (U.S. May 5, 2003) (cert. petition). The Second Circuit affirmed Pena's conviction in August 2003. (See page 4 above.) Certiorari was granted in Blakely in October 2003. Blakely v. Washington, 540 U.S. 965, 124 S. Ct. 429 (Oct. 20, 2003).
The question therefore is whether Pena's appellate counsel was ineffective for failing to file a supplemental brief raising theBlakely issue once certiorari was filed in Blakely, while Pena's appeal was still pending before the Second Circuit. In other words, was appellate counsel ineffective for failing to anticipate not only the Supreme Court's Blakely decision, but the very granting of certiorari.
Notably, Blakely petitioned for certiorari to the Supreme Court after the state courts had affirmed his conviction and sentence. See Blakely v. Washington, 124 S. Ct. at 2536.
Generally, counsel is not ineffective for failing to forecast a change in the law. See, e.g., Fuller v. United States, 398 F.3d 644, 651 n. 4 (7th Cir. 2005) (Petitioner "does not argue that his trial counsel was ineffective for failing to anticipate Blakely . . . and Booker . . ., and object on Sixth Amendment grounds to the trial court's imposition of sentencing enhancements. Indeed, 'no such argument would be tenable.'"); Campbell v. United States, No. 02-2387, 108 Fed. Appx. 1, 5, 2004 WL 1888604 at *3 (1st Cir. Aug. 25, 2004) ("[C]ounsel's failure to anticipate Blakely would not constitute unreasonable performance under Strickland because 'First Circuit jurisprudence on [the issue of judge-determined drug quantity] ha[d] been well established. . . . Therefore, reasonable jurists could not find that [petitioner] has made a substantial showing that the Blakely issue would have been clearly stronger than the issues raised by appellate counsel."),cert. denied, 125 S. Ct. 1690 (2005); United States v.Levy, 391 F.3d 1327, 1334 n. 3 (11th Cir. 2004) (noting, "[w]hile an attorney's failure to anticipate a change in the law does not constitute ineffective assistance of counsel, attorneys routinely make arguments based on reasonable extensions of existing Supreme Court case law."), petition for cert. filed, No. 04-8942 (Mar. 1, 2005); Lach v. United States, No. 2:05CV202, 2005 WL 1019238 at *1 n. 1 (D. Utah Apr. 28, 2005) (where petitioner was sentenced after Blakely but beforeBooker, "Petitioner's ineffective assistance of counsel claim is without merit because Blakely did not apply to the Federal Guidelines at the time of Petitioner's sentencing, and therefore, his counsel's conduct was not deficient in failing to raiseBlakely."); United States v. Johnson, No. 03-20013-01, 04-3378, 04-3381, 2005 WL 839156 at *3 (D. Kan. Apr. 11, 2005) (no ineffective assistance of counsel because, "[a]t the time that [petitioner] waived his rights, the Supreme Court had not even granted certiorari in Blakely, let alone decided Blakely or Booker. As the Tenth Circuit has held, "counsel's failure to foresee future developments in the law does not constitute constitutionally deficient performance."); Muniz v. United States, 360 F. Supp. 2d 574, 579 (S.D.N.Y. 2004) ("[B]ecause counsel's performance must be judged as of the time of counsel's conduct, [petitioner's] attorney cannot be deemed ineffective for failing to anticipate a potential Sixth Amendment challenge as alleged in Booker.");United States v. Saeteurn, No. A01-0049, 2005 WL 831264 at *5 (D. Alaska Mar. 11, 2005) (no ineffective assistance where, "at the time of [petitioner's direct] appeal, Blakely had not been decided. The objective standard of reasonableness contemplated inStrickland does not include holding counsel to somehow intuiting what the law might be in the future. Furthermore, . . . the pertinent rule in effect at the time of [petitioner's] appeal was set forth in Apprendi . . .," which was not violated by petitioner's sentence.); Frost v. United States, No. Civ. 04-431, CRIM 02-37, 2005 WL 331470 at *1 (D.N.H. Feb. 11, 2005) ("Counsel's failure to anticipate Blakely v. Washington andUnited States v. Booker does not qualify as ineffective assistance of counsel."); cf. United States v. Morgan, No. 03-1316, ___ F.3d ___, 2005 WL 957186 at * ___ n. 2 and accompanying text (enforcing appeal waiver made in plea agreement despite change in law by Booker: "[Defendant's] inability to foresee that subsequently decided cases would create new appeal issues does not supply a basis for failing to enforce an appeal waiver. . . . [N]o one can know or be expected to know the future."). "In assessing the attorney's performance, a reviewing court must judge his conduct on the basis of the facts of the particular case, 'viewed as of the time of counsel's conduct,' and may not use hindsight to second-guess his strategy choices. Counsel is not required to forecast changes in the governing law." Mayo v.Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (citations omitted).
Accord, e.g., Strickland v. Washington, 466 U.S. at 689, 104 S. Ct. at 2065 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."); Sellan v. Kuhlman, 261 F.3d 303, 317 (2d Cir. 2001) ("it was reasonable for the coram nobis court not to have expected appellate counsel to predict changes in state law or to anticipate the Court of Appeals' [later] decision"); Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir.) (quoting Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir.) ("The Sixth Amendment does not require counsel to forecast changes or advances in the law. . . ."), cert. denied, 510 U.S. 852, 114 S. Ct. 154 (1993)), cert. denied, 513 U.S. 888, 115 S. Ct. 232 (1994); Walker v. Jones, 10 F.3d 1569, 1573 (11th Cir.) (rejecting petitioner's ineffective assistance of counsel claim for failure to object to a jury charge later found erroneous, where the lower courts had rejected challenges to the charge and the Supreme Court had not yet ruled on the issue),cert. denied, 511 U.S. 1111, 114 S. Ct. 2111 (1994); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at * 25 n. 40 (S.D.N.Y. May 31, 2002) (Peck, M.J.) (Petitioner's "trial counsel also was not required to forecast a true change in the law."),report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.), aff'd, 368 F.3d 179 (2d Cir. 2004);Fluellen v. Walker, 2000 WL 684275 at *12 ("Even assuming that, as [petitioner] argues, People v. Antommarchi . . . suggests that the charge in [petitioner's] case was erroneous, that case was decided nearly three years after [petitioner's] trial, and is therefore irrelevant to an assessment of trial counsel's performance."); Stanley v. Kuhlman, 10 F. Supp. 2d 250, 255 (E.D.N.Y. 1998) ("an attorney's performance must be evaluated in light of the prevailing legal practice at the time, without the benefit of hindsight"); Dixon v. Miller, 56 F. Supp. 2d 289, 299 (E.D.N.Y. 1999); Mingo v. Artuz, No. 95 CV 1087, 1999 WL 301686 at *3 (E.D.N.Y. May 5, 1999); Paulino v.United States, 97 Civ. 2107, 95 Cr. 116, 1998 WL 214877 at *5 (S.D.N.Y. Apr. 28, 1998) ("A defendant is entitled to a competent lawyer, not an omniscient one."); Stanley v. Kuhlman, 10 F. Supp. 2d 250, 255 (E.D.N.Y. 1998) ("defense counsel was not ineffective for failing to foresee" change effected by Court of Appeals decision, as it "was not widely anticipated"); Marino v. United States, 97 Civ. 1884, 89 Cr. 341, 1997 WL 714879 at *3 (S.D.N.Y. Nov. 17, 1997) ("Counsel's failure to predict a change in the law does not constitute a performance falling below objectively reasonable professional standards.").
Viewing appellate counsel's performance as of the time Pena's appeal was taken, as we must under Strickland standard, it was not unreasonable for Pena's appellate counsel to have failed to raise the Blakely claim when the rule in Apprendi did not apply to sentencing guidelines below the statutory maximum, and certiorari had not been granted in Blakely, a state sentencing guidelines case that had been decided against the defendant in the state courts. While in the interest of prudence Pena's appellate counsel could have raised the Apprendi issue, as trial counsel did, or could have filed a supplemental brief once the Blakely certiorari petition was filed, prudence is not the standard; appellate counsel's performance did not fall below that required by Strickland. Pena's ineffective assistance claim fails.
2. Appellate Counsel Was Not Ineffective for Failing to File or Notify Pena of His Right to File a Certiorari Petition with the Supreme Court
Pena claims that he was "denied his right to have a lawyer prepare and submit a petition for writ of certiorari to the United States Supreme Court." (04 Civ. 9700, Dkt. No. 2: Pena Br. at 15.) Pena also claims that after the Second Circuit affirmed his conviction, "counsel did not advise Pena that he was entitled to petition the United States Supreme Court for a writ of certiorari." (Pena Br. at 15.)
There is no federal constitutional right to counsel for a discretionary appeal, and accordingly there can be no ineffective assistance claim arising from such an appeal. See, e.g., Coleman v. Thompson, 501 U.S. 722, 756-57, 111 S. Ct. 2546, 2568 (1991) ("In Ross v. Moffitt and Pennsylvania v.Finley . . . we declined to extend the right to counsel beyond the first appeal of a criminal conviction. . . . Given that a criminal defendant has no right to counsel beyond his first appeal in pursuing state discretionary or collateral review, it would defy logic for us to hold that [petitioner] had a right to counsel to appeal a state collateral determination of his claims of trial error."); Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993 (1987) ("Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further. Thus, we have rejected suggestions that we establish a right to counsel on discretionary appeals."); Evitts v.Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35 (1985) ("This right to counsel is limited to the first appeal as of right," citing Ross v. Moffitt); Wainwright v. Torna, 455 U.S. 586, 588, 102 S. Ct. 1300, 1301 (1982) ("Since respondent had no constitutional right to counsel [for a discretionary appeal], he could not be deprived of the effective assistance of counsel by his retained counsel's failure to file the application timely.");Ross v. Moffitt, 417 U.S. 600, 610-15, 94 S. Ct. 2437, 2444-46 (1974); Bourdon v. Loughren, 386 F.3d 88, 96 (2d Cir. 2004) ("[T]he Sixth Amendment only applies to a defendant's trial and first appeal as of right, not to appeals afforded on a discretionary basis, collateral proceedings, or civil proceedings. . . ."); Digugliemo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004) ("A defendant in a criminal case has no constitutional right to counsel on a discretionary state appeal."); Chalk v. Kuhlmann, 311 F.3d 525, 528 (2d Cir. 2002) ("The Supreme Court has established that there is no constitutional right to counsel for such discretionary appeals . . . A writ of habeas corpus cannot be premised on a claim of ineffective assistance of counsel based on counsel's failure to file a timely application for leave for a discretionary appeal."), cert. denied, 540 U.S. 990, 124 S. Ct. 483 (2003).
See also, e.g., United States ex rel. Cadogan v.LaVallee, 502 F.2d 824, 827 (2d Cir. 1974); Dickens v.Filion, 02 Civ. 3450, 2002 WL 31477701 at *23-24 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D.J.); Bueno v. Walsh, 01 Civ. 8738, 2002 WL 1498004 at *15 n. 18 (S.D.N.Y. July 12, 2002) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp. 2d 347, 375-76 n. 16 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.) (citing cases); Veras v. Strack, 58 F. Supp. 2d 201, 202, 206-10 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.).
Because Pena had no constitutional right to have his case heard by the Supreme Court through a writ of certiorari, see S. Ct. Rule 10 ("Review on a writ of certiorari is not a matter of right, but of judicial discretion."), he cannot claim ineffective assistance for that failure. See, e.g., Aguirre v. United States, No. 95-2048, 100 F.3d 942 (table), 1996 WL 19110 at *2 (2d Cir.) ("A criminal defendant . . . does not have a constitutional right to counsel when pursuing a discretionary appeal on direct review of a conviction. Because [petitions for certiorari] to the Supreme Court are discretionary, [petitioner] had no constitutional right to assistance of counsel.") (citations omitted), cert. denied, 517 U.S. 1216, 116 S. Ct. 1841 (1996); Nnebe v. United States, 04 Civ. 2416, 01 Cr. 545, 2005 WL 427534 at *9 n. 2 (S.D.N.Y. Feb. 22, 2005) ("Because [petitioner] had no constitutional right to counsel in connection with the filing of a certiorari petition, he could not be deprived of the effective assistance of counsel by his attorney's failure to file such petition."); see also cases cited above.
Pena raises the additional claim that his appellate counsel failed to notify him of his right to file a petition for certiorari with the Supreme Court, and claims that had he known "he was entitled to move for certiorari, he would have advised his counsel to do so." (Pena Br. at 15 Ex. A: 11/3/04 Pena Aff. ¶ 2.) The law in this Circuit is unclear as to whether the constitutional right to counsel on direct appeal encompasses a duty on the part of the attorney to inform the client of his right to proceed pro se with a discretionary appeal. Other Circuits have indicated that this is not the case. See, e.g., Moore v. Cockrell, 313 F.3d 880, 882 (5th Cir. 2002) ("The constitutionally secured right to counsel ends when the decision by the appellate court is entered."), cert. denied, 538 U.S. 969, 123 S. Ct. 1768 (2003); Miller v. Keeney, 882 F.2d 1428, 1432 (9th Cir. 1989) (rejecting the argument that "the right to direct appellate counsel continues to exist in the period between losing a direct appeal and filing for discretionary review" because "[t]he decision whether or not to petition for certiorari in the Supreme Court presupposes that a state defendant's opportunity for direct appeal, and thus the defendant's constitutional right to counsel, has come to an end."); but see United States v. King, No. 00-7773, 11 Fed. Appx. 219, 220, 2001 WL 568022 at *2 (4th Cir. May 23, 2001) ("[I]f counsel did not advise [petitioner] of the disposition of his criminal appeal in this court and of the opportunity to seek a writ of certiorari from the Supreme Court, counsel would be ineffective under both prongs of Strickland. . . ."), cert. denied, 540 U.S. 851, 124 S. Ct. 136 (2003); Proffitt v. United States, 549 F.2d 910, 912-13 (4th Cir. 1976) (remanding "to the district court for an evidentiary hearing, if required, to determine whether [defendant] was denied ineffective assistance of counsel" because the Fourth Circuit's Plan of Implementation of the CJA, substantially similar to that of the Second Circuit set forth in n. 17 below, requires appointed counsel to inform defendants of their right to petition for a writ of certiorari following an adverse judgment of the Court of Appeals.), cert. denied, 429 U.S. 1076, 97 S. Ct. 818 (1977).
It is noteworthy that the Second Circuit's Plan to Implement the Criminal Justice Act of 1964 requires:
In the event of a decision adverse to the CJA client in this Court, the CJA attorney shall promptly transmit to the CJA client a copy of the Court's decision, advise the CJA client in writing of the right to file a petition for writ of certiorari with the United States Supreme Court, inform the CJA client of the CJA attorney's opinion as to the merit and likelihood of success in obtaining such a writ, and if requested to do so, petition the Supreme Court for certiorari. Despite a CJA client's directive to file a writ, if a CJA attorney has reasonable grounds to believe that a petition for certiorari would have no likelihood of success, the CJA attorney may file with this Court a motion to be relieved and serve a copy on the CJA client and other counsel within ten days of the filing of an adverse decision of this Court. If the Court relieves the CJA attorney, he or she shall, within 48 hours after such motion is granted, so advise the CJA client in writing and inform the CJA client concerning the procedures for filing a petition for a writ of certiorari pro se.
If an adverse party petitions for a writ of certiorari to review a judgment of this Court, the CJA attorney shall take all necessary steps to oppose the petition.
United States Court of Appeals for the Second Circuit, Appendix Part A, ¶ IX.C.
While Pena was represented by retained counsel on appeal (Pena Reply Br. at 13), criminal defendants with retained counsel enjoy the same constitutional rights as indigent defendants. Culyer v. Sullivan, 446 U.S. 335, 344-45, 100 S. Ct. 1708, 1717 (1980) ("The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant's entitlement to constitutional protection. Since the State's conduct of a criminal trial itself implicates the State in the defendant's conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.") (fns. omitted). However, a Circuit rule imposing a duty on appointed counsel does not mean that the procedure is constitutionally required, and indeed, the Second Circuit rule goes beyond the Supreme Court and Circuit case law that there can be no ineffective assistance of counsel for a discretionary appeal. See Cepulonis v. United States, 490 F. Supp. 381, 385 (E.D.N.Y. 1980) (failure to comply with CJA Plan does not necessarily make out a successful ineffective assistance claim); cf. Ross v. Moffitt, 417 U.S. at 618-19, 94 S. Ct. at 2447-48 ("We do not mean by this opinion to in any way discourage those States which have, as a matter of legislative choice, made counsel available to convicted defendants at all stages of judicial review. . . . Our reading of the Fourteenth Amendment leaves these choices to the State. . . .");Chalk v. Kuhlmann, 311 F.3d at 529 ("The fact that a state may, 'as a matter of legislative choice,' . . . provide a right to counsel for discretionary appeals subsequent to the first appeal as of right does not extend the Constitution's guarantee of counsel to such proceedings.").
Whether an attorney's failure to inform his client of the right to file a petition for a writ of certiorari constitutes deficient performance under the Strickland standard need not be decided here because Pena can not demonstrate prejudice from his lost opportunity to file a certiorari petition. See, e.g., Phillips v. United States, 97 Civ. 2571, 2001 WL 274092 at *5 (S.D.N.Y. Mar. 19, 2001) (petitioner claiming ineffective assistance of counsel because counsel, inter alia, failed to inform him of Second Circuit's decision until after deadline for filing for certiorari had passed did not demonstrate that but for counsel's alleged misconduct the result of the proceeding would have been different); Salcedo v. United States, 98 Civ. 7638, 1999 WL 335835 at *4 (S.D.N.Y. May 25, 1999) (failure of appellate counsel to inform petitioner of Second Circuit decision affirming his conviction until 5 months after the date of decision, effectively precluding him from filing for certiorari, was not ineffective assistance because petitioner "failed to show by any reasonable probability that his appeal or any petition for a writ of certiorari would have succeeded."); Cepulonis v.United States, 490 F. Supp. at 385 (petitioner who's counsel failed to inform him of the right to file for certiorari could not succeed on ineffective assistance claim because "if there were close issues of law to be decided, the Court of Appeals would have written an explanation of its affirmance. The court's decision not to do so suggests the unlikelihood of success of any petition to the Supreme Court."). In response to a request for further submission by the Court (00 Cr. 36, Dkt. No. 132: 3/25/05 Order), Pena indicated the two grounds he would have raised in a petition for certiorari:
(1) Whether a defendant has a constitutional right(s) to insist that the prosecution prove beyond a reasonable doubt to a jury all facts legally essential to the punishment.
(2) Whether a defendant's maximum sentence is established solely on the basis of the facts proved to a jury beyond a reasonable doubt and reflected in the jury verdict, or under a lesser standard of proof, whether a defendant's maximum sentence can be established based on judicial factual findings; the former protects a defendant's Fifth and Sixth amendment rights while the latter violates said rights.
(Pena Letter at 3.)
The likelihood that the Supreme Court would have granted Pena's petition for writ of certiorari is .18 percent if he filed it in forma pauperis and 3.5 percent if he was a paying petitioner.See Robert L. Stern et. al., Supreme Court Practice 221 (8th ed. 2002) (citing statistics from the 1998 term of the Supreme Court). This slim chance of his petition having been granted is further reduced by the fact that the issues Pena would have raised in a certiorari petition were not raised on Pena's direct appeal. (See page 4 above.) The Supreme Court may but "ordinarily . . . does not decide questions not raised or resolved in the lower court." Youakim v. Miller, 425 U.S. 231, 234, 96 S. Ct. 1399, 1401 (1976); see Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 212-13, 118 S. Ct. 1952, 1956 (1998) ("'Where issues are neither raised before nor considered by the Court of Appeals, this Court will not ordinarily consider them.'"); United States v. Mendenhall, 446 U.S. 544, 551-52 n. 5, 100 S. Ct. 1870, 1876 n. 5 (1980); Robert L. Stern, et al., Supreme Court Practice at 421. Given the extremely low odds that a certiorari petition would have been granted, Pena has not shown a reasonable probability that but for counsel's alleged error, the result of the proceedings would have been different. Pena's ineffective assistance of appellate counsel claim is denied.
CONCLUSION
For the reasons discussed above, Pena's § 2255 motion isDENIED. A certificate of appealability is not issued. The Clerk of Court shall enter judgment accordingly.
SO ORDERED.