Opinion
06 Civ. 7161 (SAS).
November 14, 2007
Petitioner (Pro Se): Brian Raupp, Randolph, New Jersey.
For Respondent: Michael Levy, Assistant United States Attorney, New York, New York.
OPINION AND ORDER
Brian Raupp, proceeding pro se, moves to vacate, set aside, or correct his sentence pursuant to section 2255 of Title 28 of the United States Code ("section 2255"). Raupp challenges his sentence on the following grounds: (1) he did not engage in money laundering; (2) his guilty plea was not knowing and voluntary; (3) he was denied his constitutional rights under the Fifth and Sixth Amendments; (4) there was no factual basis for his plea; and (5) he was denied effective assistance of counsel. For the reasons set forth below, Raupp's motion is denied.
See Memorandum of Law in Support of Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Pet. Mem.") at 9.
I. BACKGROUND
A. The Offense Conduct
The New York Drug Enforcement Task Force, a joint operation between the Drug Enforcement Administration and the New York City Police Department, identified certain students and former students at Columbia University involved in distributing Ketamine and anabolic steroids using the Internet. "A typical transaction involved a customer first placing an order by sending an email message to one of several anonymous email accounts" used by Raupp. "The customer then received an email response confirming the sale and directing him to mail cash payment to a specified address. Upon receipt of the payment [by Raupp], the order was shipped to the customer's address."
See Presentence Report ("PSR") ¶¶ 11-37; Pet. Mem. at 3.
Pet. Mem. at 3.
Id.
The two-count Indictment charged Raupp with: (1) conspiracy to violate the narcotics laws by distributing a controlled substance in violation of section 846 of Title 21 of the United States Code; and (2) conspiracy to commit money laundering in violation of sections 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i) of Title 18 of the United States Code.
See Superseding Indictment.
B. Raupp's Plea Allocution and Sentencing
On May 25, 2005, Raupp appeared before Magistrate Judge Frank Maas and pled guilty to both counts without the benefit of a plea agreement. With respect to the first count, Raupp acknowledged the following: "[I]n May 2002 I began buying Schedule III controlled substances from a coconspirator named David Pruitt. I purchased both Ketamine and anabolic steroids with the intent to sell them for a profit. David Pruitt was my main supplier of the Schedule III controlled substances until August of 2003." With respect to Count Two, Raupp stated: "Coconspirator David Pruitt was my primary supplier. And in order to pay David Pruitt for the controlled substances he had sent to me, I would deposit cash into his personal bank account in violation of the money laundering statute." Raupp also acknowledged that some of the money he deposited into his supplier's account consisted of proceeds of earlier sales of controlled substances by Raupp.
During the proceeding, Raupp stated that he did not believe Ketamine was characterized as a narcotic, and he clarified that he was pleading guilty to conspiracy to distribute Ketamine and anabolic steroids. See Transcript of Guilty Plea ("Plea Tr."), Ex. A to Letter in Opposition to the Motion by Petitioner Raupp, Pursuant to 2255, to Vacate, Set Aside, or Correct His Sentence ("Gov't Let."), at 10.
Id. at 15.
Id. at 16-17.
See id. at 18.
I accepted Raupp's guilty plea on June 13, 2004. At the sentencing, which was held on October 18, 2005, I calculated the sentencing guideline range to be 33 to 41 months in custody. This range was based, inter alia, on at least two thousand vials of Ketamine, which corresponds to forty thousand units of Ketamine. I rejected Raupp's claim that in determining what constitutes a unit of Ketamine for purposes of calculating the appropriate offense level under the Guidelines, the inquiry should not focus on the liquid Ketamine solution that Raupp actually sold but rather on the quantity of powdered Ketamine that would remain if the liquid were evaporated. I sentenced Raupp to thirty-three months of imprisonment on each count, to run concurrently, to be followed by two years of concurrent supervised release. Raupp did not file a direct appeal.
See Transcript of Sentencing ("Sent. Tr."), Ex. B to Gov't Let., at 26.
See id. at 25.
See id. at 23.
See id. at 33.
C. Jurisdiction
"In order to invoke habeas corpus review by a federal court, the petitioner must satisfy the jurisdictional 'in custody' requirement of 28 U.S.C. § 2255." Raupp filed his 2255 petition on September 19, 2006 while he was still imprisoned. He has since completed his prison term and is currently serving his two-year term of supervised release. However, imprisonment is not necessary to meet the "in custody" requirement. The Second Circuit has made it clear that a petitioner under supervised release satisfies the "in custody" requirement for purposes of the habeas corpus statute.
Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994) (citing United States v. Brilliant, 274 F.2d 618, 620 (2d Cir. 1960)).
See http://www.bop.gov/iloc2/LocateInmate.jsp (indicating that Raupp was released from prison on February 12, 2007).
See, e.g., Jones v. Cunningham, 371 U.S. 236, 241-43 (1963) (holding that a prisoner on parole remains "in custody").
See Scanio, 37 F.3d at 860.
II. APPLICABLE LAW
A. Section 2255
Section 2255 allows a convicted person 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 a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 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.'"
See 28 U.S.C. § 2255.
Cuoco v. United States, 208 F.3d 27, 29 (2d Cir. 2000) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
B. Procedural Default
It is well-settled that federal prisoners may not employ section 2255 as a substitute for direct appeal. As the Supreme Court explained in United States v. Frady, "[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." "Where 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.'"
See, e.g., United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Addonizio, 442 U.S. 178, 184-85 (1979).
Frady, 456 U.S. at 164.
Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted). Accord Massaro v. United States, 538 U.S. 500, 504 (2003) ("Claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice."); United States v. Warren, 335 F.3d 76, 79 (2d Cir. 2003) ("If the defendant fails to raise a claim of error on direct appeal, habeas relief is generally available only upon a showing of cause and prejudice.").
The Supreme Court has made clear that "cause" is measured by a stringent standard of diligence. "[T]he question of cause for a procedural default does not turn on whether counsel erred or on the kind of error counsel may have made." Instead, a petitioner must show that "some objective factor external to the defense" prevented him from raising the issues on appeal. Such objective impediments include (1) "that the factual or legal basis for a claim was not reasonably available to counsel," (2) "some interference by officials," and (3) "ineffective assistance of counsel." Furthermore, "the resulting prejudice must create an ' actual and substantial disadvantage, infecting [the petitioner's] entire trial with error of constitutional dimensions.'"
See, e.g., Coleman v. Thompson, 501 U.S. 722, 753 (1991) ("cause" is "something external to the petitioner" that "cannot be fairly attributed to him" — "[a]ttorney ignorance or inadvertence is not 'cause'") (emphasis in original); Murray v. Carrier, 477 U.S. 478, 488 (1986) ("[C]ause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.").
Murray, 477 U.S. at 488.
Id.
Id. (citations omitted).
Narvaez v. United States, No. 95 CR 941, 2003 WL 21749638, at *2 (S.D.N.Y. July 29, 2003) (quoting Frady, 456 U.S. at 170) (emphasis in original).
If a defendant fails to establish "cause" and "prejudice" to excuse a procedural default, he can obtain collateral review of his constitutional claim only by demonstrating that the constitutional error "has probably resulted in the conviction of one who is actually innocent." The Supreme Court has emphasized that "'actual innocence' means factual innocence, not mere legal insufficiency."
Bousley, 523 U.S. at 623 (quotation marks and citation omitted).
Id.
C. Ineffective Assistance of Counsel
A petitioner seeking to attack his sentence based on ineffective assistance of counsel must: (1) show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) "affirmatively prove prejudice," namely, demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 688, 693-94 (1984).
In analyzing a claim that counsel's performance fell short of constitutional standards, "it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument." Instead, the court "must 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . .'" As explained by the Supreme Court,
Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001).
Id. (quoting Strickland, 466 U.S. at 689).
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.
Strickland, 466 U.S. at 690-91.
Moreover, "[i]n 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." Thus, a petitioner cannot prevail on a claim of ineffective assistance merely because he disagrees with his counsel's strategy.
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 690).
See Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (explaining that an indigent appellant does not have a constitutional right to compel appointed counsel to press every nonfrivolous point on appeal thus recognizing "the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review"); Mayo, 13 F.3d at 533 ("[I]t is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made.").
A habeas 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." However, "[t]he failure to include a meritless argument does not fall outside the wide range of professionally competent assistance to which [a] [p]etitioner [i]s entitled." Finally, even if an attorney's performance were objectively unreasonable and unprofessional, a petitioner must still prove prejudice. That is, the petitioner must show "'a reasonable probability' that, but for the deficiency, 'the result of the proceeding would have been different.'"
Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000).
Aparicio, 269 F.3d at 99 (quotation marks and citations omitted).
Id. at 95 (quoting Strickland, 466 U.S. at 694).
III. DISCUSSION
A. Procedural Bar
Raupp's first four claims should have been raised on direct appeal, and he has failed to show cause for not doing so. Raupp acknowledges that he consulted with his attorney about filing a direct appeal, but states that his counsel "dissuaded" him from appealing and cautioned him that he could receive a higher sentence on remand. Such attorney advice hardly satisfies the cause requirement for overcoming the procedural bar. Raupp has not shown any external factors that prevented him from filing a direct appeal. The factual and legal bases for his claims were reasonably available and there was no interference by officials that prevented a direct appeal. Moreover, as will be discussed in the following section, Raupp's ineffective assistance of counsel claim is without merit. Accordingly, Raupp has not established cause for his procedural default.
See Pet. Mem. at 8.
As Raupp has not established cause, I need not reach the question of whether he can show prejudice. See Green v. Walsh, No. 03 Civ. 00908, 2006 WL 2389306, at *15 (S.D.N.Y. Aug. 17, 2006) (citing Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985)).
Having failed to show cause, Raupp could still overcome the procedural bar if he could show that he is actually innocent. "To establish actual innocence, petitioner must demonstrate that, 'in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.'" Raupp admits that he is guilty of conspiracy to distribute Ketamine and anabolic steroids. He is only challenging his guilt under the money laundering count. The gravamen of Raupp's section 2255 motion is that "he was condemned . . . for a serious money laundering offense when his criminal conduct was nothing more than a violation of the federal controlled substances laws." However, during his plea, Raupp admitted that he deposited cash into his supplier's bank account and that some of the money he deposited into that account to purchase controlled substances consisted of the proceeds of his earlier sales of controlled substances. Raupp does not challenge these facts in his section 2255 motion but instead claims that this conduct does not constitute money laundering. Raupp is wrong. His conduct does constitute money laundering. Raupp conducted financial transactions with money he knew came from completed unlawful activity with the intent to promote the carrying on of specified unlawful activity. Furthermore, he knew that the transactions were designed, in whole or in part, to conceal or disguise the nature and the source of the proceeds of the unlawful activity. Thus, his actions satisfy all of the elements of money laundering. Consequently, Raupp has neither established the "cause and prejudice" requirement, nor has he established actual innocence, in order to overcome the procedural default. Accordingly, Raupp's first four claims are procedurally barred and must be dismissed.
Bousley, 523 U.S. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995) (quotations and citation omitted)).
See Pet. Mem. at 5.
Id. at 43.
See Plea Tr. at 16-18.
See 18 USC 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i).
B. Ineffective Assistance of Counsel
Ineffective assistance of counsel claims do not have to be raised on direct appeal. Raupp asserts that his counsel "performed deficiently and caused actual prejudice in the following five ways: (1) failing to submit a motion to suppress evidence obtained through unlawful search and seizure; (2) advising Petitioner to plead guilty when the Second Count did not charge an offense; (3) failing to move for a factual hearing prior to sentencing; (4) failing to submit a motion for a downward departure; and (5) advising Petitioner not to file a direct appeal."
See Massaro, 538 U.S. at 504 (holding that "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal").
Pet. Mem. at 27.
1. Motion to Suppress
Raupp claims that his attorney acted deficiently by not moving to suppress evidence obtained by the Government through warrantless searches of Raupp's apartment in California and the home of Raupp's parents in New Jersey. Raupp contends that federal agents disregarded his stated refusal and obtained entry to his apartment in California through the consent of a roommate. In the apartment, the agents seized, inter alia, Raupp's cellular phone and his roommate's computer. At the parent's home, the officers seized Raupp's computer. Raupp asserts that the Government used his cellular phone to gather additional evidence and that the e-mail messages extracted from his computer were needed "to prove at least a portion of the 2,000 vials."
See id. at 30-31.
See id. at 4.
See id.
See id.
Id. at 4-5, 31.
Even if the evidence seized had been suppressed, the outcome would not have been different for the following reasons. Raupp does not deny that the Government already had significant evidence that he was dealing Ketamine, and he admits that agents seized "a couple of hundred vials as part of their sting operation." Moreover, the police had kept Raupp under surveillance before the arrest and had gathered significant evidence through a confidential informant and an undercover officer who had been buying Ketamine from Raupp. Furthermore, Raupp's primary supplier was cooperating with the Government and would have provided evidence that the conspiracy involved more than two thousand vials of Ketamine. Considering all of this other evidence, obtained independently from Raupp's computer and cellular phone, it was reasonable for his attorney not to move suppress the e-mail evidence. It certainly does not satisfy Strickland's first prong, which requires petitioner to show that counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms." Moreover, Raupp has failed to establish prejudice as required by the second prong of Strickland. He has not shown a reasonable probability that the Court's conclusion that the conspiracy involved more than two thousand vials of Ketamine would have been any different had a suppression motion been granted. Consequently, Raupp has failed to establish ineffective assistance of counsel on this issue.
Id.
See PSR ¶¶ 16-37.
See Gov't Let. at 4, 6.
Strickland, 466 U.S. at 688.
2. Advice to Plead Guilty
Raupp asserts three separate reasons why his counsel's advice to plead guilty to the money laundering conspiracy charged in Count Two constitutes ineffective assistance of counsel. Raupp first claims that he was innocent of the money laundering offense because the financial transactions on which the charge purportedly rested "did not involve proceeds of prior, completed criminal activity." Raupp asserts that he was improperly charged with money laundering because the charge was based solely on his receipt of money from his Ketamine customers.
Pet. Mem. at 33 (emphasis in original).
See, e.g., id. at 5-6 ("Petitioner was apprehensive about pleading guilty to the Second Count because he did not understand how a mere drug transaction that generates illicit proceeds could simultaneously also be a money laundering transaction conducted with those very same illicit proceeds.").
During his guilty plea allocution, Raupp specifically acknowledged that some of the money he deposited into his supplier's bank account to purchase controlled substances consisted of the proceeds of his earlier sales of controlled substances. Thus, there is no merit to Raupp's assertion that "he did not violate the federal money laundering statute because the financial transactions he admitted conducting were nothing more than the underlying offense and therefore did not involve proceeds of completed specified unlawful activity." To the contrary, Raupp acknowledged in his plea that he was guilty of money laundering because he took money he had received from completed drug deals and deposited some of it into his supplier's bank account in order to purchase additional drugs. Consequently, Raupp's argument that his attorney should have advised him not to plead guilty to the money laundering charge because he was "actually innocent" is meritless.
See Plea Tr. at 18.
Pet. Mem. at 43.
Id. at 33.
Raupp also claims that Count Two was deficient because the charging language deviated slightly from the language of the money laundering statute with respect to the required mens rea for one of the objects of the money laundering conspiracy. While the statute that defined the first object of the money laundering conspiracy requires the Government to show that the defendant conspired to conduct a financial transaction "with the intent to promote the carrying on of specified unlawful activity," Count Two charged that Raupp conspired to conduct a financial transaction "knowing that funds were intended in whole and in part to promote the carrying on of that specified unlawful activity."
See id. at 18-19, 33.
Superseding Indictment ¶ 6.
This difference appears only in Count Two's definition of the object of the conspiracy. It has long been established that "in an indictment for conspiring to commit an offense — in which the conspiracy is the gist of the crime — it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy." Based on this well-established principle, the Second Circuit has found, within the specific context of a conspiracy to commit money laundering, that an indictment passes muster even where the language defining the object of the money laundering conspiracy improperly defines the requisite intent. Because the lack of precision in the definition of the object of the conspiracy charged in Count Two did not undermine the validity of the charge, counsel's advice to plead guilty cannot be deemed ineffective.
Wong Tai v. United States, 273 U.S. 77, 81 (1927). Accord United States v. LaSpina, 299 F.3d 165, 177 (2d Cir. 2002).
See United States v. Wydermyer, 51 F.3d 319, 323-26 (2d Cir. 1995).
Finally, Raupp claims that Count Two should have been dismissed because it charged that the laundered funds were "proceeds of specified unlawful activity, to wit, narcotics trafficking," when, in fact, Ketamine is not considered a "narcotic" under the United States Code. However, Raupp acknowledges that Ketamine is a controlled substance and that trafficking in a controlled substance is "specified unlawful activity" for the purposes of the money laundering statute.
Superseding Indictment ¶ 6.
Pet. Mem. at 22-23, 32.
Id. at 22-23.
Raupp's semantic argument had been rejected by the Second Circuit. In United States v. Ansaldi, the court held that where the indictment clearly described the defendants as having trafficked in GBL — which, like Ketamine, is a non-narcotic controlled substance — the use of the term "narcotics trafficking" in the money laundering count "unambiguously — if inelegantly — referred to the sale of GBL." Although trafficking in GBL did not constitute "narcotics trafficking" under the statutory definition of that term, the Second Circuit held that the indictment employed "the broader, colloquial meaning of the word — trading in an illicit pharmaceutical." As the court observed, "[t]here is no obligation to read statutory definitions into every word of an indictment, particularly when the indictment as a whole makes clear that a different meaning is intended."
372 F.3d 118, 127 (2d Cir. 2004).
Id.
Id.
As in Ansaldi, it is clear from reading the whole indictment that Count Two's reference to "narcotics trafficking" was a reference to trafficking in Ketamine. Accordingly, because Count Two could not have been dismissed on this ground, counsel's advice that Raupp plead guilty to the money laundering charge was not unreasonable. Hence, counsel's representation of Raupp, including his advice that Raupp plead guilty, was not ineffective.
3. Failure to Request a Sentencing Hearing
Raupp asserts that his attorney should have requested an evidentiary hearing prior to sentencing to determine the quantity of Ketamine involved in the conspiracy. As explained previously, however, the Government had ample evidence that the conspiracy involved over two thousand vials. A baseless denial of the scope of the conspiracy by Raupp could have resulted in the forfeiture of acceptance of responsibility. Accordingly, counsel's decision not to request a sentencing hearing was reasonable. Considering all of the evidence showing that the conspiracy involved over two thousand vials of Ketamine, Raupp has failed to establish that an evidentiary hearing would have caused the Court to conclude that the conspiracy involved a lesser amount of Ketamine. Thus, Raupp has not shown prejudice.
See Pet. Mem. at 35.
See U.S.S.G. § 3E1.1 n. 1(a) ("[A] defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.").
4. Downward Departure
Raupp claims that his attorney was constitutionally ineffective because "he did not submit a motion in support of a downward departure." Raupp offers the following bases which, in his view, support the downward departure motion that arguably should have been made by his attorney. First, Raupp argues that his counsel should have moved for a departure on the ground that the Guidelines unfairly impose harsher sentences for the distribution of liquid Ketamine than for identical amounts of other Schedule III controlled substances in liquid form, such as anabolic steroids. However, the purpose of the Guidelines' Drug Quantity Table is to draw distinctions among various controlled substances. Moreover, the Second Circuit has held that a district court may not give a non-Guidelines sentence simply because it disagrees with the policy behind particular drug disparities. Thus, Raupp's argument that there is no rational reason for the different treatment between liquid Ketamine and liquid anabolic steroids was not a basis for a lower sentence. Thus, his attorney's decision not to move for a downward departure on this basis was reasonable.
Pet. Mem. at 36.
See id. at 36-40.
See id. at 37.
See U.S.S.G § 2D1.1(c).
See, e.g., United States v. Castillo, 460 F.3d 337, 361 (2d Cir. 2006) (regarding the disparity between crack cocaine and powder cocaine, the Second Circuit held that "district courts may give non-Guidelines sentences only because of case-specific applications of the § 3553(a) factors, not based on policy disagreements with the disparity that the Guidelines for crack and powder cocaine create").
Second, Raupp asserts that his attorney should have moved for a downward departure on the ground that calculating Raupp's offense level based on the quantity of liquid Ketamine involved in the conspiracy — rather than on the lesser quantity of pure, powdered Ketamine that would remain from that solution if the liquid were evaporated — created "an unwarranted sentencing disparity between defendants who sell Ketamine in liquid form and defendants who sell Ketamine in its pure form." But Raupp's attorney made this argument. After I ruled against Raupp's legal argument that only the powdered weight should be used in calculating the Guidelines sentence, Raupp's attorney requested a sentence of timeserved and asked the Court to consider that "the real world use" of Ketamine, in most cases, did not include the water contained in the vials. Moreover, Raupp raised the issue himself. Addressing the Court, he stated that although "some of the vials were seized in liquid form, that's not how they were distributed," and he went on to assert that "it seems to me that I'm being punished for water that was removed before the drug was distributed." Because this issue was raised at his sentence, Raupp's claim of ineffective assistance of counsel with regard to this issue must fail.
Pet. Mem. at 38.
Sent. Tr. at 27-28.
Id. at 29.
Finally, Raupp states that his attorney should have moved for a downward departure on the basis that the conviction for money laundering was outside the heartland of the money laundering Guideline because "the purported money laundering was really just the underlying crime." Raupp's counsel sought a sentence of time served. Thus, in effect, he urged the Court to depart from the Guidelines because his client's conduct fell outside the heartland of the Guidelines promulgated for such offenses. Consequently, counsel's representation with respect to the sentence was not ineffective.
Pet. Mem. at 39.
5. Not Filing a Direct Appeal
Raupp claims that he was dissuaded from filing a direct appeal based on his counsel's advice that his sentence could increase if the case were successfully appealed and remanded. As discussed above, this advice was reasonable given that any challenge to the Court's factual finding that the conspiracy involved at least two thousand vials of liquid Ketamine could have resulted in the denial of credit for acceptance of responsibility and a consequently higher sentence. Thus, Raupp has failed to show that his attorney's advice "fell below an objective standard of reasonableness" under the first prong of the Strickland test. Moreover, Raupp has failed to show prejudice by failing to identify any issue that would have had a reasonable probability of success on appeal. I have found the claims raised in Raupp's section 2255 motion to be totally devoid of merit. It is highly unlikely that if these claims were raised on direct appeal, the Second Circuit would have found otherwise. Accordingly, Raupp has failed to prove ineffective assistance of counsel with regard to his direct appeal claim.
See id. at 40.
Strickland, 466 U.S. at 688.
IV. CONCLUSION
For the foregoing reasons, Raupp's section 2255 motion is denied and his case is dismissed. The remaining question is whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." A substantial showing does not require a petitioner to demonstrate that he would prevail on the merits, but merely that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Petitioner has made no such showing in this case. Accordingly, I decline to issue a certificate of appealability. The Clerk of the Court is directed to close this case.
Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation omitted)).
SO ORDERED: