Opinion
01 Civ. 6190 (JSM) [99 Cr. 478 (JSM)]
April 2, 2002
MEMORANDUM OPINION AND ORDER
Oscar Colon, who pleaded guilty to conspiracy to violate the narcotics laws, now petitions under 28 U.S.C. § 2255 for an order vacating that portion of the Court's judgment which placed him on supervised release for life. He claims that the imposition of this term of supervised release was invalid under Apprendi v. New Jersey, 530 U.S. 466 (2000), and that his counsel was ineffective in not raising this issue on appeal.
Petitioner's claim is frivolous. First, the sentence did not involve an increase of the term of supervised release above a statutory maximum. 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) (citing United States v. Garcia, 240 F.3d 180, 183-84 (2d Cir. 2001)).
In the plea agreement, which Petitioner acknowledged reading during his plea allocution, he was advised that the statute governing the offense to which he was pleading guilty provided for a possible lifetime term of supervised release. He was also advised of this provision at the time of his plea, and was told that the Court had the power to depart above the applicable Guidelines range, and that, in certain circumstances, the Court could impose a sentence greater than that called for in the Guidelines. Before sentence was actually imposed, the Court advised the defendant and his counsel that the Court was considering an upward departure to a lifetime term of supervised release. Since this was part of an overall sentence that departed down to 60 months imprisonment from a Guidelines range of 108-135 months, neither Petitioner nor his counsel objected.
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) that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (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. at 694, 104 S.Ct. at 2068.
Although Petitioner faults his counsel for failing to appeal, he acknowledged during his plea allocution that pursuant to his plea agreement he was waiving any right to appeal if the Court imposed a sentence within or below the Guidelines range set forth in the plea agreement. Since the Court imposed a sentence below the Guidelines range set forth in the plea agreement, there was no basis for an appeal.
In any event, counsel's decision not to file a notice of appeal would not entitle Petitioner to relief since there was no meritorious claim that could have been raised on appeal. See Morales v. United States, 143 F.3d 94, 97 (2d Cir. 1998) ("Strickland analysis offers an adequate means for assessing the impact of counsel's failure to file an appeal . . . . A reviewing court is able to gauge both whether the lawyer's conduct was objectively unreasonable and whether an appeal would have had a reasonable likelihood of success.").
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2255 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915 (a), the Court certifies that 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.
SO ORDERED.