Opinion
No. 01 Cr. 864 (GEL).
June 30, 2005
David M. Rody, Assistant United States Attorney, New York, New York (David N. Kelley, United States Attorney for the Southern District of New York, of counsel), for United States of America.
Carlos Humberto Ruiz, pro se.
OPINION AND ORDER
Carlos Humberto Ruiz moves pursuant to 28 U.S.C. § 2255 to vacate his conviction for conspiring to import and distribute the controlled substance methylenedioxy-methamphetamine (commonly known as "MDMA" or "ecstasy") in violation of 21 U.S.C. §§ 963 and 846, and his resulting sentence principally to imprisonment for 97 months. Ruiz was convicted by a jury after a trial at which he was shown to be the courier who accepted delivery of a shipment of more than 300,000 ecstasy pills, which had been obtained from Ruiz's associates in the Netherlands and were in turn to be delivered to a distribution ring in the United States. The sentence represents a substantial reduction from that which would otherwise have been recommended by the United States Sentencing Guidelines, based on the Court's finding, which it regarded as a close call, that Ruiz was a minor participant in the offense, and a provision in the Guidelines existing at the time of sentencing — but not at the time of his offense or as they exist now — that capped the base offense level for a narcotics defendant who received a mitigating role adjustment at level 30. See United States v. Ruiz, 246 F. Supp. 2d 263 (S.D.N.Y. 2002). Ruiz now argues that he received ineffective assistance of counsel, principally because, he alleges, his attorney took the case to trial over his own desire to accept a purported plea offer from the Government. The petition is without merit and will be denied.
Before 2002, the Sentencing Guidelines for narcotics cases keyed the base offense level (almost) entirely to the quantity of narcotics involved in the offense, with only limited adjustments for minor or minimal participation as provided for all offenses by USSG § 3B1.2. The disadvantage of this scheme was that given the nature of narcotics organizations, low-level participants in large distribution networks could receive extremely long sentences, disproportionate to their individual culpability. In 2002, the Sentencing Commission responded to that problem with an amendment capping the base offense level for a minor participant in the crime at 30, regardless of the amount of drugs involved in the conspiracy. See United States Sentencing Guidelines, Supplement to Appendix C, Amendment 640 (effective November 1, 2002). As discussed in this Court's prior opinion in this case, that amendment had the effect of creating a dramatic "cliff" in the sentencing scheme: depending on the very close call of whether someone qualified for a minor participant adjustment, the total offense level could differ by ten steps. See Ruiz, 246 F. Supp. 2d at 265-66. The Commission's most recent adjustment, adopted in 2004, mitigates this effect by creating a sliding scale reduction for minor players. See USSG § 2D1.1(a)(3).
BACKGROUND
The facts of this case are extensively set forth in the Court's prior opinion and need only be summarized here. Briefly, the combined efforts of Dutch, German and American law enforcement agencies succeeded in uncovering an organization, composed primarily of Colombian nationals, that manufactured the drug ecstasy in the Netherlands and exported it to the United States. A skilled German undercover officer convinced the key conspirators in the Netherlands that he could transport huge quantities of pills from Europe to the United States without being detected by the authorities. Ultimately, the leaders of the enterprise provided the undercover officer with more than 300,000 pills to be transported to the United States.
The conspirators instructed the officer to contact a representative of the conspiracy in New York, who would arrange for the pills to be delivered to a Florida-based organization for distribution. On September 29, 2001, upon his arrival in New York, the undercover officer contacted the mobile telephone number he had been given, and arranged to meet with the courier, who turned out to be Ruiz. What happened next cannot reasonably be disputed. The undercover team (the German officer and a DEA agent) recorded their telephone calls and their meetings with Ruiz, while the Dutch authorities, through court-authorized wiretaps on the phones of the leaders of the conspiracy in Europe, monitored Ruiz's calls to the Netherlands for instructions.
On October 1, 2001, the agents met with Ruiz and his translator. When the agents asked for payment of the $140,000 allegedly due for transporting the pills, Ruiz claimed that he had no money, knew of no payment due, and would have to check with his superiors to find out what was going on. After further negotiations, Ruiz proposed meeting the next day to take delivery and exchange any money due. The agents advised Ruiz to call Beatriz Henao, the enterprise's leader in the Netherlands, for instructions about whether and how to take delivery of the drugs and pay the undercover for his services.
As disclosed by the fruits of the Dutch wiretap, Ruiz did just that. Ruiz called Henao and reported the events of the day. Henao approved a meeting with the agents the following day. When Ruiz and his translator met with the agents on October 2, 2001, they were arrested. The leaders of the conspiracy were arrested in the Netherlands at about the same time.
During his tape-recorded meetings with the agents, Ruiz disclosed that he had been recruited for this mission about six weeks earlier in Colombia by a man named "Mike" who was his connection to the conspirators in the Netherlands. Other references in the various taped conversations show that Ruiz was aware of the people in Florida who the undercover agent had been told were to distribute the drugs, and that he was in frequent contact with Henao.
After a week-long trial, a jury convicted Ruiz on both counts on May 10, 2002, and he was sentenced on November 27, 2002, to 97 months of imprisonment, five years of supervised release, and a $200 special assessment. Ruiz appealed his conviction to the Court of Appeals for the Second Circuit, and after full briefing and argument, the Court of Appeals affirmed the conviction and sentence by summary order on March 11, 2004. United States v. Ruiz, No. 03-1244, 2004 WL 422890 (2d Cir. Mar. 11, 2004).
On March 23, 2005, Ruiz filed this petition under § 2255, arguing that he was denied the effective assistance of counsel and that he was denied his Sixth Amendment right to have the jury determine the quantity of drugs attributable to him for sentencing purposes. These arguments are devoid of merit.
DISCUSSION
I. Effective Assistance of Counsel
Ruiz argues that he was denied the effective assistance of counsel because his attorney allegedly (a) failed to communicate to him, and to advise him to accept, a favorable plea offer from the Government; (b) failed to advise him of his right to testify in his own behalf; and (c) failed to file an appeal.
To establish ineffective assistance of counsel, a petitioner must demonstrate (a) that his attorney's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (b) 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, 687-89, 693-94 (1984). Ruiz fails to meet this test.
A. The Decision to Go to Trial
Although the ultimate decision as to whether or not to accept a plea bargain belongs to the defendant, defense counsel has a responsibility to fully advise his client on the matter. See Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999),citing Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir. 1996),clarified with respect to another issue and reaff'd on reh'g, 90 F.3d 36 (2d Cir. 1996). "As part of this advice, counsel must communicate to the defendant the terms of the plea offer, and should usually inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed."Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000). Given that counsel must steer "a course between the Scylla of inadequate advice and the Charybdis of coercing a plea," a wide margin is given to counsel to determine how best to carry out his representation, id., but a complete failure to convey the terms of or otherwise advise a client about a proposed plea agreement would clearly render such representation deficient.
In the instant case, the Court finds that counsel did in fact advise Ruiz that it was in his interest to plead guilty, that Ruiz rejected that advice, and that the plea offer of which Ruiz claims he was not advised is a figment of his imagination. In an unsworn memorandum of law, Ruiz asserts that he told his appointed attorney, Martin Klotz, Esq., that he wanted to plead guilty and cooperate with the Government, but that Mr. Klotz insisted he could win at trial because the evidence was not overwhelming. (P. Mem. 11.) Ruiz claims that he would have accepted "the Government's plea agreement," but that counsel "never communicated the Government's proposed Plea Agreement to the Petitioner." (Id. 12.)
Ruiz's description of an alleged plea proposal is sheerest fantasy. Without disclosing how he learned of any such proposal, Ruiz asserts that the Government proposed a "Plea Agreement of 46 months plus 3 points for acceptance of responsibility," under which he "would have re[c]eived a sentence of 36 to 24 months." (P. Mem. 13.) These allegations lack evidentiary value or persuasive substance. To begin with, they are made under cover of a legal memorandum, and are pointedly not made under oath or penalty of perjury. Moreover, Ruiz's allegations are dubious on their face: although Ruiz asserts that counsel never advised him of any plea offer, he conjures the details of such a plea offer without hinting at the source of his information.
Ruiz's belief that a more favorable plea offer might have been available may derive from a distorted understanding of the fate of one of his co-defendants, as Ruiz claims that he advised Mr. Klotz that his "co-defendant's [ sic] were pleading guilty and [he] wanted to plead guilty also." (P. Mem. 12.) At the time of the relevant negotiations, however, only one co-conspirator was in custody in the United States. Ricardo Quintero, a fellow courier in the United States who had received an earlier, smaller shipment, pleaded guilty and was sentenced to 29 months of imprisonment. Quintero, however, was involved in a dramatically smaller shipment of pills, and there was significant evidence that Ruiz was a more important member of the conspiracy. Two other co-defendants, Victor deBoer and Virgilio Manuel, were not extradited to the United States until after Ruiz was sentenced. Neither received a favorable plea agreement: deBoer pled guilty and was sentenced to 168 months in prison after a contested evidentiary sentencing hearing, and Manuel was convicted after trial and sentenced to 63 months in prison.
Although the indictment named a number of other individuals, the piecemeal nature of the arrests and extraditions in the case meant that each defendant thus far apprehended was in effect prosecuted separately.
See Ruiz, 246 F. Supp. 2d at 267 (summarizing evidence marshaled by Government of Ruiz's participation in the conspiracy, including Ruiz's contacts with the top leadership of the conspiracy and that the undercover agent who met with Ruiz in New York was told he could expect an individual experienced in the drug trade to take delivery of the second shipment of drugs).
Both Mr. Klotz and the prosecutor, Assistant United States Attorney David Rody, contradict Ruiz's claims. In a sworn affidavit, Mr. Klotz states that he discussed the possibility of pleading guilty with Mr. Ruiz on at least two occasions. He states that he and an associate "attempted unsuccessfully over the weekend preceding . . . the trial to persuade Mr. Ruiz to plead guilty." (Klotz Aff. ¶ 3.) At an earlier point in the representation, according to Mr. Klotz, he had also discussed a possible plea. (Id.) Although Mr. Klotz cannot recall "whether or not we had a specific plea proposal from the government," he states that he had advised Ruiz that the earlier guilty plea might have led to a sentence of over 10 years, and the eve of trial plea to more time. (Id.) Ruiz, however, "rejected both possible pleas." (Id.)
The Government confirms Mr. Klotz's testimony that "[a]t no point in the proceedings did the government propose a plea on terms that would have resulted in a sentence as low as 46 months, and it is my belief that a plea would not have been available at any point in the proceedings that would have resulted in a sentence of less than 10 years." (Id.) According to the prosecutor, Mr. Rody, "the Government never made Ruiz a plea offer of anything close to 10 years, much less the alleged offer" of 46 months. (Letter of AUSA David M. Rody to the Court, dated May 23, 2005 ("Rody Letter"), at 11.)
Finally, the pre-trial record contains a strong indication that Ruiz resisted pleading guilty. Ruiz, indeed, changed lawyers because his first appointed attorney, John Curley, had strongly advised him that a guilty plea was in his interest. Ruiz had been arrested on October 2, 2001; upon arrest, he was presented before a Magistrate Judge, and Mr. Curley was appointed to represent him. On November 1, 2001, shortly after his indictment, Ruiz appeared before the Court for arraignment. Before the Court could begin the proceeding, Ruiz insisted on addressing the Court. The Court advised him that defendants generally speak in Court through their attorneys, that he was not obliged to speak, and that anything he said could be used against him later. After Mr. Curley noted that he had not expected Ruiz to address the Court, the Court offered Ruiz an opportunity to consult with counsel before deciding whether to speak, but Ruiz insisted that he wanted to address the Court. (11/1/01 Tr. 3.) Ruiz then asked the Court to appoint new counsel to replace Mr. Curley. When asked if he had had the opportunity to consult with Mr. Curley, Ruiz asserted that Mr. Curley had "always told me that I am guilty, and in fact I am," but that he believed it was the role of the Court, and not of Mr. Curley, to pass judgment on him. (Id. 5-6.) The Court declined to appoint new counsel at that time, but advised Ruiz that it would appoint a new lawyer if he continued to believe that was in his interest. (Id. 6-8.) At the next court appearance, Ruiz renewed his request for new counsel, and Mr. Klotz was appointed. At least at the outset of the case, then, it is clear from Ruiz's own mouth that he was not inclined to listen to a lawyer who told him about his exposure of up to 20 years in prison, and the possibility of a plea that could reduce that to 10 years. (Id. 5.)
Shortly before the trial, moreover, Ruiz had an opportunity to indicate whether he opposed the idea of going to trial, and instead implicitly confirmed that he favored that strategy. On April 26, 2002, at the final pre-trial conference, Mr. Klotz advised the Court that additional discovery materials had recently been produced. The Court asked whether these new disclosures would require a continuance. Mr. Klotz stated that he had "discussed this with Mr. Ruiz, and he is agreeable that what we ought to do is proceed to trial on May 6 rather than ask for an adjournment." (4/26/02 Tr. 3.) The Court then addressed Ruiz personally, "to ask you to confirm that it is correct, as Mr. Klotz said, that he discussed this with you and that you are agreeable to proceeding on May 6." Ruiz replied, "Yes. . . . I believe that my attorney is doing the best he can do, and I will go along with what he says." (Id. 5.) Ruiz thus had the perfect opportunity to state that far from wanting a trial sooner rather than later, he did not want a trial at all. Instead, he confirmed his agreement with his attorney's plan to go to trial on the scheduled date.
The accounts of Messrs. Klotz and Rody are far more credible, and consistent with the indisputable facts of record, than that of Ruiz. Ruiz, of course, is a convicted felon with a deep interest in undermining his conviction. As noted above, his allegations are unsworn and inconsistent. Mr. Klotz, a former Assistant United States Attorney and member of a distinguished law firm who volunteers his time to represent indigent defendants as a member of the Criminal Justice Act panel of this district, is an experienced criminal defense attorney who is entirely familiar with the practices of plea bargaining in this district. Both he and Mr. Rody are known to the Court as attorneys of skill and integrity. It is inconceivable to the Court that Mr. Klotz would have failed to consider and discuss with his client the possibility of pleading guilty in a case of this sort.
Moreover, under the circumstances of this case, the existence of a plea offer of 46 months, or indeed of any plea agreement more favorable to Ruiz than those Mr. Klotz says Ruiz refused to consider, is simply not credible. The Government's case against Ruiz was strong, resting on the testimony of undercover police agents who had had direct dealings with him, supplemented by both consensual recordings of those conversations and wiretap recordings of legally-intercepted conversations between Ruiz and the leaders of the conspiracy in Holland. There was thus no need for the Government to make concessions to obtain a plea.
The sentence faced by Ruiz was also extremely high. Under the mandatory guideline sentencing regime in effect at the time of Ruiz's trial and sentence, the huge quantity of the shipment of ecstasy pills, valued at more than six million dollars, would have dictated a sentencing level of 38, and therefore a sentence of 235-293 months. Although the Court ultimately found Ruiz to be a "minor participant" meriting a two-level reduction, the Government vigorously opposed that reduction. See Ruiz, 246 F. Supp. at 267-68 (summarizing arguments and evidence presented by the Government in opposition to a "minor participant" reduction). Even assuming the Government had been willing to concede this reduction in exchange for a guilty plea, at the time of Ruiz's trial, the sentencing guidelines would have allowed only a simple reduction of two levels from the base offense level of 38, which, with a further three-level reduction for acceptance of responsibility, would have produced a sentence of 135-168 months. It was only due to an intervening change in the law between Ruiz's trial and sentence that Ruiz received the more dramatic benefit of a reduction to offense level 28. There is thus no imaginable reason why the Government would have made an offer such as the one Ruiz imagines.
A further two-level reduction based on the so-called "safety valve" might have been available, but such a reduction would have been contingent upon a successful proffer to the Government. The safety valve adjustment would have brought the potential sentencing range down to 108-135 months. With or without the safety valve, these calculations support the credibility of Mr. Klotz's assertion that he had advised Ruiz that he faced imprisonment in the vicinity of 20 years if convicted at trial, and that exploring an early plea might make possible a sentence of closer to 10 years. (Klotz Aff. ¶ 3.) Based on Ruiz's statements at his arraignment (11/1/01 Tr. 5), this was apparently also the view of predecdessor counsel, Mr. Curley.
In his reply memorandum, Ruiz revises his claim, contending that Mr. Klotz's affidavit for the first time discloses that a 10-year plea offer was "tendered by the Government," and then argues that such a plea offer, had it existed, would somehow have translated into a 46-month sentence. (R. Mem. 7.) This fanciful reconstruction of events distorts the actual record, and completely misconceives the operation of the sentencing guidelines.
In the first place, neither Mr. Klotz nor Mr. Rody states that the Government ever tendered a plea agreement of any sort. Rather, Mr. Klotz states that he does not recall whether the Government made a specific plea proposal, and that Ruiz rejected the idea of seeking a plea agreement in the range of 10 years. (Klotz Aff. ¶ 3.) Mr. Rody, for his part, states that the Government " never made a plea offer of anything close to ten years." (Rody Letter 11; emphasis added.) In any case, consistent with the policies and practices of the United States Attorney for this district, a plea agreement based on a possible sentence of 10 years could only mean to a reasonable lawyer a plea agreement with stipulated guideline calculations leading to a sentencing range with a low end of 121 months. Leaving aside the fact that such a stipulation would not in any event have been binding on the Court, a stipulation of that sort would encompass all of the reductions to which the parties had agreed, and would not have been, as Ruiz purports to believe, the basis upon which the Court would then calculate further reductions.
In short, the evidence in the case decisively refutes Ruiz's unsworn claim that his attorney failed to communicate a plea offer, and leads the Court to find by much more than a preponderance of evidence that Ruiz in fact rejected his attorney's advice to enter a plea of guilty. There is thus no basis for accepting Ruiz's claim that he received ineffective assistance of counsel in connection with his decision to go to trial.
B. The Decision Not to Testify
There is slightly more ambiguity about the facts pertaining to Ruiz's second claim, that he was coerced by his attorney into remaining silent at his trial. It is clear that Ruiz's version is false. Ruiz contends that he "emphatically" told Mr. Klotz that he wanted to testify, and that Mr. Klotz "never advised [him] about his right to testify." (P. Mem. 18-19.) The notion that Ruiz did not know that a defendant in an American court has the right to testify in his own behalf is totally inconsistent both with the more credible account of his attorney and with the indisputable facts in the record.
Mr. Klotz avers that he "discussed with Mr. Ruiz the possibility of his testifying throughout the representation," and that he and his associate worked with Ruiz to prepare for his potential testimony throughout the trial. (Klotz Aff. ¶ 4.) Moreover, the record of the proceedings both before and during trial is replete with references to Ruiz's right to testify, and to the likelihood that he would. At the final pre-trial conference, Mr. Klotz stated that it was "very likely" that Ruiz would testify in his own behalf, and moved to preclude cross-examination on certain matters. (4/26/02 Tr. 6-7.) Later at the same conference, Mr. Klotz was even less equivocal, stating that "I am going to put on a case, and part of my case is going to be Mr. Ruiz's testimony." (Id. 10.) The Court and counsel then engaged in an extensive colloquy about the possible cross-examination of Ruiz, and possible rebuttal and sur-rebuttal testimony regarding statements that Ruiz either did or did not make at a proffer session with the Government during Mr. Curley's representation of Ruiz. (Id. 11-12.)
The topic of Ruiz's testimony recurred repeatedly during the trial. On several occasions, the Court inquired of Mr. Klotz whether, depending on the time at which the Government rested, he would need additional time to prepare for Ruiz's testimony. (Tr. 84, 170, 264.) It is inconceivable that Ruiz could have sat through these various discussions and not realized that he could testify in his own behalf if he wished.
What is slightly less clear is whether Ruiz was aware that the decision whether to testify was his decision, and not merely a matter of his attorney's choice of strategy. Mr. Klotz's affidavit unequivocally states that he frequently discussed with Ruiz the possibility of his testifying, and indeed that Ruiz had been thoroughly prepared for the possibility. He further avers that "[a]though I ultimately recommended against Mr. Ruiz testifying, I never told him that he was not permitted to testify even if he wanted to do so." (Klotz Aff. ¶ 4; emphasis added.) Thus, while Mr. Klotz is emphatic that he did not tell Ruiz he could not testify, and that Ruiz was aware that his testimony was an option for the defense, Mr. Klotz does not say that he advised Ruiz that it was his choice, regardless of his attorney's recommendation, whether to take the stand.
Defense counsel has an affirmative obligation to inform his client that the decision to testify belongs to the client, and this obligation is a component of effective assistance of counsel. See Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997). If, after further development of the evidentiary record, Ruiz could establish that Mr. Klotz failed to make him aware that the decision to testify was his to make, such a failure would constitute a dereliction of an attorney's "vital professional responsibility of ensuring that the defendant's right to testify is protected and that any waiver of that right is knowing and voluntary," United States v. Teague, 953 F.2d 1525, 1534 (11th Cir. 1992), and the first, "performance" prong of theStrickland test, set out above, would be met. But even assuming arguendo that this first prong could be met, it is clear that Ruiz would be unable to meet the second, "prejudice" prong. See Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.")
Ruiz's claim of prejudice rests initially on a series of unlikely contingencies. At an evidentiary hearing in this matter, the Court would have to find that Ruiz did want to testify, that he misunderstood his counsel's advice not to testify as a decision by counsel that he had no choice but to follow, and, moreover, that if counsel had informed him that the decision was his to make, he would have defied counsel's advice and taken the stand. The difficulty of persuading the Court of this alternative sequence of events alone might defeat Ruiz's petition.
More critically, assuming arguendo that the Court did find that Ruiz would have testified, in order to make any difference whatsoever in the outcome of the trial, he would have had to testify that he did not know that the deal involved illegal drugs, and he would have had to do so in a sufficiently persuasive manner so as to raise a reasonable doubt in the minds of the jurors, where none otherwise existed. This would have been impossible for Ruiz to do. First, such testimony would be utterly inconsistent with the argument presented by Ruiz in the instant petition that he was in fact guilty and would have been happy to plead guilty, but for his lawyer's insistence that he go to trial, and with the admission of guilt made by Ruiz at an initial conference in this matter. See Part I.A supra. Ruiz would not have been able to testify honestly as to his innocence.
Second, Ruiz does not even purport that he would have testified to his innocence. Rather, he asserts that he would have testified to the following: "(i) that he was only recruited; (ii) that he did not know how many pills and what they actually cost; (iii) that he was given orders to deliver the pills; (iv) that he need[ed] someone to translate because he did not know [E]nglish and needed someone to translate to carry out what he was commanded to do." (P. Mem. 19.) But this testimony goes to the level of his participation in the conspiracy, not to any lack of knowledge on his part that the shipment contained illegal drugs, and as such, would not have provided Ruiz with a defense.
Third, the Government's proof at trial that Ruiz knew this to be a drug transaction was strong, and most likely would have appeared even stronger if the jury had heard Ruiz cross-examined about the meaning of the taped conversations introduced into evidence.
Finally, had Ruiz testified, his credibility would have been subject to severe impeachment. In a post-arrest statement of October 2, 2001, Ruiz claimed he came to the United States primarily to earn enough money to pay off a $25,000 debt he owed in Colombia. Subsequently, in a proffer session on October 26, 2001, Ruiz stated again that he came to the United States to make money to pay off his debt, but added that the debt was owed to a man named "Negro" and that "Negro" or his associates had attempted to kill him when he failed to repay the money. (Gov't Opp. to D. Motions in Limine, Rody Letter Ex. B, at 1-2.) On cross-examination, it might have been difficult for Ruiz to provide a credible, non-drug related explanation for his debt or his reasons for coming to the United States. Moreover, if he offered explanations which contradicted his proffer session statements, the Government undoubtedly would have sought to introduce those statements to cast doubt on his credibility. When pressed, Ruiz may even have offered testimony of a link between his debt and the conspiracy with which he was charged, and the Government would have been permitted to inquire into and argue this link to the jury. (Id. at 4-5 (explaining Government's planned use of proffer session statements on cross-examination).) Most damaging of all, Ruiz's proffer session statements might have included an admission that Ruiz knew he was probably involved in a narcotics transaction (4/26/02 Tr. 11). Although defense counsel disputed the existence of any such admission and might have put on a rebuttal witness if the Government sought to introduce it on cross-examination (id.), it is unlikely that Ruiz's testimony as to his own innocence would have withstood this collective assault on his credibility.
In sum, Ruiz's testimony would have been dishonest in light of the arguments presented on this instant motion (if it asserted his innocence), immaterial (if, as actually proffered by Ruiz on this motion, it did not), outweighed by the Government's evidence to the contrary, and easily discredited on cross-examination. Ruiz's testimony would not have led to his acquittal; if anything, it might have hastened his conviction. Accordingly, Ruiz cannot satisfy the "prejudice" prong of the Strickland test, and his claim of ineffective assistance of counsel in connection with his right to testify must fail.
C. The Appeal
Ruiz claims that his attorney failed to pursue an appeal on his behalf. That claim is simply false, as Ruiz concedes in his reply memorandum. (R. Mem. 25.) Mr. Klotz did in fact file an appeal, and attacked the conviction on the merits, in an argument sufficiently serious to require the Government to submit a 50-page response. The Court of Appeals rejected the appeal on the merits, affirming Ruiz's conviction and sentence in a summary order.
II. Sentencing
Ruiz next argues that his sentence was unlawful because the jury did not make a finding with respect to the quantity of ecstasy he conspired to import and distribute. The argument fails as a matter of law.
The statutes under which Ruiz was convicted do not have any particular drug quantity as an element; they neither increase the maximum penalty nor provide a mandatory minimum penalty as a result of the quantity of drugs involved. Thus, the rule ofApprendi v. New Jersey, 530 U.S. 466 (2000), which had been decided before his sentencing, has no application to him. The Court's finding of drug quantity only affected the calculation of his sentencing guidelines. Ruiz argues that this effect too is unconstitutional, under United States v. Booker, 125 S. Ct. 738 (2005). But Booker does not apply retroactively to convictions which, like this one, were final before it was decided. Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005).
In any event, Ruiz's sentencing argument lacks equitable as well as legal appeal. First, there was no dispute about the drug quantity at his trial. The jury convicted him on the basis of his participation in a drug transaction which all parties agreed involved over 300,000 ecstasy pills; Ruiz disputed his knowing participation in the conspiracy, not the quantity of pills involved. Second, as is clear from the Court's sentencing opinion, the Court sentenced Ruiz on the basis of "the seriousness of Ruiz's conduct and the scope and harmfulness of the conspiracy he joined," Ruiz, 246 F. Supp. 2d at 273, at the top of the applicable sentencing range. The Court also explicitly referred to the need to sentence Ruiz at a level comparable to that of other similarly-situated drug conspirators. Id. at 272. In other words, the Court imposed the sentence that appeared to the Court then, and does now, to be appropriate to achieve the sentencing goals of punishment, protection of the public, and deterrence, in light of the characteristics of the offense and the offender, taking into account the advice of the Sentencing Commission and the need to avoid sentencing disparity, exactly as required by 18 U.S.C. § 3553(a). Even if Booker applied to his case, which it does not, his sentence would be the same. Cf. United States v. Crosby, 397 F.3d 103, 117-18 (2d Cir. 2005) (defendant who failed to preserve Sixth Amendment issue need not be re-sentenced underBooker unless his sentence would have been "nontrivially different" under the new regime).
CONCLUSION
Petitioner has shown no violation of constitutional rights in his conviction or sentence. Accordingly, the petition must be denied. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.