Memorandum and ORDER

REENA RAGGI, United States District Judge

In papers originally styled as a motion for a writ of error coram nobis, Juan Davila-Bajana, proceeding pro se, moves this court to vacate his 1991 conviction for conspiracy to distribute in excess of five grams of cocaine base or to resentence him. See United States v. Reyes, 90 CR 929 (RR). Davila Bajana is presently incarcerated serving consecutive sentences of three years for violating his supervised release in Reyes and twenty years for conspiring to distribute powder cocaine, United States v. Davila-Bajana, 96 CR 985 (RR). In his pending motion, Davila-Bajana challenges the Reyes conviction on the grounds that (1) he was denied his right to direct appeal; (2) counsel's failure to file a notice of appeal constituted constitutionally ineffective representation; and (3) his sentence violates due process principles recognized in Apprendi v. New Jersey, 530 U.S. 466 (2000). In a preliminary response to the motion, the United States submits that coram nobis is not the proper vehicle to pursue the relief demanded. Otherwise, it requests more time to address the merits of petitioner's claims. Having carefully reviewed the submissions of the parties, as well as the record of proceedings in Davila-Bajana' s two criminal cases before this court, see also United States v. Davila-Bajana, 96 CR 985 (RR), the court finds that no further response is necessary. The motion, whether seeking coram nobis or § 2255 relief, is both procedurally barred and without merit.

Factual Background

In December 1990, Juan Davila-Bajana, then using the name "Andres Reyes," pleaded guilty before this court to one count of conspiracy to distribute in excess of five grams of cocaine base. In fact, agents had seized approximately 55 grams net weight of cocaine base that was attributable to Davila-Bajana. This drug quantity, coupled with petitioner's significant criminal history, which included a 1980 New York State conviction for selling kilogram quantities of powder cocaine, yielded a guideline sentencing range of 151-188 months in prison. The court did not, however, sentence Davila-Bajana within this range. Instead, on May 10, 1991, it imposed a reduced sentence of 60 months' incarceration in recognition of petitioner's significant assistance to the prosecution, see U.S.S.G. § 5K1.1, and his difficult family circumstances. Mindful however that petitioner presented a serious risk of recidivism, the court imposed a 240-month term of supervised release. Davila-Bajana did not appeal his conviction.

In October 1996, only a year and a half into his term of supervision, Davila-Bajana was again arrested by federal authorities, this time for negotiating the sale of 15 kilograms of cocaine. Once again, petitioner offered to trade information for leniency, and entered into a plea agreement with the United States Attorney's office providing for him to plead guilty to conspiring to distribute an unspecified quantity of powder cocaine and to violating supervised release in his earlier case. In the course of debriefings by federal agents, Davila-Bajana acknowledged that between his March 1995 release from prison and his October 1996 arrest, he had distributed over 400 kilograms of cocaine.

Not surprisingly given the scope of his own criminal activity, Davila-Bajana was able to provide some assistance to federal authorities in the prosecution of various confederates. Nevertheless, Eastern District prosecutors ultimately refused to move for a downward departure in petitioner's sentence, see U.S.S.G. § 5K1.1, when an investigation by their Southern District colleagues revealed that petitioner was contemporaneously selling drugs to inmates at the Metropolitan Correction Center. Thus, Davila-Bajana stood before the court at sentence with a total offense level of 37, a criminal history category of VI, and a guideline sentencing range of 360-months-to-life imprisonment. The court, however, could only impose the twenty-year maximum prescribed in the statute of conviction. See 21 U.S.C. § 841(b)(1)(C), 846. It did, however, also impose a consecutive three-year sentence for petitioner's violation of his supervised release in the Reyes case.

Davila-Bajana appealed both his 1996 conviction and the revocation of his supervised release on the grounds of judicial bias. The argument was rejected and both judgments were summarily affirmed. See United States v. Davila-Bajana, 172 F.3d 38 (table), 1998 WL 964193 (2d Cir. Feb. 1, 1998).

On August 5, 1999, Davila-Bajana collaterally challenged his 1996 conviction pursuant to 28 U.S.C. § 2255 on the grounds that he had been denied effective assistance of counsel at sentencing. After an evidentiary hearing, the court found the claim to be without merit. See United States v. Davila-Bajana, 99 CV 4645 (RR) (E.D.N.Y. Jan. 24, 2000). The Court of Appeals denied petitioner's motion for a certificate of appealability. See United States v. Davila Bajana, No. 00-2141 (2d Cir. June 7, 2000).

On October 18, 2001, Davila-Bajana filed his pending motion for coram nobis relief. By order dated November 8, 2001, this court ruled that, as an incarcerated prisoner, Davila-Bajana could not petition for coram nobis relief. See Davila-Bajana v. United States, 01 CV 7329 (RR). Finding that 28 U.S.C. § 2255 provided the proper means for petitioner's challenge, the court transferred his case to the Second Circuit pursuant to Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996) (per curiam) to allow that court to decide whether Davila Bajana should be permitted to file a second motion for habeas corpus relief pursuant to that statute.

The Court of Appeals denied Davila-Bajana' s motion for leave to file a successive petition, finding the application unnecessary since petitioner had not yet raised a § 2255 challenge to his conviction in docket number 90 CR 929. See Davila-Bajana v. United States, No. 01-3841 (2d Cir. Feb. 8, 2002). Upon notification of this ruling, this court ordered the United States to respond to the merits of the original petition.

Discussion

I. Coram Nobis Relief

In opposing Davila-Bajana's collateral challenge to his 1990 conviction, the United States asserts that coram nobis is not the proper vehicle for an incarcerated prisoner to attack a conviction. This court had already ruled to that effect in its November 9, 2001 order. Although federal courts may grant coram nobis relief pursuant to the All Writs Act see 28 U.S.C. § 1651(a); United States v. Morgan, 346 U.S. 502, 505-07 (1954), this particular common law writ is generally available only to persons who are no longer in custody and therefore unable to pursue habeas corpus relief see Fleming v. United States, 146 F.3d 88, 89-90 (2d Cir. 1998) (holding that coram nobis "is essentially a remedy of last resort for petitioners who are no longer in custody pursuant to a criminal conviction"). That is not Davila-Bajana's case. Although he has completed the original sixty-month sentence imposed in the Reyes case, he is presently incarcerated as a result of consecutive sentences imposed both for violating his supervised release in Reyes and for his 1996 conviction. A prisoner in custody on a violation of supervised release can challenge his original conviction pursuant to § 2255. See Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994) (concluding that § 2255 petitioner under supervised release is "in custody" for purposes of habeas statute). Moreover, the Supreme Court has clearly held that a prisoner serving consecutive sentences is in custody under either one for purposes of habeas review. See Garlotte v. Fordice, 515 U.S. 39, 45-46 (1995) (citing Peyton v. Rowe, 391 U.S. 54, 67 (1968)).

The Supreme Court has further ruled that the All Writs Act cannot be invoked to supplant a statute that specifically addresses a particular issue. See Carlisle v. United States, 517 U.S. 416, 429 (1996) (rejecting the use of coram nobis to circumvent Fed.R.Crim.P. 29). Thus, where § 2255 relief is adequate and effective to address a collateral challenge to a federal conviction, a prisoner cannot move instead for coram nobis relief. See United States v. Barrett, 178 F.3d 34, 55-56 (1st Cir. 1999) (and cases cited therein). In Triestman v. United States, 124 F.3d 361, 376 (2d Cir. 1997), the Second Circuit ruled that § 2255 is not inadequate or ineffective merely because petitioner's claim is procedurally barred from review under that statute. The Court did suggest that coram nobis might be available to avoid serious constitutional challenges to the procedural limitations of § 2255 and § 2241, as for example, to allow an otherwise procedurally barred claim of actual innocence to be heard. Id. at 380 n. 24. Davila-Bajana, however, has failed to come forward with any evidence to support a claim of actual innocence.

In sum, this court adheres to its original ruling that petitioner cannot move for coram nobis relief.

II. Section 2255 Relief

A liberal reading of Davila-Bajana's papers in light of this court's November 8, 2001 ruling and the Circuit remand suggests that he is now seeking collateral review under § 2255 rather than through a writ of coram nobis. Such a claim, however, must be dismissed as untimely.

Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 100 Stat. 1214, 1220 (1996), amended 28 U.S.C. § 2255 to require a motion for habeas corpus relief under that section be filed no later than one year after

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

Focusing first on subpart (1), the court notes that AEDPA does not specifically indicate how its time requirements should apply to cases such as this one where a criminal judgment became final before the statute's enactment. The Second Circuit, however, has ruled that petitioners in such circumstances should be oven a one-year grace period from the statute's effective date, i.e., until April 24, 1997, to file for relief under § 2255 or § 2254. See Mickens v. United States, 148 F.3d 145, 146 (2d Cir. 1998); Joseph v. McGinnis, 150 F.3d 103 (2d Cir. 1998); Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998). Davila-Bajana's collateral challenge to his conviction, dated October 18, 2001, is more than four years past the April 24, 1997 conclusion of this grace period. Under subpart (1), his petition must plainly be dismissed as untimely.

Since nothing in the record before this court suggests that Davila-Bajana was prevented from filing a timely petition by any unconstitutional governmental action, subpart (2) is inapplicable.

Similarly unhelpful to petitioner is subpart (3). Although Davila-Bajana invokes the relatively recent Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, to support his petition, a serious question exists as to whether that decision is retroactively applicable on collateral review. See, e.g., Herrera v. United States, 169 F. Supp.2d 92, 98 (E.D.N.Y. 2001) (and cases cited therein). Even if Apprendi were applied retroactively, however, Davila-Bajana could not avoid dismissal of his petition. Apprendi was decided on June 26, 2000. Under subpart (c), petitioner would have had to have filed for relief no later than June 26, 2001 to satisfy AEDPA. Thus, his October 18, 2001 filing must be dismissed because he filed it four months beyond the limitations period.

Finally, since the facts supporting Davila-Bajana's claim were certainly known to him long before October 18, 2000, subpart (4) cannot rescue his petition. Davila-Bajana's § 2255 challenge to his 1991 conviction in Reyes must be dismissed as untimely.

III. The Merits

Assuming Davila-Bajana could clear the procedural obstacles to pursuing either § 2255 or coram nobis relief, his claims would still have to be denied as without merit.

Petitioner first asserts that "it is self evident" that he was "deprived of the constitutional right to file a direct appeal." See Motion for a Writ of Coram Nobis at 4. In fact, this conclusory assertion is belied by the May 10, 1992 sentencing minutes in the Reyes case. At page 26, those minutes report that the court expressly advised Davila-Bajana of his right to appeal.

Petitioner next complains that his attorney was constitutionally ineffective in ignoring his request to file a notice of appeal. This Sixth Amendment claim is subject to the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), which provides that a petitioner must show both (1) that counsel's omission was objectively unreasonable, and (2) that, as a result of the omission, his case was prejudiced. See Roe v. Flores Ortega, 528 U.S. 470, 476-77 (2000) (Strickland test applies to claims of ineffective assistance based on counsel's failure to file notice of appeal). While the law does consider it "professionally unreasonable" for an attorney to disregard a client's "specific instructions . . . to file a notice of appeal," id at 477 (and cases cited therein), defense counsel for petitioner has now submitted a sworn affidavit to the court indicating that his contemporaneous case notes show that he discussed the right to appeal with Davila-Bajana after sentence and that petitioner chose not to appeal. See Kirschheimer Aff. June 10, 2002. Given counsel's record of diligence before the court, Davila-Bajana's record for lying (evidenced by false accusations made against prosecutors in connection with their failure to file a departure motion in connection with his 1996 conviction), and the extreme unlikelihood that a defendant would wish to appeal a conviction that reduced a 151-188 month sentence to 60 months, the court concludes that no further hearing is necessary on this claim See Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001) (holding that district court was not required to hold an evidentiary hearing but could rely on counsel's affidavit in rejecting § 2255 claim that petitioner had been prevented from testifying at trial). It is rejected as without merit.

Davila-Bajana asserts that the point that should have been raised on appeal, and that he now separately raises in his petition to this court. is the due process right derived from Apprendi v. New Jersey, 530 U.S. 466, to be held accountable only for drug quantities proved beyond a reasonable doubt. The point merits little discussion.

Because Davila-Bajana admits that he pleaded guilty in the Reyes case to trafficking in at least five grams of cocaine base, there is no question as to the applicability of a five to forty year sentencing range in his case. See 21 U.S.C. § 841(b)(1)(B). Davila-Bajana's sole complaint then is that this court calculated his guidelines by relying on drug quantities stated in laboratory reports regarding seized exhibits. In United States v. Norris, 281 F.3d 357, 359 (2d Cir. 2002), however, the Second Circuit expressly ruled that Apprendi does not apply to guideline calculations within otherwise applicable statutory sentencing ranges. See also Harris v. United States, U.S. ___ S.Ct ___ 2002WL 1357277, *8 (June 24, 2002) ("Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable doubt components of the Fifth and Sixth Amendments"). The 151-188 month sentencing range attributed by the court to petitioner not only fell within the five to forty year range provided in § 841(b)(1)(B), it fell within the zero to twenty year range applicable to defendant's who plead guilty to trafficking in unspecified quantities of cocaine base see 21 U.S.C. § 841(b)(1)(C). of course, the sixty month sentence actually imposed on petitioner in the Reyes case was far below this guideline range. In light of Harris and Norris, Davila-Bajana's Apprendi claim is rejected as without merit.

Conclusion

For the reasons stated, the court finds that Davila-Bajana's challenge to his conviction in the Reyes case, whether characterized as a motion for § 2255 relief or a writ of error coram nobis, must be denied both as procedurally barred and without merit. The petition is denied as is a certificate of appealability. The Clerk of the Court is to mark this case closed.

SO ORDERED