Opinion
99 CR 478 (JSM), 01 Civ. 2046 (JSM)
August 13, 2001
Fredie Aulet, #46329-054, Fort Dix, NJ, for Petitioner.
John Hillebrecht, Assistant United States Attorney, New York, NY, for Government.
Memorandum Opinion and Order
Freddie Aulet ("Petitioner") petitions under 28 U.S.C. § 2255 seeking to set aside his sentence of 123 months. Petitioner's principal claim is that his sentence is invalid under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). However, Petitioner's sentence of 123 months was within the statutory maximum of twenty years prescribed by 21 U.S.C. § 841(b)(1)(C). 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) (citingUnited States v. Garcia, 240 F.3d 180, 183-84 (2d Cir. 2001)). Moreover, Petitioner stipulated in his plea agreement to the drug quantity, thereby waiving any Apprendi claim. See United States v. Champion, 234 F.3d 106, 110 (2d Cir. 2000).
Petitioner also challenges his Guidelines calculation, claiming that he should not have been assessed an additional two points because he was not a manager of the narcotics operation. However, in his plea agreement, Petitioner stipulated to this enhancement and during his plea allocution, he acknowledged reading the plea agreement and discussing it with his counsel. In addition, prior to sentencing, Petitioner acknowledged reading the pre-sentence report which reflected this enhancement. Under these circumstances, Petitioner's bald assertion that he was not a manager is unworthy of belief. In any event, Petitioner is barred from asserting this claim in a § 2255 proceeding because he failed to directly appeal his sentence on this ground. See United States v. Frady, 456 U.S. 152, 165-67, 102 S.Ct. 1584, 1593-94 (1982).
Petitioner's final contention is that his counsel was ineffective. In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish that (1) counsel's performance was deficient, and (2) 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.
Petitioner claims that his counsel was ineffective because counsel did not challenge the two level adjustment of his offense level, which was implemented because Petitioner was a manager. However, since Petitioner read and signed the plea agreement that acknowledged this fact, Petitioner fails to demonstrate that he was prejudiced by counsel's alleged shortcomings. Moreover, it is reasonable to assume that in negotiating a plea agreement, defense counsel made tactical choices to stipulate certain Guideline factors in exchange for the Government's agreement not to press for a higher Guideline range. Counsel's judgment in this regard was well within the range of tactical strategy that is left to the professional judgment of defense counsel, and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . ." Id., at 689, 104 S.Ct. at 2065.
Petitioner's contention that his prosecution was barred by principles of double jeopardy is also without merit. It is well established that a state prosecution arising from the same factual situation does not bar a subsequent federal prosecution. See United States v. Arena, 180 F.3d 380, 399 (2d Cir. 1999), cert. denied, 531 U.S. 811, 121 S.Ct. 33 (2000).
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 (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); Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.
SO ORDERED.