Opinion
02-CV-1883 (JG)
December 16, 2002
FERNANDO PRECIADO, Reg. No. 50387-053, Bradford, PA, Petitioner Pro Se.
ROSLYNN R. MAUSKOPF, United States Attorney, Eastern District of New York, by Marshall Miller, Assistant United States Attorney, Attorney for Respondent.
MEMORANDUM AND ORDER
Fernando Preciado was sentenced on May 24, 2001, to a 28-month term of imprisonment on his plea of guilty to violating the terms of his supervised release. The term of supervised release had followed a 36-month term of imprisonment imposed on May 10, 1996, on Preciado's plea of guilty in conspiring to possess with intent to distribute cocaine. That 36-month sentence was a result of a substantial downward departure; indeed, but for Preciado's cooperation with the government, and the ensuing motion pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553 (e), Preciado would have faced at least ten years in prison.
The 28-month term of incarceration imposed on the violation of supervised release resulted from Preciado engagement in a two-kilogram cocaine deal on June 14, 1999. Preciado pled guilty to participating in that transaction on May 18, 2001, and thereby violating the terms of his supervised release. He had previously served, in state custody, a term of imprisonment of one and one-half to three years based on the same transaction.
In a letter received by the Clerk of the Court on December 18, 2001, Preciado sought relief from his 28-month term of imprisonment. The letter appeared to seek the assignment of counsel, the lifting of a detainer imposed by the Immigration and Naturalization Service ("INS"), and a reduction in the prison term. It alleged ineffective assistance of coansel on the supervised release violation.
On December 26, 2001, consistent with what I perceived to be my obligation under Adams v. United States, 155 F.3d 582, (2d Cir. 1998), I informed Preciado that if he was entitled to relief at all, it would be pursuant to 28 U.S.C. § 2255. I informed him to let me know if he wanted me to treat his letter as a § 2255 motion.
By letter dated March 1, 2001 (which was plainly written on March 1, 2002) Preciado informed me that he wanted his December 2001 letter to be treated as a motion pursuant to § 2255. Accordingly, the above-captioned case was opened, the government was directed to respond, and the case is now ripe for decision. For the reasons set forth below, the motion is denied.
Preciado's various complaints can be distilled into the following claims: (1) that he received ineffective assistance of counsel in connection with his supervised release violation proceeding; (2) that the Bureau of Prisons ("BOP") is providing him with inadequate dental treatment; and (3) that I should appoint counsel to assist him with his petition.
Ineffective assistance claims are governed by the standards set forth in Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Preciado must establish that his counsel's performance was deficient, as measured by an objective standard of reasonableness, and also that counsel's substandard performance prejudiced his defense. Preciado does not even make a colorable claim that his counsel rendered ineffective assistance. He claims that his attorney, Sabrina P. Sehroff, disapproved of his cooperation with the government (Preciado cooperated even after his 1999 arrest), but there is no support for that assertion in the record. To the contrary, Schroff sought an adjournment of the violation proceeding in order to facilitate Preciado's cooperation, and she argued vigorously for leniency on his behalf based on his cooperation. Indeed, as I told Preciado when he offered his plea of guilty to violating the terms of his supervised release, I was initially inclined to sentence him to a jail term "as long as three, four, five years." May 18, 2001, Transcript at 5. As I stated to Preciado at that time, I believed that he received "considerable leniency the first time I sentenced" him, and his commission of another serious narcotics offense while on release warranted serious punishment. It is fair to say that the vigorous advocacy of Ms. Schroff helped to procure a lower sentence than the one I was initially inclined to impose. In any event, it cannot fairly be said that her performance fell below an objective standard of reasonableness.
Similarly, Preciado's complaint that Schroff failed to subpoena certain DBA agents has no merit. In fact, Detective David J. Morales directly addressed me on behalf of Preciado, describing for me at the May 18, 2001 appearance the various ways in which Preciado's cooperation assisted the authorities. There is simply no evidence that the DEA agents would have added anything to Detective Morales forceful presentation, and Schroff's decision not to subpoena the DEA agents was plainly reasonable.
Finally, Preciado's argument that Schroff was "intimidated" by me is frivolous.
Preciado's complaints about his medical treatment in prison are not cognizable under § 2255. Under that section, a prisoner may challenge only the validity of his sentence, not the manner in which it is being executed. See Corrao v. United States, 152 F.3d 188, 191 (2d Cir, 1998). Preciado's complaints regarding his medical treatment should be addressed in the first instance to the BOP. If, upon exhausting his administrative remedies, he wishes to pursue his complaint, he should do so in the district court in the federal judicial district in which he is confined.
Although I have discretion to appoint counsel to represent Preciado, I decline to exercise it. The first inquiry in determining whether to appoint counsel is whether any of the petitioner's claims are likely to have any substance. As none of Preciado's claims has any merit, counsel shall not be appointed, and I need not address the other factors to be considered when a request for appointed counsel is made. See Cooper v. A. Sargenti Co., 877 F.2d 170 (2d Cir. 1989).
CONCLUSION
For the foregoing reasons, Preciado's petition pursuant to 28 U.S.C. § 2255 is denied, as he has failed to make a substantial showing of a denial of a federally protected right, no certificate of appealability shall issue.