MEMORANDUM & ORDER
This petition for habeas corpus filed pursuant to28 U.S.C. § 2255 arises out of the petitioner's guilty plea and sentence withrespect to five counts of conspiring to distribute cocaine base,distributing cocaine base and distributing cocaine hydrochloride.Petitioner, Norma Nieves ("Nieves"), seeks to vacate her sentenceon the grounds that 1) she received ineffective assistance ofcounsel, 2) the prosecutor engaged in misconduct and 3) thesupervised release component of her sentence exceeded the maximumunder governing law.
In 1999, Nieves and her son, Alex, began selling drugs forAnthony Nelson ("Nelson") in exchange for money or cocaine.During September 1999, Nieves sold cocaine and cocaine base on four occasions on behalf of an individual who, unbeknownst tothem, was cooperating with the Drug Enforcement Administration("the CW"). On September 13, 1999, Nieves sold the CW 0.8 gramsof cocaine base.1 The next day, she sold the CW 1.08grams of cocaine base. On September 21, 1999, she sold the CW1.07 grams of cocaine powder. On September 23, 1999, she sold theCW 2.03 grams of cocaine base. Those sales, which totaled 3.91grams of cocaine base and 1.07 grams of cocaine powder, are notin dispute.
The final sale which was attributed to Nieves occurred onDecember 7, 1999 and it forms the basis of the instant petition.On that day, the CW ordered cocaine base from Alex and hedelivered $250 worth and promised to return with more. When Alexdid not return, the CW telephoned Nieves's residence to speakwith him. Nieves answered and the CW asked if Alex could come by.Nieves responded that Alex had rushed out to a friend's house.Nieves' counsel offered an unofficial transcript of the phonecall in which Nieves responded to the CW's statement that Alexwas to deliver him more drugs. It includes the followingexchange: Nieves: Didn't he just give you that?
CW: Yeah. He's supposed to give me more though.
CW: He couldn't find Xiomara and Anth[ony Nelson] is not in town. Nieves: Oh. CW: So he was paging people to see if they would do what do you call it . . . If anybody has anything. Are you sure he didn't make up that story to you.At the end of the conservation, Nieves agreed that she would callthe CW if she saw Alex. A short time later, Alex called the CWand delivered more cocaine base, bringing the total for the dayto 1.63 grams. The subject dispute concerns whether those saleswere properly attributed to Nieves, thereby making herresponsible for an aggregate of more than five grams of cocainebase and triggering a mandatory minimum sentence of 60 monthsimprisonment.
Nieves was arrested and her attorney obtained funds and engagedan expert to analyze independently the drugs that formed thebasis of the charges. On June 7, 2002, she pled guilty to onecount of distributing cocaine, three counts of distributingcocaine base and one count of conspiring to distribute cocainebase.
The Probation Office found her responsible for the distributionof 5.54 grams of cocaine base by attributing to her the 1.63 grams involved in the December 7, 1999 sales. Nieves'counsel objected, arguing that Nieves had withdrawn from theconspiracy in October, 1999 because she had discovered she wasexpecting twins. She claims to have conveyed that information tothe CW. Counsel also related Nieves' version of the events ofDecember 7, 1999, including her contention that she was notinvolved in the transactions.
The Probation Office dismissed the objection because, at thetime, it erroneously believed that Nieves had pled guilty toconspiring to distribute more than five grams of cocaine base. Atthe commencement of the sentencing hearing on June 7, 2002, theCourt shared that erroneous belief. The government advised theCourt that Nieves had not, in fact, admitted responsibility formore than five grams and the Court invited argument on whetherthe sales on December 7, 1999 should be attributed to her.
Nieves' counsel argued that it was not clear from the recordthat the defendant had been aware of the sales before thetelephone call or that she had remained part of the conspiracyafter October, 1999. The Court rejected that argument, found herresponsible for the sales and sentenced her to 60 months'imprisonment, the mandatory minimum, and a four-year term ofsupervised release.
Nieves appealed on the grounds that she should not have been held accountable for the December 7, 1999 sales and that hersupervised release term exceeded the maximum authorized under21 U.S.C. § 841(b) and 18 U.S.C. § 3583(b). The First Circuit Courtof Appeals affirmed the sentence.
On November 3, 2003, Nieves filed the instant petition for awrit of habeas corpus on the grounds that: 1) she receivedineffective assistance of counsel, 2) the government engaged inprosecutorial misconduct and 3) the supervised release componentof her sentence exceeded the maximum under governing law. OnOctober 4, 2004, petitioner wrote a letter to this Court askingwhether Blakely v. Washington, 542 U.S. 296 (2004) had anyimplications for her case. That letter is, however, now moot inlight of United States v. Booker, 125 S.Ct. 738 (2005) andwill not be addressed.
II. Legal Analysis
Petitioner's second and third grounds for relief warrant onlybrief comment. Nieves contends that "the prosecution misled theProbation Office" by informing it that she had admitted to beingresponsible for more than five grams of cocaine base. She offersabsolutely no evidence in support of that contention and thefacts suggest that it is inaccurate. At the sentencing hearing,as soon as the misunderstanding became known, the governmentinformed the Court that the defendant had not admitted to being responsible for more than five grams of cocaine base.Apparently, the Probation Office simply made a mistake. Nievesallegation of intentional misconduct is unsustainable and, in anyevent, because the mistake was corrected, it had no prejudicialeffect upon the proceedings.
The length of Nieves' term of supervised release, has beenlitigated and decided on direct appeal. Consequently, it cannotbe re-litigated in this proceeding. Argencourt v. UnitedStates, 78 F.3d 14, 16 n. 1 (1st Cir. 1996).
Petitioner also suggests that her guilty plea was not madeknowingly and voluntarily because she did not know she could beheld liable for more than five grams of cocaine base. Althoughthe government is probably correct when it contends that herbrief reference to that argument does not properly raise theissue, to the extent it does, the argument fails because it wasnot raised on direct appeal. Bousley v. United States,523 U.S. 614, 621 (1998) ("the voluntariness and intelligence of aguilty plea can be attacked on collateral review only if firstchallenged on direct review").
The petitioner's principal ground for relief is that shereceived ineffective assistance of counsel because her attorneyfailed: 1) to review the laboratory reports which, allegedly,would have shown that the September 13, 1999 sale involvedcocaine powder and not cocaine base, 2) to offer evidence at the sentencing hearing to show that she was not responsible for theDecember 7, 1999 sales, 3) to advise her that she could be heldaccountable for more than five grams of cocaine base or 4) toinform her that she could listen to and offer into evidence thetape recording of the December 7, 1999 telephone call.
Under the so-called Strickland test, in order to succeed on aclaim of ineffective assistance of counsel, the petitioner mustprove that counsel's performance fell below an objective standardof reasonableness and that the deficient performance prejudicedher. Strickland v. Washington, 466 U.S. 668 (1984).
Petitioner's first claim of error is unavailing because, asexplained above, the September 13, 1999 transaction involvedcocaine base. The reason that the initial laboratory reportrelating to that transaction identified only "cocaine" is becausethe laboratory was not asked whether the cocaine was in base orpowder form and it does not make that determination by default.Thus, the calculations offered in petitioner's memorandum, whichassume the subject transaction involved powder cocaine, arewrong, the calculations offered by the government are correct anddefense counsel would have gained nothing by arguing to thecontrary.
The second claim of ineffective assistance has no basis in factbecause defense counsel vigorously contested Nieves'sresponsibility for the December 7, 1999 sales. Counsel prepared and offered a transcript of the telephone conversation, partiallyreproduced supra, which included notes highlighting theinflections in Nieves's voice, i.e. suggesting that thetransactions were news to her. Counsel also filed a five-page,single-spaced memorandum detailing why Nieves should not be heldresponsible for the transactions and, at the sentencing hearing,counsel offered oral argument to that effect.
The failure of counsel to call petitioner's son, Alex, totestify is not surprising because Nieves fails to explain how histestimony would have persuaded the Court that she was uninvolved.Likewise, counsel's failure to play the tape recording of thetelephone call for the Court was harmless because a transcript,with notes, was, in fact, offered. Nieves's argument that sheshould not be held responsible for the December 7, 1999 salesultimately failed not because counsel was ineffective but,rather, because the evidence demonstrated that she was properlyheld responsible.
Finally, petitioner's argument that she was not informed thatshe could offer the tape recording or that she could be heldresponsible for more than five grams of cocaine base, isdisingenuous. To the extent that Nieves argues that she was notinformed of her potential exposure, the record conclusivelyproves otherwise. At the change of plea hearing, Nieves wasspecifically informed that she could be held responsible for more than five grams of cocaine base as a result of the December 7,1999 transactions. In fact, when those transactions were beingdiscussed, Nieves personally made the comment that she should notbe held responsible for them. She was abundantly aware of thestakes involved.
Significantly, Nieves does not contend that she was prejudiced(nor could she) because conspicuously absent is any allegationthat, had petitioner been made aware of her exposure, she wouldnot have pled guilty. Thus, for all of the above reasons, thispetition for a writ of habeas corpus will be dismissed.
In accordance with the foregoing, the petitioner's Motion toVacate, Set Aside or Correct Sentence (Docket No. 1) is DENIEDand this petition is DISMISSED.
1. In her memorandum, Nieves mischaracterizes the 0.8 grams asbeing cocaine rather than cocaine base and she attaches alaboratory report to that effect. The drugs are, however,properly characterized as cocaine base as determined by asubsequent laboratory finding and report. In the initial report,the laboratory had not been asked to differentiate betweencocaine and cocaine base so it did not do so.