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June 13, 1995


The opinion of the court was delivered by: MARYANNE TRUMP BARRY



 In support of his argument that his sentence should be vacated, petitioner makes two contentions, both purporting to demonstrate that at his plea his attorney rendered ineffective assistance of counsel. First, petitioner contends that his plea was not voluntary in that his attorney failed to bring to the court's attention a promise allegedly made by the Government in exchange for petitioner's plea of guilty that petitioner claims was subsequently broken. Second, petitioner contends that he was deprived of the effective assistance of counsel inasmuch as his attorney failed to inform him before he pled guilty that he would be sentenced as a Career Offender under the Sentencing Guidelines.

 In support of his alternative contention, and the relief he seeks of resentencing to a lesser term, petitioner first claims that this court engaged in impermissible double-counting in calculating his total offense level. Second, petitioner claims that his classification as a Career Offender should be struck because the United States Sentencing Commission overstepped its mandate by including a conviction for conspiracy to violate laws governing controlled substances within its definition of a "controlled substance offense" under the Career Offender guideline.

 For the reasons that follow, the petition will be denied.


 On November 1, 1991, petitioner was indicted by a federal grand jury along with two other individuals, Chuddy Augustine Ani and Brandon Mincer, for violations of various narcotics laws. Count 1 of the indictment charged that between October 1, 1991 and October 31, 1991, the three defendants knowingly and intentionally conspired to distribute and to possess with intent to distribute more than 100 grams of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count 2 charged petitioner and Mincer with knowingly and intentionally possessing more than 100 grams of heroin during the same time period. Johna Hillgrove, petitioner's girlfriend, was contemporaneously charged in a separate information with intent to distribute 100 grams of heroin.

 In conjunction with cooperating plea agreements, Ani and Mincer pled guilty to Count 1 of the indictment on January 13, 1992. On January 31, 1992, petitioner entered into a plea agreement with the Government. Petitioner's plea was entered on the same day. Pursuant to the terms of his non-cooperating plea agreement, petitioner pleaded guilty to Count 1 of the indictment and the Government subsequently dismissed Count 2.

 Petitioner was sentenced on April 30, 1992 as a Career Offender under § 4B1.1 of the Sentencing Guidelines based upon two prior convictions involving controlled dangerous substances. *fn1" The term of incarceration imposed -- 210 months -- was appealed by petitioner pro se to the Court of Appeals for the Third Circuit. By judgment order dated March 21, 1994, the Third Circuit affirmed the judgment of sentence.


 A challenge to the validity of a guilty plea based on a claim of ineffective assistance of counsel is governed by the two-part test enunciated by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). See also Thomas v. United States, 27 F.3d 321, 325 (8th Cir. 1994); Figueroa v. United States, 1993 U.S. Dist. LEXIS 3593, 1993 WL 88213, *3 (S.D.N.Y.), aff'd without opinion, 17 F.3d 391 (2d Cir. 1993). Under Strickland, to prevail on an ineffective assistance of counsel claim, petitioner must demonstrate both (1) that counsel's representation "fell below an objective standard of reasonableness", Strickland, 466 U.S. at 688; and (2) 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. See Hill v. Lockhart, 474 U.S. 52, 59, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985); Thomas, 27 F.3d at 325; Figueroa, 1993 U.S. Dist. LEXIS 3593, 1993 WL 88213, at *3.

 A. Counsel's Failure to File a Motion Seeking to Withdraw the Plea Due to the Alleged Failure of the Government to Adhere to the Terms of its Plea Agreement

 Petitioner's first ground in support of his ineffective assistance claim involves a purportedly unkept promise by the Government that neither petitioner nor his counsel saw fit to report to the court during the plea colloquy. Specifically, petitioner alleges that the Government promised to dismiss the charges pending against Ms. Hillgrove in exchange for petitioner's guilty plea. Parenthetically, it could well be argued and, perhaps, should be argued that petitioner is barred from raising this claim because it was raised on direct appeal -- albeit bereft of the ineffective assistance of counsel clothing it now bears -- and rejected. It is well established, of course, that absent circumstances not evident here, § 2255 may not be employed to relitigate questions raised and considered on direct appeal. Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986); United States v. Palumbo, 608 F.2d 529, 533 (3d Cir. 1979), cert. denied, 446 U.S. 922, 64 L. Ed. 2d 278, 100 S. Ct. 1861 (1980). In an exercise of caution, however, because of the "ineffective assistance" trappings, this court will revisit the issue.

 Petitioner faces several daunting obstacles if he is to prevail on his ineffective assistance of counsel claim or even receive the evidentiary hearing he requests. Most importantly, petitioner's statements at his Rule 11 plea colloquy directly contradict the claim that there existed any agreement beyond that set forth on the record. The following passage from the plea colloquy amply demonstrates that glaring contradiction:

THE COURT: I understand there is a plea agreement in this case. Mr. Cecchi, would you set forth the full terms on the record please.
MR. CECCHI: Yes, Your Honor. The full terms of the plea agreement is that Mr. Nwachia will plead guilty to Count 1. At sentencing, the United States will dismiss Count 2 of the indictment, and that's basically the parameters of the plea agreement. Would you like me to go through the penalties?
THE COURT: No, you don't have to go through the penalties. There is a cooperating plea agreement?
MR. CECCHI: Not a cooperating plea agreement.
THE COURT: All right.
MR. CECCHI: We have not stipulated at this point to anything.
THE COURT: All right. Mr. Marra, are there any terms of the plea agreement that you believe should be set forth on the record?
MR. MARRA: I don't believe so, Your Honor.
THE COURT: More importantly, Mr. Nwachia, are there any promises that have been made to you that have not been set forth by Mr. Cecchi?
MR. NWACHIA: No, Your Honor.
THE COURT: Has anybody promised you what sentence you will receive?
MR. NWACHIA: No, Your Honor.
THE COURT: Because I have no idea what sentence you will receive. Do you understand you could not come back at a later date and tell me that other promises were made to you unless they're set forth here and now?
MR. NWACHIA: No, Your Honor.
THE COURT: You don't understand . . . Do you ...

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