The opinion of the court was delivered by: Hon. Jerome B. Simandle
Petitioner Ronnie Lopez was sentenced by the undersigned on May 30, 2002 to a term of 144 months' imprisonment following the execution of a written plea agreement, under which Petitioner pled guilty to conspiracy to distribute and possession with intent to distribute more than 5 kilograms of cocaine and 50 grams of cocaine base, or crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Plea Agrmt., Govt. Ex. 2.) The term imposed reflects a downward departure of about one-third of the time the Federal Sentencing Guidelines recommended, due to substantial assistance to the Government pursuant to 18 U.S.C. § 3553(e).
Petitioner now brings this application for post-conviction relief pursuant to 28 U.S.C. § 2255, alleging in his submissions to this Court [Docket Items No. 1, 3, 7, and 11]*fn1 that his sentence should be vacated, set aside, or corrected in light of United States v. Booker, 543 U.S. 220 (2005), Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000). Petitioner argues that (1) his trial counsel was constitutionally ineffective, (2) the Court erroneously relied on drug weights and evidence of a leadership role in the offense not admitted by the defendant or proven to a jury beyond a reasonable doubt, and (3) the plea agreement was ambiguous and breached by the Government. The application will be dismissed because Petitioner's claims are procedurally barred both by the statute of limitations and his failure to raise these issues on direct appeal.
Petitioner Ronnie Lopez was arrested as part of a twelve-member drug ring that included his brother, José Lopez, and half-brother, Nelson Salcedo.
On September 5, 2001, Petitioner pled guilty to a one-count indictment charging him with conspiracy to distribute and possession with intent to distribute more than 5 kilograms of cocaine and 50 grams of cocaine base (i.e. crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Plea Hr'g Tr.) The cooperating plea agreement included stipulations that Petitioner was accountable for at least 15 kilograms but less than 50 kilograms of powder cocaine and for more than 1.5 kilograms of crack cocaine, resulting in a Base Offense Level of 38 pursuant to U.S.S.G. § 2D1.1(c)(1). (Plea Agrmt. at 7.) The parties provided for a three-level reduction for Petitioner's acceptance of responsibility and for timely notifying the Government of his intention to plead guilty. (Id.) Petitioner stipulated that he waived his right to appeal or collaterally attack his sentence if the Base Offense Level was equal to or less than 35. (Id.) The agreement also set forth that Petitioner would provide assistance to the Government by testifying in grand jury and trial proceedings and assisting in investigations. (Id. at 2.) In return, the Government pledged to file a motion for a sentence reduction pursuant to § 5K1.1 of the Federal Sentencing Guidelines and 18 U.S.C. § 3553(e). (Id.) The report emphasized, however, that the Petitioner's sentence fell to the sole discretion of the Court, and that the agreement made no promises of a particular Sentencing Guidelines range. (Id. at 3.)
Thereafter, a Presentence Investigation Report was prepared by the United States Probation Office. That report corresponded with the plea agreement in its recommendation of an Offense Level of 35, including the three-level reduction for acceptance of responsibility. (Presentence Rep. at 13, Govt. Ex. 4.) It assigned Petitioner to the lowest criminal history category, I. (Id. at 15.) However, the report also assigned a three-level enhancement for the managerial role that Petitioner held within the conspiracy pursuant to U.S.S.G. § 3B1.1(b), resulting in a Total Offense Level of 38 and a recommended sentence of 235 to 293 months' imprisonment. (Id. at 19.)
At Petitioner's May 30, 2002 sentencing hearing, Petitioner objected to the three-level increase accompanying his managerial status in the conspiracy, but the Court overruled that objection and assigned the recommended Base Offense Level of 38. (Govt. Br. at 5.) The Government filed a motion for a downward departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) due to Petitioner's substantial assistance in the investigation. (Id. at 6.) The Court granted that motion and sentenced Petitioner to 144 months' imprisonment. (Id.) The Court advised Petitioner of his right to appeal. The Judgment and Conviction Order was entered on May 31, 2002. (J. Order May 31, 2002, Govt. Ex. 6.)
Petitioner never filed a direct appeal of his conviction or sentence, despite the fact that the conditional waiver of appeal in the plea agreement did not apply because the Court found an offense level of higher than 35. Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 on July 13, 2004. (Pet. Br. 1.) He filed a separate application on October 29, 2004 (Pet. Br. 2), and the two cases were consolidated by Court Order on November 10, 2004. Order, Lopez v. United States, No. 04-4969, No. 04-5313 (D.N.J. filed Nov. 10, 2003). Petitioner filed an amended petition on December 21, 2004. (Pet. Br. 3.) The Government submitted its answer on December 10, 2004 [Docket Item No. 6], and a supplemental answer on February 10, 2005. [Docket Item No. 9]. Petitioner filed a reply to the Government's brief on March 17, 2005. (Pet. Reply Br.)
A. Petitioner's Claims Are Procedurally Barred
Petitioner argues that the new principle of constitutional law established by the Supreme Court in United States v. Booker, 543 U.S. 220 (2005), provides the jurisdictional basis for the instant application for post-conviction relief. (See Pet. Br. 3 at 4; Pet. Reply Br. at ¶ III.) In Booker, the Supreme Court held that the Federal Sentencing Guidelines are advisory and non-binding, and constitute one factor for the Court to consider in determining a just sentence under 18 U.S.C. § 3553(a). Booker, 544 U.S. at 244. In addition to Booker, Petitioner also cites both Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000) as grounds for his collateral attack. (See Pet. Br. 1, 3; Pet. Reply Br.) Any sentencing challenge previously made under those cases is "now, of course, governed by the intervening decision. . . in Booker." Lloyd, 407 F.3d at 611. Because ...