Sadio v. USA
ORDER: The petitioner's motion to vacate, set aside, or correct a sentence under 28 U.S.C § 2255 (Doc. No. 1 ) is hereby DENIED for the reasons set forth in the attached ruling. Signed by Judge Alvin W. Thompson on 8/31/2017.(Mata, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Civil No. 3:14cv1217(AWT)
UNITED STATES OF AMERICA,
RULING ON MOTION TO
VACATE, SET ASIDE OR CORRECT SENTENCE
Petitioner Okeiba Sadio (“Sadio”), proceeding pro se, has
moved pursuant to 28 U.S.C. § 2255 to vacate, set aside or
correct his sentence.
He makes three arguments.
argues that there was insufficient evidence to support his
conspiracy conviction and that he was a mere buyer/seller and
not part of the charged conspiracy.
Second, he claims that the
court erred in calculating the quantity of narcotics involved
in the offense, causing it to err in calculating the base offense
Third, he contends that his trial counsel had a
conflict of interest.
For the reasons set forth below, the
motion is being denied without a hearing.
FACTUAL AND PROCEDURAL BACKGROUND
On December 2, 2009, a federal grand jury returned an
Indictment against Sadio and sixteen others charging various
The defendant was arrested on December 2,
2009, and the police executed state search warrants for his
residence and an Acura he had been observed driving.
February 2010, after some of the defendants had pleaded guilty
to the charges in the original Indictment, the grand jury
returned a Superseding Indictment against the defendant, the
remaining co-defendants, and two new co-defendants.
2010, the grand jury returned a twelve-count Second Superseding
Indictment against the defendant and four remaining codefendants.
The Second Superseding Indictment charged the
defendant, in Count One, with conspiracy to possess with the
intent to distribute 50 grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846, and an
unspecified quantity of powder cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C) and 846, and in Count Twelve, with
possession with the intent to distribute 50 grams or more of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
Subsequently, the government filed a second offender
notice as to the defendant, listing four separate prior felony
drug convictions as potential qualifiers for enhanced penalties
under 21 U.S.C. § 841(b).
On November 29, 2011, jury selection
occurred, and trial commenced on December 6, 2011.
13, 2011, the jury convicted the defendant of the charges in
Counts One and Twelve of the Second Superseding Indictment.
The Presentence Report (“PSR”) found that the base offense
level, under the November 1, 2010 version of the Sentencing
Guidelines, was 32 because the defendant was involved in
conspiring to distribute more than 280 grams but less than 840
grams of cocaine base.
With no reduction for acceptance of
responsibility, the total offense level remained at 32.
PSR p laced the defendant in Criminal History Category VI
because he had accumulated a total of 22 criminal history
At a total offense level of 32 and Criminal History
Category VI, the advisory guideline incarceration range was 210
to 262 months.
At sentencing, the court, with the consent of the parties,
applied the Fair Sentencing Act of 2010 to the defendant’s case
so that the mandatory minimum incarceration term was reduced
from 20 years to 10 years because the defendant no longer was
convicted of a violation under 21 U.S.C. § 841(b)(1)(A). The
court adopted the factual findings and guideline calculation in
the PSR and imposed a guideline incarceration sentence of 240
On appeal, the defendant did not challenge his sentence.
Instead, he argued that the court erred in denying his motion to
suppress the evidence seized from his residence because the
search warrant affidavit did not establish probable cause.
also argued that there was insufficient evidence to support his
convictions because he was not a member of the charged
conspiracy, and he did not intend to distribute the cocaine base
seized from his bedroom.
The Second Circuit affirmed as to both counts of
It concluded that the warrant application was
supported by probable cause and that there was sufficient
evidence to support both counts of conviction. See United States
v. Muhammad, 520 Fed. Appx. 31, 40 (2d Cir. 2013).
Federal prisoners can challenge a criminal sentence
pursuant to 28 U.S.C. § 2255 only in limited circumstances.
[A] “collateral attack on a final judgment in a criminal
case is generally available under § 2255 only for a
constitutional error, a lack of jurisdiction in the
sentencing court, or an error of law or fact that
constitutes ‘a fundamental defect which inherently results
in complete miscarriage of justice.’”
Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996)
(citing United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)).
[N]ot “ every asserted error of law can be raised on a §
S e e Davis v. United States, 417 U.S. 333,
346 (1974) . . . . The grounds provided in section 2255
for collateral attack on a final judgment in a federal
criminal case are narrowly limited, and it has “long been
settled law that an error that may justify reversal on
direct appeal will not necessarily support a collateral
attack on a final judgment.” United States v. Addonizio,
442 U.S. 178, 184 (1979) . . . .”
Napoli v. United States, 32 F.3d 31, 35 (2d Cir. 1994), amended
on reh’g on other grounds, 45 F.3d 680 (2d Cir. 1995).
Constitutional errors will not be corrected through a writ of
habeas corpus unless they have had a “substantial and injurious
effect,” that is, unless they have resulted in “actual
Brecht v. Abrahamson, 507 U.S. 619, 623, 637-38
(1993); see also Underwood v. United States, 166 F.3d 84, 87 (2d
Cir. 1999) (applying Brecht to § 2255 motions).
“A § 2255 motion may not relitigate issues that were
raised and considered on direct appeal.”
United States v.
Perez, 129 F.3d 255, 260 (2d Cir. 1997) (declined to review
plea withdrawal claim that had already been argued on appeal).
This “so-called mandate rule bars re-litigation of issues
already decided on direct appeal.”
Yick Man Mui v. United
States, 614 F.3d 50, 54 (2d Cir. 2010)(citation omitted).
mandate rule prevents re-litigation in the district court not
only of matters expressly decided by the appellate court, but
also precludes re-litigation of issues impliedly resolved by the
appellate court’s mandate.”
Yick Man Mui, 614 F.3d at 53.
“[F]ailure to raise a claim on direct appeal is itself a
default of normal appellate procedure, which a defendant can
overcome only by showing cause and prejudice.”
United States, 968 F.2d 187, 190 (2d Cir. 1992).
This rule is
applied because of concerns about “finality, accuracy and the
integrity of prior proceedings, as well as concerns of judicial
“[C]ollateral review of convictions ‘places a
heavy burden on scarce judicial resources, may give litigants
incentives to withhold claims for manipulative purposes, and may
create disincentives to present claims when evidence is
fresh.’” Id. (quoting Keeney v. Tamayo Reyes, 504 U.S. 1, 7
To obtain review of procedurally defaulted claims, the
petitioner must show both “cause” for the default of each claim
and “prejudice” that resulted from the alleged violation. See
Ciak v. United States, 59 F.3d 296, 301, 302 (2d Cir. 1995),
abrogated on other grounds by Mickens v. Taylor, 535 U.S. 162,
172 n.3 (2002) (quoting Wainwright v. Sykes, 433 U.S. 72, 87
“Where the petitioner--whether a state or federal
prisoner--failed properly to raise his claim on direct review,
the writ is available only if the petitioner establishes ‘cause’
for the waiver and shows ‘actual prejudice from the alleged . .
Reed v. Farley, 512 U.S. 339, 354 (1994)
(quoting Wainwright, 433 U.S. at 84).
“‘Cause’ under the cause and prejudice test must be
something external to the petitioner, something that cannot
fairly be attributed to him”.
Coleman v. Thompson, 501 U.S.
722, 753 (1991) (emphasis in original).
“[T]he existence of
cause for a procedural default must ordinarily turn on whether
the prisoner can show that some objective factor external to the
defense impeded counsel’s efforts to comply with the . . .
Id. (quotation marks omitted) (quoting Murray
v. Carrier, 477 U.S. 478, 488 (1986)).
To demonstrate prejudice, a petitioner must convince the
court “that ‘there is a reasonable probability’ that the result
of the trial would have been different” if not for the alleged
Strickler v. Greene, 527 U.S. 263, 289 (1999) (applying
the cause-and-prejudice standard to a state procedural default
in a § 2254 habeas case). The question is whether, despite the
error, “[the petitioner] received a fair trial, understood as a
trial resulting in a verdict worthy of confidence.”
Id. at 289-
90 (internal quotation marks omitted) (quoting Kyles v. Whitley,
514 U.S. 419, 434 (1995)).
Section 2255 provides that a district court should grant a
hearing “[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
28 U.S.C. § 2255(b).
However, district courts may
“exercise their common sense”, Machibroda v. United States, 368
U.S. 487, 495 (1962), and may draw upon personal knowledge and
recollection of the case, see Blackledge v. Allison, 431 U.S.
63, 74 n.4 (1997); United States v. Aiello, 900 F.2d 528, 534
(2d Cir. 1990).
Thus, a § 2255 motion may be dismissed without
a hearing if, after a review of the record, the court determines
that the allegations are insufficient as a matter of law.
The government argues that the instant habeas petition was
not timely filed.
The court agrees and, moreover, concludes
that assuming arguendo that the petition was timely filed, the
petitioner’s three arguments fail for additional reasons.
Under 28 U.S.C. § 2255,
A 1-year period of limitation shall apply to a
motion under this section. The limitation period shall
run from the latest of - (1) the date on which the
judgment of conviction becomes final; (2) the date on
which the impediment to making a motion created by
governmental action in violation of the Constitution
or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action; (3) the date on which the right
asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or (4) the date on which
the facts supporting the claim or claims presented
could have been discovered through the exercise of due
Here, the sentence was affirmed by summary order on April 13,
2013 and the mandate was issued on May 21, 2013.
petitioner did not file his § 2255 motion until August 18,
2014, more than a year after the judgment of conviction became
Therefore, the petition is untimely under 28 U.S.C. §
B. Sufficiency of the Evidence
Sadio’s claim that there was insufficient evidence to
support his conspiracy conviction and that he was a mere
buyer/seller and not part of the charged conspiracy is barred
under the mandate rule because he raised the exact same
argument on appeal.
A § 2255 motion “may not relitigate issues
that were raised and considered on direct appeal.”
F.3d at 260.
Here, Sadio argued on direct appeal that the
evidence at trial established that he was a mere buyer/seller
and not a member of the charged conspiracy.
The Second Circuit rejected this claim.
The jury had a sufficient basis to conclude
beyond a reasonable doubt that Sadio and the Pena
brothers shared the purpose of advancing Sadio’s
sales to his own customers. . . . [T]he Penas
testified that Sadio referred to third parties
complaining about or complimenting his product, and
the Penas assumed these third parties were his
customers. Although “mere awareness on the part of
the seller that the buyer intends to resell the drugs
is not sufficient to show that the seller and the
buyer share a conspiratorial intent to further the
buyer’s resale,” . . . a seller whose business
depends on selling wholesale quantities “may well
realize that his buyers’ ability to buy and pay
for substantial amounts of drugs, and hence, his
profit, will depend on the buyers’ ability to
resell.” . . . William Pena testified that he did not
sell to people who “were just buying for use” and
instead trafficked in quantities of no less than 5
grams. A jury could therefore infer that his business
depended on selling wholesale quantities to other
dealers, and he and his brother knew that Sadio was
one such dealer.
“In such case, the liability of buyer and seller
for having conspired together to transfer drugs ...
depend[s] ... on a further showing of the seller's
interest, shared with the buyer, in the success of
the buyer's resale.” Parker, 554 F.3d at 236. To
prove that interest, the Government also presented
evidence that the Penas supported Sadio's dealing by,
for example, immediately replacing 135 grams of crack
when he complained that it was not good. William Pena
testified that it was important to him to make Sadio
happy because Sadio “was bringing [him] money, a lot
of money.” Both William Pena's testimony and the
evidence of specific sales to Sadio suggest that the
Penas' business relied on the regular sale of crack
cocaine in bulk, which could only be accomplished if
their buyers were selling their purchases.
In sum, the evidence was sufficient to permit a
rational jury to conclude beyond a reasonable doubt
that Sadio regularly sold the drugs he purchased and
narcoticsdistribution conspiracy by agreeing to accomplish its
illegal objective beyond the mere purchase or sale.”
United States v. Hawkins, 547 F.3d 66, 73–74 (2d
Muhammad, 520 Fed. Appx. at 40.
Because the very same
sufficiency of the evidence claim that Sadio tries to raise in
this habeas petition was addressed and rejected on appeal, the
claim is procedurally barred.1
C. Determination of the Base Offense Level
With respect to his sentencing, Sadio claims that the court
erred in calculating the quantity of narcotics involved
Moreover, for the reasons set forth by the government in its
response, even on its merits, this claim fails. See
Government’s Response to Sadio’s Petition under 28 U.S.C. §2255
to Vacate, Set Aside, or Correct Sentence (Doc. No. 6) (“Gov’t
Response”) at 17 to 19.
offense, causing it to err in calculating the base offense
Specifically, he contends that the c ourt erred in
attributing between 280 grams and 800 grams of crack cocaine to
him for his role in the charged conspiracy.
This is the first
time Sadio has raised this claim.
This claim is a procedurally defaulted claim because Sadio
could have raised it on direct appeal.
from the alleged violation.
Thus, Sadio must show
See Reed, 512 U.S. at 354.
Here, Sadio fails to explain why he did not raise this
There was no apparent impediment to him
challenging the quantity of narcotics attributable to his
offense both at sentencing and on direct appeal.
claim is not cognizable on habeas review because it concerns a
claim of improper application of the sentencing guidelines.
Graziano v. United States, the court decided that claims of
improper application of the sentencing guidelines are not
generally cognizable under 28 U.S.C. § 2255:
In Femia v. United States, 47 F.3d 519, 525 (2d Cir.1995),
miscarriage of justice” standard should apply to challenges
to the application of the Sentencing Guidelines raised for
the first time in a § 2255 motion. Insofar as claims
regarding a sentencing court's error in failing to properly
apply the Sentencing Guidelines are neither constitutional
nor jurisdictional, we join several other circuits in
holding that, absent a complete miscarriage of justice,
such claims will not be considered on a § 2255 motion where
the defendant failed to raise them on direct appeal. See
United States v. Schlesinger, 49 F.3d 483, 485 (9th
Cir.1994) (“[N]onconstitutional sentencing errors that have
not been raised on direct appeal have been waived and
generally may not be reviewed by way of 28 U.S.C. § 2255”);
Knight v. United States, 37 F.3d 769, 772-74 (1st Cir.1994)
(finding error in application of Sentencing Guidelines that
was not raised on direct appeal to be unreviewable on a §
2255 motion unless the defendant demonstrates a “complete
miscarriage of justice”); Scott v. United States, 997 F.2d
misapplication of the Sentencing Guidelines not cognizable
on a § 2255 motion in the absence of a “complete
miscarriage of justice”); United States v. Vaughn, 955 F.2d
367, 368 (5th Cir.1992) (per curiam) (finding that error in
application of Sentencing Guidelines does not constitute
“complete miscarriage of justice” meriting review under §
2255 where defendant failed to raise claim on direct
appeal); see also United States v. Essig, 10 F.3d 968, 977
n. 25, 979 (3d Cir.1993) (applying “cause and prejudice”
test of United States v. Frady, 456 U.S. 152, 162-64, 167,
102 S.Ct. 1584, 1591-93, 1594, 71 L.Ed.2d 816 (1982), to
Sentencing Guidelines claims raised for the first time in §
2255 motion; noting that by failing to raise issue on
direct appeal, defendant waived the prior question of
whether the sentencing error constituted plain error).
Graziano, 83 F.3d at 590.
Here, Sadio makes no proffer with
respect to, and there is nothing in the record that suggests
there is an issue as to, a miscarriage of justice.2
D. Conflict of Interest
“‘A defendant’s Sixth Amendment right to effective
assistance of counsel includes the right to representation by
conflict-free counsel.’” United States v. Schwarz, 283 F.3d 76,
90 (2d Cir. 2002) (quoting United States v. Blau, 159 F.3d 68,
74 (2d Cir. 1998)). “A claim that counsel is conflicted is in
Moreover, even on its merits, the petitioner’s sentencing claim
fails for the reasons set forth by the government in its
response. See Gov’t Response at 22-23.
essence a claim of ineffective assistance of counsel.”
States v. Stantini, 85 F.3d 9, 15 (2d Cir. 1996) (citing Glasser
v. United States, 315 U.S. 60, 70 (1942)).
In Strickland v. Washington, the Supreme Court held that a
defendant must establish (1) that his counsel’s performance
“fell below an objective standard of reasonableness” and (2)
that counsel’s unprofessional errors actually prejudiced the
466 U.S. 668, 688 (1984).
To satisfy the first, or “performance,” prong, the
defendant must show that counsel’s performance was
“ outside the wide range of professionally competent
assistance,” [Strickland, 466 U.S.] at 690, and to
satisfy the second, or “prejudice,” prong, the
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.
Brown v. Artuz, 124 F.3d 73, 79-80 (2d Cir. 1997).
must meet both requirements of the Strickland test to
demonstrate ineffective assistance of counsel.
fails to satisfy one prong, the court need not consider the
See Strickland, 466 U.S. at 697.
“The court’s central
concern is not with ‘grad[ing] counsel’s performance,’ but with
discerning ‘whether, despite the strong presumption of
reliability, the result of the particular proceeding is
unreliable because of a breakdown in the adversarial process
that our system counts on to produce just results.’”
States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting
Strickland, 466 U.S. at 696-97 (internal citations omitted)).
court considering a claim of ineffective assistance must apply
a ‘strong presumption’ that counsel's representation was within
the ‘wide range’ of reasonable professional assistance.”
Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (quoting
“The challenger’s burden is to show ‘that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.’” Id.
“However, when the claim of ineffective assistance of
counsel is based on an asserted conflict of interest, a less
exacting standard applies, and prejudice may be presumed.”
United States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000).
defendant is entitled to a presumption of prejudice on showing
(1) ‘an actual conflict of interest,’ that (2) ‘adversely
affected his lawyer’s performance.’”
Id. (quoting Cuyler v.
Sullivan, 446 U.S. 335, 348 (1980)).
To meet his burden under Cuyler, the petitioner must first
establish that an actual conflict of interest existed, that is
he must show “the attorney’s and defendant’s interests
‘diverge[d] with respect to a material factual or legal issue or
to a course of action.’”
Winkler v. Keane, 7 F.3d 304, 307 (2d
Cir. 1993) (quoting Cuyler, 446 U.S. at 356 n.3).
petitioner must establish an actual lapse in representation that
resulted from the conflict.
See id. at 309. An actual lapse in
representation is demonstrated by the existence of some
“plausible alternative defense strategy not taken up by defense
Id. (citations omitted).
Third, the petitioner must
establish causation, that is, he must establish that the
alternative defense strategy “was inherently in conflict with
or not undertaken due to the attorney’s other loyalties or
Moree, 220 F.3d at 69 (quoting Winkler, 7 F.3d at
Sadio claims that his trial counsel, Attorney Sebastian
DeSantis, somehow suffered from an actual conflict of interest.
He does not explain the nature of the conflict, other than to
point out that Attorney DeSantis had represented him initially
in this case and had been replaced by new CJA counsel when
there was a breakdown in communication between Sadio and
Attorney DeSantis was initially appointed to represent
Sadio in December 2009.
It is true that replacement CJA
counsel was appointed when Attorney DeSantis filed a motion to
withdraw as counsel in April 2010, stating that he was doing so
at Sadio’s direction.
The court determined that Sadio had
asked Attorney DeSantis to withdraw from the case and granted
The court then appointed Attorney John Andreini to
represent the defendant.
After jury selection and just before
the start of evidence, Attorney Andreini also moved to
withdraw as counsel.
In support of that motion, he stated
that he and the defendant were no longer communicating and
that he perceived there to be at least a potential conflict of
interest because, after jury selection, Sadio indicated that he
had filed a grievance against him.
The court held a hearing.
At the hearing, Attorney Andreini reported that he perceived
there to be a potential conflict of interest based on the fact
that Sadio indicated to Attorney Andreini that he had filed a
grievance against him.
Attorney Andreini felt that fact placed
him in an adversarial relationship with Sadio.
the court personally in support of his request for new counsel.
He said that he did not think he could get a fair trial with
Attorney Andreini representing him because he did not think
they had prepared sufficiently for trial. He asked the court to
grant him new counsel and specifically asked the court to
consider re-appointing Attorney DeSantis:
I wish, man, if he had to -- in the amount of time, I wish
I could go back with Mr. DeSantis. I expressed that to him
in the hallway, I apologized . . . If you gave me that
same chance again, I would. Since he put a lot of time in
the case, I would go back to Mr. DeSantis, if you gave us
Tr.9/21/10 at 11.
Thus, Sadio represented that he regretted
having asked for Attorney DeSantis to be replaced and that, if
Attorney DeSantis would agree to represent him again, he would
like to have him as counsel.
In his § 2255 motion, Sadio suggests that there was an
actual conflict of interest between him and Attorney DeSantis,
but he does not explain the nature of the conflict.
to suggest that Attorney DeSantis did not have enough time to
prepare for the trial but offers no factual support for this
Attorney DeSantis represented the defendant from the
date of the original indictment in December 2009 until he
withdrew from the case in April 2010.
He took over
representation of the defendant again in September 2010 and
represented him for the trial, which commenced in December 2010
after the court selected a new jury.
The record contains
nothing that suggests that Attorney DeSantis was not prepared
to proceed to trial or that he suffered any potential or actual
conflict of interest.
To the contrary, in November 2010,
Attorney DeSantis filed substantive motions on behalf of the
defendant, including motions to dismiss the indictment, to
suppress the evidence seized from the defendant’s residence at
the time of his arrest, and to suppress the fruits of the
Attorney DeSantis performed effectively at
trial, attacking the credibility of the government’s
cooperating witnesses and putting on the testimony of the
defendant’s parents, who suggested that he was a drug user and
not a drug dealer.
Thus, there is no factual support for the proposition that
Attorney DeSantis suffered from either an actual or a potential
conflict of interest.
Moreover, assuming arguendo that a
potential conflict existed, nothing in the record supports the
contention that such a conflict adversely affected Attorney
DeSantis’s performance at any stage of the trial or sentencing.
For the reasons set forth above, the motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. No.
1) is hereby DENIED.
The court will not issue a certificate of
appealability because Sadio has not made a substantial showing
of the denial of a constitutional right.
See 28 U.S.C. §
It is so ordered.
Signed this 31st day of August, 2017 at Hartford,
Alvin W. Thompson
United States District Judge
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