Monk v. United States of America

Filing 12

ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255): The Petition for Writ of Habeas Corpus is DENIED. The Clerk of Court is directed to enter judgment and close this case. So Ordered by Judge Nicholas G. Garaufis on 7/17/2014. (c/m to pro se; fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------------X
DAMON MONK,

MEMORANDUM & ORDER
Petitioner,

12-CV-04350 (NGG)
-againstUNITED STATES OF AMERICA,
Respondent.

---------------------------------------------------------------------X
NICHOLAS G. GARAUFIS, United States District Judge.
Petitioner Damon Monk brings this pro se Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2255. (Mot. to Vacate, Set Aside, or Correct Sentence ("Pet.") (Dkt. 1).) 1 Petitioner
pied guilty to conspiracy to distribute and to possess with intent to distribute cocaine base and
MDMA, in violation of21 U.S.C. §§ 846, 84l(b)(l)(A)(iii), and 84l(b)(l)(C); distribution of
and possession with intent to distribute cocaine base and MDMA, in violation of 21 U.S.C. §§
84l(a)(l), (b)(l)(A)(iii), and (b)(l)(C); and maintaining a drug-premises, in violation of 21
U.S.C. §§ 856(a)(l), (a)(2), and (b). Petitioner was sentenced to 262 months imprisonment and
five years supervised release. Petitioner appealed and was later resentenced to 13 5 months
imprisonment and twelve years supervised release. Petitioner now challenges his conviction on
the grounds that he received ineffective assistance of counsel in violation of the Sixth
Amendment and that the court did not have proper jurisdiction to impose a weapon enhancement
to his sentence. For the reasons set forth below, the Petition is DENIED.

1
Citations which reference "Dkt." are documents from the instant case, Monk v. United States, No. 12-CV-04350
(NGG) (E.D.N.Y.). Citations referring to "Trial Dkt." are documents filed during the underlying criminal
proceedings, United States v. Monk, No. 06-CR-0642 (NGG) (E.D.N.Y.).

I.

BACKGROUND
On August 23, 2006, the New York City Police Department executed a search warrant at

apartment 4-A of 1550 East New York Avenue in Brooklyn, New York. (Compl. (Trial Dkt. 1).)
At the time of the search, Petitioner and his three co-defendants were inside the apartment.
(Mem. of Law in Opp'n to Pet. ("Opp'n") (Dkt. 9) at 5.) Officers discovered over 100 grams of
crack cocaine, 15 grams of ecstasy (i.e. MDMA), over 25 grams of marijuana, a small amount of
heroin, and over $5,500 throughout the apartment. (Sentencing Mem., Ex. 8 ("Evidence
Vouchers") (Trial Dkt. 107-8).) In the kitchen, officers found drug paraphernalia for cooking
crack cocaine. (Pet. at 15; Evidence Vouchers.) In Petitioner's bedroom, officers also
discovered a 9-millimeter round of ammunition, a loaded 9-millimeter magazine with eight
rounds of ammunition, and a box of .40 caliber ammunition. (Compl. ,; 3; Evidence Vouchers.)
John S. Wallenstein was appointed to represent Petitioner on August 28, 2006, serving as

counsel during pre-trial proceedings and later representing Petitioner at trial. (Wallenstein Deel.
(Dkt. 9-6) ii 2.) On September 25, 2006, Petitioner and his co-defendants were charged with: (1)
conspiring to distribute and to possess with intent to distribute (a) more than 50 grams of cocaine
base and (b) MDMA; (2) distributing and possessing with intent to distribute (a) more than 50
grams of cocaine base and (b) MDMA; and (3) maintaining a premises for the purpose of
unlawfully manufacturing, distributing, storing, and using controlled substances. (Indictment
(Trial Dkt. 21).)
The Government offered a plea agreement to Petitioner, which was delivered to
Wallenstein on November 2, 2006, and was set to expire on November 27, 2006. (Jones Deel.
(Dkt. 9-5), Ex. B.) If Petitioner pied guilty on or before this expiration date, the Government
was to recommend "an additional one-level reduction" of Petitioner's offense level. (Id.) The

2

agreement outlined that Petitioner would plead guilty to Count One of the Indictment. (Jones
Deel., Ex.

A~

1.) The Sentencing Guidelines calculation in the plea offer stated Petitioner was

subject to 120 to 135 months imprisonment, consistent with a base offense level of 34, a ten-year
mandatory minimum sentence, a two-level reduction for acceptance of responsibility, and a onelevel reduction pursuant to U.S.S.G. § 3El.l(b).

(Id.~

2.) The plea offer stated that the

Guidelines estimate "is not binding on the [U.S. Attorney's] Office, the Probation Department or
the Court. If the Guidelines offense level advocated by [any of these entities] is different from
the estimate, the defendant [is not] entitled to withdraw the plea."

(Id.~

3.) The offer also

contained a collateral attack waiver if Petitioner was sentenced at or below 151 months
imprisonment.

(Id.~

4.) Petitioner did not agree to the plea offer from the government by the

expiration date. (Pet., Ex. A at 18 (showing agreement was signed only by the Supervising U.S.
Attorney and no other parties).) Neither party was bound by the foregoing terms.
Jury trial for Petitioner began on October 1, 2007. (Trial Tr. (Dkt. 9-1).) The

Government called Annette Darant and Kim Tyler as witnesses. (Ml) The women had
knowledge of narcotics trafficking in their building at 1550 East New York Avenue and had
signed a petition complaining to the New York City Public Housing Authority. (Id. at 43-44, 6164.) Tyler also testified about an incident where Petitioner threatened to "blast" her, which she
understood to mean "shoot" her. (Id. at 66-67; Police Rep. (Trial Dkt. 107-7).) Tyler reported
this incident to the police. (Trial Tr. at 66-67; Police Rep.)
On October 2, 2007, the second day of trial, Petitioner pled guilty to the three counts of
the Superseding Indictment. (Plea Tr. (Dkt. 9-2) at 110.) Petitioner swore under oath that his
mind was clear and that he understood the court's statements concerning the effects of a guilty
plea. (Id. at 92-93.) Petitioner stated that he was not satisfied with his attorney because they

3

"had a personality clash," but, according the statements of the court on record, the court had
previously resolved this and related issues the day before. (Id. at 94.) The Government listed the
details of each count and the elements that would need to be proven beyond a reasonable doubt
to a jury. (Id. at 97-99.) The court described the rights that Petitioner would waive should he
plead guilty, all of which Petitioner said he understood. (Id. at 100-03.) After discussing the
possible penalties and sentencing associated with all three counts, Petitioner pied guilty to the
charges. (Id. at 103-08, 110.)
A Pre-Sentence Report ("PSR") was issued by the Probation Department, which
calculated Petitioner's offense level as 41. (Opp'n at 7.) Estimating Petitioner to be in criminal
history category I, the PSR advised a sentencing range of 324-405 months imprisonment. (Id.)
The base offense level was 32 plus the following enhancements: (1) a two-point weapon
enhancement pursuant to U.S.S.G. § 2Dl .1 (b)(1 ); (2) a three-point enhancement for Petitioner's
supervisory role in the conspiracy pursuant to U.S.S.G. § 3Bl.l(b); (3) a two-point enhancement
for use of a minor in the distribution of narcotics pursuant to U.S.S.G. § 3Bl.4; and (4) a twopoint enhancement for obstruction of justice for threatening to shoot a witness and tampering
with another potential witness pursuant to U.S.S.G. § 3Cl.1. (Id. at 7-8.) No downward
adjustment was awarded for acceptance of responsibility. (Id. at 8.)
A Fatico hearing was held on June 30, 2009. (Id.) The Government presented the 85
rounds of ammunition that were discovered in Petitioner's bedroom and a photograph from 2003
of Petitioner holding two firearms. (Id.; Evidence Vouchers.) The arresting officer testified that
he recovered these exhibits from apartment 4-A, in addition to other ammunition suitable for
different firearms. (Opp'n at 8; Evidence Vouchers.) One of Petitioner's co-defendants, Darren
Finklea, testified pursuant to a cooperation agreement with the Government, attesting to

4

Petitioner's possession of firearms. (Id. at 8-9.) Finklea stated that Petitioner possessed firearms
to protect himself and his family. (Id.) Finklea also testified that the photograph of Petitioner
holding firearms was taken in apartment 4-A and that Petitioner stored ammunition in the
apartment. (Id. at 9.) A last witness, Special Agent Renee Repasky, testified that Petitioner
placed a telephone call to Jermaine Chadwick, a potential witness for the Government, on
August 5, 2007, and requested that Chadwick provide false information about the narcotics
activity in 1550 East New York Avenue. (Id.; Phone Tr. (Trial Dkt. 107-9).)
On August 10, 2009, the court sentenced Petitioner to 262 months imprisonment,
followed by a five-year term of supervised release. (Sentencing Tr. (Dkt. 9-3) at 18-19.) The
court used a base offense level of 32 and added a two-point weapon enhancement and three-point
enhancement for supervisory role in the conspiracy. (Id. at 7-8.) The court found insufficient
evidence to apply the enhancements for use of a minor or obstruction of justice. (Id. at 8.) At
criminal history category I and a total offense level of 37, the Sentencing Guidelines give a range
of210 to 262 months imprisonment. (Id. at 9.) Due to the severity of the crimes committed by
Petitioner and having considered a sentence above the Guidelines range, the court sentenced
Petitioner to the upper end of the Sentencing Guidelines. (Id. at 18.)
Petitioner appealed his sentence to the Second Circuit on August 10, 2009, pursuant to 18
U.S.C. § 3582(c)(2) and U.S.S.G. § 2Dl.l(c)(2) to retroactively apply a sentence reduction due
to changes in law. (Appeal (Trial Dkt. 123) at 1-2.) The Second Circuit vacated the decision of
this court and remanded for further proceedings. (Mandate (Trial Dkt. 130).) Specifically, the
Second Circuit ordered this court to "make specific findings on whether a gun was possessed
during the relevant offense conduct." (Id. at 4.) The Second Circuit found Petitioner's argument
against the three-point upward adjustment for a supervisory role to be without merit. (!QJ

5

This court held the resentencing on January 24, 20I2. (Resentencing Tr. (Dkt. 9-4).)
Under the Fair Sentencing Act of 20IO, Petitioner's base offense level for a crime involving
cocaine base was lowered from 34 to 28. (Id. at I6.) A three-level enhancement was, once
again, applied for Petitioner's supervisory role in the drug enterprise.

ilil at 31.) The court also

found by a preponderance of the evidence, that the two-level weapon enhancement should be
applied. (Id.)
In finding sufficient evidence to prove Petitioner possessed a weapon in connection with
the relevant offense conduct, the court relied on a confidential informant's observations of
firearms in the apartment during the relevant time period, the testimony of Petitioner's codefendant, Finklea, the large amount of handgun ammunition in Petitioner's bedroom, the
primary use of the apartment to manufacture drugs, and Petitioner's need to defend himself in
light of his involvement with controlled substances. (Id. at 26-30.) The court found this
evidence was consistent with the application of the weapon enhancement, citing § 2D I. I of the
Sentencing Guidelines, because it was not "clearly improbable that the weapon was connected
with the offense involved." (Id. at 30.)
In light of these findings, the court resentenced Petitioner to 135 months imprisonment
following by twelve years of supervised release. (Id. at 48-49.) Petitioner filed an appeal of the
resentencing with the Second Circuit on February 16, 2012. (Notice of Appeal (Trial Dkt. 148).)
Petitioner then filed a motion to withdraw his appeal, which was granted by the Second Circuit
with prejudice. 2 (Mandate (Trial Dkt. 149).) On August 24, 20I2, Petitioner filed the instant
Petition for a Writ of Habeas Corpus. (Pet.)
2

This is sufficient as a prerequisite for Petitioner's claim under § 2255. "There is no requirement that the movant
exhaust his remedies prior to seeking relief under§ 2255. However, the courts have held that such a motion is
inappropriate if the movant is simultaneously appealing the decision." Rule 5, Advisory Committee Notes, Rules
Governing § 2255 Proceedings ( 1976). Petitioner was not permitted to appeal his resentencing further because the

6

II.

STANDARD OF REVIEW
A prisoner who was convicted and is in federal custody may collaterally attack his

sentence by filing a Petition for a Writ of Habeas Corpus. See 28 U.S.C. § 2255(a). The
sentence may be attacked if ( 1) it "was imposed in violation of the Constitution and laws of the
United States," id., (2) "the court was without jurisdiction to impose such a sentence," id., (3) it
"was in excess of the maximum authorized by law," id., or (4) "the sentence is otherwise subject
to collateral attack," id. The defendant must prove that he or she was convicted on the basis of
"an error of law or fact that constitutes a fundamental defect which inherently results in a
complete miscarriage of justice." United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (internal
quotations and citations omitted).
"[B]ecause requests for habeas corpus relief are in tension with society's strong interest
in the finality of criminal convictions, the courts have established rules that make it more
difficult to upset a conviction by collateral, as opposed to direct, attack." Ciak v. United States,
59 F.3d 296, 301 (2d Cir. 1995) (citing United States v. Frady, 456 U.S. 152, 165 (1982)).
Therefore, a defendant must show "both a violation of [his] Constitutional rights and 'substantial
prejudice' or a 'fundamental miscarriage of justice."' Ciafarano v. United States, 585 F. Supp.
2d 360, 368 (E.D.N.Y. 2008) (quoting Ciak, 59 F.3d at 301). However, in a court's application
of these standards, "[a] pleading by a prose litigant must be construed liberally." Thompson v.
Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (emphasis omitted).

Second Circuit granted Petitioner's motion to withdraw his appeal with prejudice. Therefore, at the time Petitioner
filed his Petition, he was not simultaneously appealing his resentence, but had completed his appeals process.

7

III.

POTENTIAL BARS TO PETITIONER'S CLAIMS
A.

Collateral Attack Waiver

As a preliminary matter, the court will address Petitioner's argument that he should not
be bound by the collateral attack waiver found in the plea agreement. (Pet. at 18; Pet., Ex. A ~
4.) The Government never stated that Petitioner should be bound by this waiver. Because
Petitioner never accepted the plea agreement, the court finds that Petitioner is not bound by the
collateral attack waiver contained therein. The court will therefore consider the arguments in his
Petition.
B.

Procedural Bars

When examining a§ 2255 Motion, there are two procedural bars which must be taken
into account. First, a defendant "may not relitigate issues that were raised and considered on
direct appeal." United States v. Perez, 129 F.3d 255, 260-61 (2d Cir. 1997). Second, a
defendant "is also barred from raising claims in her § 2255 motion that she failed to raise on
direct appeal unless she shows cause for the omission and prejudice resulting therefrom."
Bousley v. United States, 523 U.S. 614, 622-23 (1998). There is an exception to the second bar.
An ineffective assistance of counsel claim may be brought in a§ 2255 motion regardless of
whether the defendant raised the claim on direct appeal. See Massaro v. United States, 538 U.S.
500, 504 (2003). Therefore, although Petitioner did not raise an ineffective assistance of counsel
claim on direct appeal, he is not barred from raising that claim in the instant Petition.
IV.

PETITIONER'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
"Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-

bargaining process." Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012). To succeed on an
ineffective assistance of counsel claim, a petitioner must satisfy a stringent two-prong test: (1) he

8

must show that counsel's performance was deficient in that the "counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment," and (2) the petitioner must show that "the deficient performance prejudiced the
defense ... [by producing] errors ... so serious as to deprive the [petitioner] of a fair trial, a trial
whose result is reliable." Strickland v. Washington, 466 U.S. 668, 692-93 (1984); accord
Morales v. United States, 635 F.3d 39, 43 (2d Cir. 2011). The two-prong Strickland test is
"highly demanding." Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). The petitioner bears
the burden of establishing both that his counsel was deficient and that he was prejudiced. See
United States v. Birkin, 366 F.3d 95, 100 (2d Cir. 2004).
Defense counsel has a duty to "communicate formal offers from the prosecution to accept
a plea on terms and conditions that may be favorable to the accused." Missouri v. Frye, 132 S.
Ct. 1399, 1408 (2012). Counsel renders ineffective assistance when failing to advise his client of
an offer or failing to allow his client to consider an offer before it has expired. See id. To prove
prejudice by defense counsel's failure to communicate a plea offer, a defendant has a burden to
establish a reasonable probability that: (1) the defendant "would have accepted the earlier plea
offer had [he] been afforded effective assistance of counsel," id. at 1409, (2) "the end result of
the criminal process would have been more favorable by reason of a plea to a lesser charge or a
sentence of less prison time," id., and (3) "if the prosecution had the discretion to cancel [the plea
offer] or the trial court had the discretion to refuse to accept it, there is a reasonable probability
neither the prosecution nor the trial court would have prevented the offer from being accepted or
implemented," id. The standard for "reasonable probability" is a "probability sufficient to
undermine confidence in the outcome." Strickland, 466 U.S. at 694.

9

A.

Counsel's Performance

Petitioner has the "highly demanding" burden of proving that his counsel's performance
was deficient, see Kimmelman 477 U.S. at 382, and this court finds that Petitioner failed to meet
this burden and cannot succeed on his claim. Petitioner contends that his counsel, Wallenstein,
failed to communicate the Government's offer of a plea agreement and Petitioner was induced
instead to go to trial. (Pet. at 16.) Petitioner offers no evidence of this other than his own
statement that he did not receive the offer. (See id.)
In evaluating Petitioner's claim, the court has four pieces of evidence before it. First is
the plea offer from the government, which provides advisory Sentencing Guidelines. (Pet., Ex.
A.) Second are representations by Petitioner stating that he never received the plea offer from
the Government and that had he received the plea offer, he would have accepted it in a timely
fashion. (Pet. at 16-17.) Third is a declaration signed by Wallenstein which states: ( 1) that
Wallenstein's standard practice was to promptly communicate all plea offers to his clients
(Wallenstein Deel. ii 5), (2) that Wallenstein received the plea offer sometime in early November
2006 GQ,_ if 4), (3) that Wallenstein did not recall precisely when he communicated the offer to
Petitioner but that it was likely at their November 8, 2006, meeting (id.

iii\ 5-6), and (4) that

Wallenstein recalled Petitioner was adamant about his refusal to accept a plea offer carrying a
ten-year mandatory minimum sentence GQ,_ if 7). Lastly, Wallenstein's statement that Petitioner
was unwilling to accept a plea offer containing a ten-year mandatory minimum sentence is
corroborated by the declaration of Jason Jones, Assistant U.S. Attorney and lead prosecutor in
Petitioner's criminal case. (Jones Deel. if 6.) Both Jones, recalling a conversation had with
Wallenstein, and Wallenstein himself, state that an offer containing less than a ten-year

10

mandatory minimum was never offered to Petitioner and that Petitioner was unwilling to accept
an offer containing a ten-year mandatory minimum. (Id.; Wallenstein Deel. if 7.)
The court finds that Petitioner fails to satisfy the burden of proof to show that
Wallenstein's performance as defense counsel was deficient, the first prong of the "highly
demanding" Strickland test. See Kimmelman, 477 U.S. at 382; Strickland, 466 U.S. at 687. On
this record of evidence, the court cannot conclude that Wallenstein did not communicate the plea
offer to Petitioner in a timely fashion. The evidence in the form of Petitioner's assertions is
countered by equally, if not more, convincing contradictory evidence from Wallenstein's
declaration that demonstrates Wallenstein's standard practice in communicating plea offers to
clients and the general timeframe in which he likely communicated the offer to Petitioner.
(Wallenstein Deel. iii! 4-5.) Therefore, Petitioner cannot succeed on an ineffective assistance of
counsel claim because he provided insufficient evidence to prove his allegation that he never
received the plea agreement.
B.

Potential Prejudice

Regarding Strickland's second prong, even if Wallenstein had failed to promptly provide
Petitioner with the plea offer, Petitioner has not demonstrated a reasonable probability that he
would have been prejudiced. Petitioner contends that, had he received the plea offer, he would
have accepted the offer in a timely manner and therefore his offense level would have been
subject to two downward adjustments. (Pet. at 17.) Corroborating evidence from both
Wallenstein and Jones shows that Petitioner would have refused any plea offer providing for a
ten-year mandatory minimum sentence. (Wallenstein Deel. if 7; Jones Deel. if 6.) Because the
plea offer in question included a ten-year mandatory minimum sentence and no other offer was

11

provided by the Government, it is irrelevant whether it was communicated to Petitioner as
Petitioner would have rejected its terms. (Jones Deel., Ex.

A~

1.)

The court need not address whether at sentencing it would have accepted the plea and
sentenced Petitioner accordingly because Petitioner has failed to prove that he himself would
have accepted the offer had he received it in a timely manner. Therefore, Petitioner has not
proved a "reasonable probability," Missouri, 132 S. Ct. at 1408, that he was prejudiced by
Wallenstein's actions.

V.

IMPOSITION OF WEAPON ENHANCEMENT
A sentence may be subject to a weapon enhancement "[i]f a dangerous weapon

(including a firearm) was possessed [during the relevant offense conduct]," causing the level of
the offense conduct to be "increase[d] by two levels." U.S.S.G. § 2Dl.l(b)(l). The weapon
enhancement in § 2D 1.1 (b)(1) "should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense." U.S.S.G. § 2Dl.1, n.3; see also
United States v. Sweet, 25 F.2d 160, 163 (2d Cir. 1994); Hernandez v. United States, Nos. 10CR-149 (PAC), 12-CV-8741(PAC),2013 WL 5903096 at *3 (S.D.N.Y. Nov. 4, 2013) (stating
that a court may infer that a weapon that was kept "in the same location as the drugs seized ...
was connected with the offense").

A.

Subject Matter Jurisdiction

Petitioner contends that because he was not convicted of a weapon offense in violation of
18 U.S.C. § 924(c), this court did not have proper jurisdiction to impose a weapon enhancement
under U.S.S.G. § 2Dl.l(b)(l). (Pet. at 18.) This is not the case. In fact, when a defendant is
convicted of an offense under 18 U.S.C. § 924(c) in addition to an underlying offense, a court is

not permitted to apply a weapon enhancement at sentencing to that underlying offense. See

12

U.S.S.G. § 2K2.4, n.4 ("Do not apply any weapon enhancement in the guideline for the
underlying offense, for example, if (A) a co-defendant, as part of the jointly undertaken criminal
activity, possessed a firearm different from the one for which the defendant was convicted
under 18 U.S.C. § 924(c); or (B) in an ongoing drug trafficking offense, the defendant possessed
a firearm other than the one for which the defendant was convicted under 18 U .S.C. § 924( c).");
cf. United States v. Watts, 519 U.S. 148, 157 (1997) (defendant was acquitted of weapons
charges under § 924(c) and the court was not precluded from finding, by a preponderance of the
evidence, for a weapon enhancement at sentencing). This is, in part, to "avoid unwarranted
disparity and duplicative punishment." U.S.S.G. app. C, amend. 599 (2000). Here, there is no
risk of Petitioner receiving duplicative punishment precisely because he was not convicted and
sentenced for a violation of 18 U.S.C. § 924(c). Accordingly, the court finds that there was
proper jurisdiction to apply the weapon enhancement of two levels for Petitioner's sentencing
and Petitioner's argument here is meritless.
B.

Preponderance of the Evidence

For sentencing purposes, a district court is permitted to take into account disputed facts
which have been "established only by a preponderance of the evidence." United States v.
Concepcion, 983 F.2d 369, 388 (2d Cir. 1992); see also United States v. Booker, 543 U.S. 220
(2005); United States v. Vaughn, 430 F.3d 518, 521 (2d Cir. 2005). Because there was proper
jurisdiction to impose the weapon enhancement, the court is only required to find by a
preponderance of the evidence that a dangerous weapon was possessed during the time of the
relevant conduct from 2004 through 2006. If the court finds that a weapon was located in the
apartment at the time of the offense conduct, the enhancement applies unless the court finds that

13

it was "clearly improbable that the weapon was connected with the offense involved." U.S.S.G.
§ 2Dl.1, n.3.
The court found significant evidence which placed the weapon in the apartment at the
time of the offense conduct. A confidential informant observed firearms in the apartment during
the relevant time period of the offense conduct "on more than one occasion." (Resentencing Tr.
at 29.) A large amount of handgun ammunition was found in Petitioner's bedroom, as was a
photograph of Petitioner holding two firearms. (Opp'n at 8.) The presence of the firearms and
ammunition was corroborated by Finklea, Petitioner's co-defendant, who stated that Petitioner
stored ammunition in the apartment, posed for the photograph in the apartment, and possessed
firearms to protect himself and his family. (Id. at 8-9.) As stated by the court, "[t]here's no need
for ammunition without a gun." (Resentencing Tr. at 29.)
The court also found by a preponderance of the evidence that the firearms were used in
conjunction with the offense conduct and warranted the weapon enhancement. The apartment in
which the ammunition was located was used primarily to manufacture and distribute drugs as a
"place of business," which the court determined from Petitioner's guilty plea to maintaining a
drug premises. (Id. at 29.) This creates a high probability that "one, if not the principal reason
[Petitioner] possessed a gun in apartment 4-A was to protect and further his drug dealing
enterprise," and satisfies the preponderance of the evidence standard. (Id. at 30-31.) This
protection was necessary because of the drug enterprise, not in spite of it. (Id. at 27-28.)
Therefore, the court finds it probable that the ammunition found in the apartment and the
firearm(s)--whieh court inferred to also be present in the apartment based on other evidencewere used in conjunction with the offense conduct. The court finds that the Government

14

established, by a preponderance of the evidence, that a firearm was possessed during the time of
the offense conduct. Therefore, the two-level weapon enhancement was warranted.
C.

Ineffective Assistance of Counsel Claim Relating to Weapons Enhancement

"An attorney's 'failure to make a meritless argument does not amount to ineffective

assistance."' United States v. Noble, 363 F. App'x 771, 773 (2d Cir. 2010) (quoting United
States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999)). As stated, Petitioner's claim that the weapon
enhancement was improperly applied at his sentencing and subsequent resentencing was without
merit. Therefore, Petitioner cannot claim ineffective assistance of counsel based on
Wallenstein's failure to challenge Petitioner's sentence on these grounds.

VII.

CONCLUSION
For the foregoing reasons, the Petition for Writ of Habeas Corpus is DENIED. The Clerk

of Court is directed to enter judgment and close this case.
SO ORDERED.

s/Nicholas G. Garaufis
NICHOLAS G. GARAUFIS ~
United States District Judge

Dated: Brooklyn, New York
July _D_, 2014

15