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Sadio v. United States

United States District Court, D. Connecticut

August 31, 2017

OKEIBA SADIO, Petitioner,


          Alvin W. Thompson United States District Judge

         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. First, he 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 level. 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.


         On December 2, 2009, a federal grand jury returned an Indictment against Sadio and sixteen others charging various narcotics offenses. 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. In 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. In July 2010, the grand jury returned a twelve-count Second Superseding Indictment against the defendant and four remaining co-defendants. 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 841(b)(1)(A).

         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. On December 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. The PSR placed the defendant in Criminal History Category VI because he had accumulated a total of 22 criminal history points. 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 months.

         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. He 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 conviction. 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 § 2255 motion.” See 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 prejudice.” 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). “The 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.” Campino v. 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 economy.” Id. “ [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 (1992)).

         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 (1977)). “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 ...

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