United States District Court, D. Connecticut
RULING ON MOTION TO VACATE, SET ASIDE OR CORRECT
W. Thompson United States District Judge
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
FACTUAL AND PROCEDURAL BACKGROUND
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).
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
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.
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.
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.
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) .
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).
§ 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.
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)).
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 ...