United States v. Logan

Decision Date23 February 2012
Docket NumberNos. 09–CR–296 (ADS), 10–CV–2993 (ADS).,s. 09–CR–296 (ADS), 10–CV–2993 (ADS).
Citation845 F.Supp.2d 499
PartiesUNITED STATES of America, v. Garrick LOGAN, Defendant. Garrick Logan, Petitioner, v. United States of America, Respondent.
CourtU.S. District Court — Eastern District of New York

OPINION TEXT STARTS HERE

Loretta A. Lynch, United States Attorney for the Eastern District of New York by: John J. Durham, Assistant United States Attorney, Central Islip, NY, Attorneys for the United States.

Grossman, Lavine & Rinaldo by: Paul Rinaldo, Esq., Of Counsel, Key Gardens, NY, Attorneys for Defendant.

Garrick Logan, Morgantown, WV, Pro Se Petitioner.

ORDER

SPATT, District Judge.

Presently before the Court is a petition by the Defendant/Petitioner Garrick Logan (Logan) for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255, and a motion for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2). For the reasons that follow, the Court finds that Logan's petition for a writ of habeas corpus is denied, but that he is eligible for a sentence reduction and that his sentence shall be modified accordingly.

I. BACKGROUND

On April 15, 2009, Garrick Logan was arrested in Hempstead, New York after a vehicle and foot pursuit. The Government's investigation revealed that Logan had supplied or attempted to supply cocaine base to a confidential informant (“CI”) on at least two occasions. First, on February 18, 2009, Logan supplied 4.36 net grams of cocaine base to his co-defendant, Michael Hibbert (“Hibbert”), who then sold the drugs to the Government's CI. Then, on April 15, 2009, Hibbert met again with the CI and offered to sell him another ten grams of cocaine base. The CI gave Hibbert $750, and Hibbert informed the CI that he needed to obtain the cocaine base from his supplier. The FBI agents conducting surveillance then observed Hibbert walk to another area where he made a number of phone calls.

A few minutes later, a Ford Taurus vehicle arrived at the location and Hibbert entered the passenger side of the automobile, which Logan was driving. FBI agents then approached the vehicle, and Logan sped away from the area. FBI agents and other law enforcement agents engaged in a high speed pursuit for several blocks on busy streets that contained other vehicles and pedestrians. Logan eventually stopped the vehicle, and he and Hibbert exited the automobile and attempted to flee on foot. After a short foot pursuit, both men were apprehended. The law enforcement officials observed Logan drop two plastic bags when he exited the vehicle. A chemical analysis revealed that the bags contained a total of 17.7 net grams of cocaine base. Thus, when combining the February and April incidents, Logan was accountable for a total of 22.06 net grams of cocaine base.

Logan had a total of three attorneys between the date of his arrest and his subsequent sentencing. His first attorney, Terrence P. Buckely, Esq. was appointed by the Court on April 21, 2009 pursuant to the Criminal Justice Act (“CJA”). According to the Petitioner, this attorney “showed no interest in preparing for his defense.” (Petition at 5.) Therefore, the Court allowed this counsel to withdraw from the case after making Logan aware that he needed to obtain a paid attorney.

Thereafter, Logan hired Uzmah Saghir to represent him, and she filed her notice of appearance with this Court on June 25, 2009. On June 26, 2009, the Court held a status conference as to Logan, but Saghir did not appear on time. The hearing was delayed several hours until Saghir finally appeared. On July 30, 2009, this Court held another status conference in this matter at 10:00am. However, once again, Saghir did not appear. This Court called her office and left a message, and put the case on for a second call at 2:00pm. However, Saghir still did not appear. The matter was scheduled for a further status conference on August 5, 2009. This Court stated on the record at that time that if Saghir did not appear for the August 5 conference, it would consider Saghir to have abandoned her representation of Logan. Saghir did not respond to communications from this Court or to the Assistant United States Attorney assigned to this case. On August 5, 2009, Saghir was officially terminated as Logan's attorney. By this time, the Court had appointed a second criminal defense attorney from the CJA panel, Richard A. Miller, Esq., to represent Logan.

On September 25, 2009, pursuant to a plea agreement with the Government, Logan eventually pled guilty to a lesser-includedoffense of Count One of the indictment, which charged him with conspiracy to distribute and possess with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The Pre–Sentence Report (“PSR”) filed by the Probation Department found a total drug quantity of 22.06 grams of cocaine base, resulting in a Base Offense Level of 26. In addition, the Defendant was subject to a 2–level enhancement for reckless endangerment during flight per Sentencing Guideline § 3C1.2, resulting in an Adjusted Offense Level of 28. However, because the Defendant pled guilty, there was a three point reduction for acceptance of responsibility, for a Total Offense Level of 25. With a Criminal History Category of II, the guideline range of imprisonment at the time was 63 to 78 months. Under the statutory provisions, the maximum term of imprisonment was 40 years and the minimum term of imprisonment was 5 years. See21 U.S.C. § 841(b)(1)(B).

On February 12, 2010, Logan was sentenced to 63 months in custody and 4 years of supervised release. This Court adopted the PSR without modification, resulting in a Total Offense Level of 25, a Criminal History Category of II, and a custodial guideline range of 63 to 78 months. The Court found that based upon all the circumstances involved, including consideration of the advisory guidelines and the statutory reasons for sentencing, that the minimum guideline range of 63 months was a reasonable sentence. In particular, the Court noted (1) the nature and circumstances of the offense—illegal drug sales followed by reckless endangerment of a high speed chase; (2) the history and characteristics of the Defendant—such as a good employment record and consistent payment of taxes; as well as (3) the need for the sentence imposed, including to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.

On June 28, 2010, Logan commenced this habeas corpus proceeding, filing a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

Effective November 1, 2011, the United States Sentencing Commission (Sentencing Commission) approved part A of Amendment 750, which altered the offense levels in § 2D1.1 of the U.S. Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines Manual”) applicable to crack cocaine offenses (the “Guidelines Amendment). SeeU.S.S.G. § 2D1.1 (2011). In addition, the Sentencing Commission gave this amendment retroactive application. SeeU.S.S.G. § 1B1.10(c) (2011).

On November 2, 2011, Logan moved for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2), relying on the Guidelines Amendment. On December 1, 2011, the Government filed an opposition to Logan's motion for a sentence reduction. The Government acknowledged that the Defendant was eligible for a sentencing modification, but that the Court should exercise its discretion not to do so after considering the factors in 18 U.S.C. § 3553(a).

The Court will now address, in turn, both the petition for a writ of habeas corpus and the motion for a sentence reduction.

II. HABEAS CORPUS PETITION

Logan raises two grounds in his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. First, he contends that both his retained counsel and his court-appointed counsel were ineffective. Second, he asserts that the Court should enter an order to arrest judgment, pursuant to Rule 34 of the Federal Rules of Criminal Procedure (Rule 34), due to an alleged error in the indictment. Relatedly, Logan claims that his court-appointed counsel's failure to file such a motion in a timely fashion contributed to his ineffective assistance of counsel.

A. Whether Logan's Petition is Procedurally Barred

The Government argues that Logan's petition is procedurally barred, because he agreed in his plea agreement “not to file an appeal or otherwise challenge by petition pursuant to 28 U.S.C. § 2255 ... in the event that the Court imposes a term of imprisonment of 71 months or below.” (Gov't Ex. 2 at ¶ 4.) Logan was sentenced to 63 months, and accordingly, the Government argues he has waived his right to challenge his sentence.

“It is by now well established that a knowing and voluntary waiver of the right to appeal is generally enforceable.” United States v. Hernandez, 242 F.3d 110, 113 (2d Cir.2001); see also United States v. Haynes, 412 F.3d 37, 39 (2d Cir.2005); United States v. Morgan, 406 F.3d 135, 137 (2d Cir.2005); United States v. Garcia, 166 F.3d 519, 521 (2d Cir.1999); United States v. Chen, 127 F.3d 286, 289 (2d Cir.1997); United States v. Yemitan, 70 F.3d 746, 747 (2d Cir.1995); United States v. Salcido–Contreras, 990 F.2d 51, 53 (2d Cir.1993) (“In no circumstances ... may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement.”).

A defendant may also waive his right to bring a petition pursuant to section 2255. See Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195–96 (2d Cir.2002); Garcia–Santos v. United States, 273 F.3d 506, 508–09 (2d Cir.2001); Muniz v. United States, 360 F.Supp.2d 574, 577 (S.D.N.Y.2005). However, “such waivers are strictly and narrowly construed against the government, in recognition of its greater bargaining power in negotiating and the fact that the government usually drafts plea agreements.” Yushuvayev v. United States, 532...

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