JOSEPH N. LAPLANTE, District Judge.
This case involves the right to effective assistance of counsel in the context of asserting an arguably novel theory in plea negotiations or before the court. Angel Baez-Gil pleaded guilty to conspiracy to possess with intent to distribute cocaine, see 21 U.S.C. §§ 841 and 846, and conspiracy to import cocaine, see 21 U.S.C. §§ 952, 960, and 963. He subsequently filed a pro se motion attacking his conviction and sentence. See 28 U.S.C. § 2255. After the United States moved to dismiss, the court appointed counsel to represent Baez-Gil. He then amended the petition to distill it to a single contention: that defense counsel provided ineffective assistance by failing to raise, during plea negotiations or at sentencing, the issue of whether a co-conspirator, who died after a cocaine-filled package she had ingested while transporting the drug burst, had died from the "use" of the drug. See Mot. to Amend (document no. 10) at 2; Obj. to Mot. of U.S. to Dismiss (document no. 11) at 3. This issue was critical, Baez-Gil argues, because her death from the "use" of the drug subjected him to a mandatory minimum sentence of 20 years' imprisonment, whereas he would otherwise have faced a mandatory minimum sentence of only 5 years. See 21 U.S.C. §§ 841(b)(1)(B), 960(b)(2).
Following Baez-Gil's amendment, the parties agreed to a briefing schedule by which they would submit this matter to the court for decision. See Status Report (document no. 14); Assented-to Mot. to Permit Supp. Briefing (document no. 15). Having carefully considered the parties' submissions and heard oral argument, the court denies Baez-Gil's petition. Even assuming the proper interpretation of the statutory term "use" excludes the ingestion of a drug in order to transport it, as Baez-Gil argues, that is a novel proposition that has been expressly rejected by one court and not endorsed by any authority this court knows of. Case law is uniform in holding that counsel does not fail to provide effective assistance by "failing to contemplate, or choosing not to advance, [a] novel theory, " United States v. Davis , 406 Fed.Appx. 268, 271 (10th Cir. 2010), so Baez-Gil has not shown his sentence was imposed in violation of his right to the effective assistance of counsel.
I. Applicable legal standard
Under 28 U.S.C. § 2255, a prisoner in federal custody may move for relief from his conviction and sentence on the grounds "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." Where no evidentiary hearing is held on a § 2255 motion, the court "take[s] as true the sworn allegations of fact set forth in the petition unless those allegations are merely conclusory, contradicted by the record, or inherently incredible." Owens v. United States , 483 F.3d 48, 57 (1st Cir. 2007) (internal quotation marks and citation omitted).
Baez-Gil and several others conspired to import cocaine into the United States from the Dominican Republic. Among the conspirators were twin sisters Nelly and Mally Rodriguez, who agreed to transport the cocaine into the United States by swallowing a number of "fingers"-which the court understands to be either balloons or the snipped-off fingers of rubber gloves- each containing about 10 grams of cocaine. Pursuant to this plan, the sisters each swallowed about 40 fingers in Santo Domingo, the capital and largest city of the Dominican Republic, and flew to Boston, Massachusetts. From there, they traveled by taxi to the Park View Inn in Salem, New Hampshire, where they drank laxatives to assist in passing the fingers.
Not long after consuming the laxatives, Mally fell ill, began vomiting, and lost consciousness. After the Salem police were summoned to the inn, they transported Mally to the hospital, where she was pronounced dead. The medical examiner determined the cause of death to be acute cocaine intoxication.
The grand jury indicted Baez-Gil and his co-conspirators for conspiracy to possess cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and 846. It subsequently handed up a superseding indictment charging the same defendants with an additional count of conspiracy to import cocaine into the United States, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(2)(B)(ii), and 963. Each count of the superseding indictment alleged that "the use of said cocaine result[ed] in the death of Mally Rodriguez, " a fact that, if proven, would have subjected Baez-Gil to a 20-year mandatory minimum sentence under 21 U.S.C. §§ 841(b)(1)(B) and 960(b)(2).
On September 29, 2009, Baez-Gil, who was represented by retained counsel, appeared before this court and entered pleas of guilty to both counts of the superseding indictment. He entered those pleas pursuant to a plea agreement with the prosecution, acknowledging that an element of both offenses was "that death resulted from the use of the cocaine, " and that each offense carried a mandatory minimum term of 20 years and a maximum term of life imprisonment. The agreement further stipulated that, absent the prosecution's filing of a motion under 18 U.S.C. § 3553(e), "the defendant should be sentenced to serve 240 months imprisonment to be followed by five (5) years of supervised release on Counts One and Two concurrently." It is undisputed that neither of Baez-Gil's two attorneys advised him that he should not plead guilty to the "death resulting" element of the offenses because a victim's "intentional introduction of encased fingers' into her alimentary canal solely for the purpose of transporting the fingers' is not the use' of cocaine as that term is contemplated in the drug statute."
The court sentenced Baez-Gil on December 31, 2009. Application of the United States Sentencing Guidelines yielded a sentencing range of 168-210 months, which was raised to 240 months in accordance with the mandatory minimum just mentioned. See U.S.S.G. § 5G1.1(b). The court granted the prosecution's motion for a downward departure, see 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1, and sentenced Baez-Gil to a term of 180 months on each of the counts of conviction, to be served concurrently. Baez-Gil, arguing that the 180-month sentence was unreasonable, appealed his sentence to the Court of Appeals, which affirmed. See United States v. Baez-Gil, No. 10-1104 (1st Cir. Apr. 11, 2011) (unpublished disposition).
The Sixth Amendment to the United States Constitution guarantees a criminal defendant "the Assistance of Counsel for his defence." U.S. Const. amend. VI. The right to assistance of counsel, as set forth in the Amendment, "is the right to the effective assistance of counsel." Strickland v. Washington , 466 U.S. 668, 686 (1984) (emphasis added; internal quotation marks and citation omitted). As is the case with other constitutional rights, the government can take actions that violate this right, e.g., by interfering "with the ability of counsel to make independent decisions about how to conduct the defense." Id. at 686. Uncommonly, though, counsel may itself deprive a defendant of this right "simply by failing to render adequate legal assistance, " that is, assistance that is "reasonable considering all the circumstances, " including "prevailing professional norms." Id. at 686-88.
A petitioner alleging that counsel rendered constitutionally inadequate representation bears "a highly demanding and heavy burden." Knight v. Spencer , 447 F.3d 6, 15 (1st Cir. 2006) (quoting Williams v. Taylor , 529 U.S. 362, 393 (2000)). He must "show, by a preponderance of the evidence, that [his] trial counsel's conduct fell below the standard of reasonably effective assistance and that counsel's errors prejudiced the defense." González-Soberal v. United States , 244 F.3d 273, 277 (1st Cir. 2001) (citing Strickland , 466 U.S. at 694; emphasis in original). This two-part test "applies to ...