Irrizari v. U.S.

• Decision Date: 16 July 2001
• Docket Number: No. CIV. A. 00-4133.,No. CR. 98-0203.,CIV. A. 00-4133.,CR. 98-0203.
• Citation: 153 F.Supp.2d 722
• Parties: Jose IRRIZARI, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Pennsylvania

153 F.Supp.2d 722

Jose IRRIZARI, Petitioner, v. UNITED STATES of America, Respondent.

No. CIV. A. 00-4133.

No. CR. 98-0203.

United States District Court, E.D. Pennsylvania.

July 16, 2001.

COPYRIGHT MATERIAL OMITTED

Jeremy H. Gonzalez Ibrahim, Law Offices of Jeremy H. Gonzalez Ibrahim, Philadelphia, PA, Michael J. Holston, Drinker Biddle & Reath LLP, Philadelphia, PA, Jose Irrizair, White Deer, PA, pro se, for defendant.

MEMORANDUM

GILES, Chief Judge.

I. Introduction

Petitioner Jose Irrizari, charged in a five count indictment, pled guilty on June 3, 1998 to Count one, conspiracy with intent to distribute cocaine and heroin in violation of 21 U.S.C. § 846. Counts two, three, four, and five were dismissed pursuant to a plea agreement with the government. On September 30, 1998, Jose Irrizari was sentenced to a term of imprisonment of 262 months, 10 years supervised release, a $750.00 fine, and a $100.00 assessment. The third circuit affirmed the judgment of the district court on August 18, 1999.

Now before the court is Jose Irrizari's pro se petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the following grounds (1) ineffective assistance of counsel; (2) violation of Rule 11 of the Federal Rules of Criminal Procedure; and (3) Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). For the following reasons, the petition is denied without hearing.

II. Factual Background

At his change of plea hearing, in his plea agreement, in his pre-sentence report, and at his sentencing hearing, Irrizari was correctly informed that he faced a statutory maximum penalty of life imprisonment. The court incorrectly stated that his statutory mandatory minimum sentence was twenty years. In fact, he faced a mandatory minimum of ten years imprisonment.¹ However, he was informed of the correct sentencing guideline range in his pre-sentence report, (Pre-sentence Report at ¶ 53), and at his sentencing, (Sentencing Hr'g Tr. at 9), and ultimately he received a sentence at the lowest end of the guideline range and did not receive a "statutory sentence."

The court determined that Irrizari was a career offender under U.S. SENTENCING GUIDELINES MANUAL § 4B1.1 and as a career offender who was convicted of a crime with a statutory maximum sentence of life imprisonment, Irrizari had an adjusted guideline range of 262 to 327 months. He was sentenced to 262 months. Irrizari never challenged his status as a career offender or the guideline range.

The third circuit affirmed the judgment, rejecting Irrizari's arguments that the government should have moved for a U.S. SENTENCING GUIDELINES MANUAL § 5K1.1 downward departure under the sentencing guidelines and that his guilty plea was not knowing, voluntary, and intelligent because he believed that he was facing a maximum sentence of 20 months rather than 20 years.

On August 15, 2000, Petitioner filed the instant habeas petition. The court ordered the government to answer the petition on March 19, 2000 and the government filed its answer on April 16, 2001.

IV. Discussion

A. Legal Standard for a Hearing

In determining whether Petitioner has raised an issue of material fact that necessitates a hearing, the third circuit has long recognized that a pro se petitioner's pleadings should be liberally construed to do substantial justice. See Lewis v. Attorney General, 878 F.2d 714, 722 (3d Cir. 1989).

The question of whether to order an evidentiary hearing on a 28 U.S.C. § 2255 motion is left to the discretion of the district court. In exercising that discretion, the district court must accept the truth of the defendant's factual allegations unless they are clearly frivolous on the basis of the existing record. See Government of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.1989). The court must determine whether the petitioner's claims, if proven, would entitle him to relief and then consider whether an evidentiary hearing is needed to determine the truth of the allegations. See Government of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574 (3d Cir.1994); United States v. Essig, 10 F.3d 968, 976 (3d Cir.1993) (If a prisoner's § 2255 petition raises an issue of material fact, the district court must hold a hearing to determine the truth of the allegations).

The third circuit stated in Essig that a court should decide whether a petitioner has raised an issue of material fact that necessitates a hearing by using a two step inquiry. Essig, 10 F.3d at 976. First, if the petitioner is raising an issue for the first time, the court should inquire whether petitioner's failure to raise any objection at sentencing or on direct appeal constitutes a procedural waiver. Id. Second, if there is no waiver, the court should then inquire whether petitioner has alleged an error serious enough to warrant consideration under § 2255. Id. Only if these two prongs are met does the district court have to hold a hearing to determine if the factual allegations are true.

Essig notes that if the error is waived then the court does not reach the question whether the error is serious enough to permit collateral review under § 2255. Id. at 976-77. In terms of the seriousness of the error, the third circuit has stated that "[h]abeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." United States v. DeLuca, 889 F.2d 503, 506 (3d Cir.1989) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)).

A petitioner is procedurally barred under § 2255 from bringing any claims on collateral review which could have been, but were not, raised on direct review. See Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); United States v. Biberfeld, 957 F.2d 98, 104 (3d Cir.1992). Once claims have been procedurally defaulted, the petitioner can only overcome the procedural bar by showing "cause" for the default and actual "prejudice" from the alleged error or that he is "actually innocent." Bousley, 523 U.S. at 621-22, 118 S.Ct. 1604; United States v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). "Cause" consists of "something external to the petitioner, something that cannot be fairly attributable to him," Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1990), and "prejudice" means that the alleged error "worked to the petitioner's actual and substantial disadvantage." Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

B. Ineffective Assistance of Counsel

Petitioner claims that trial counsel was ineffective for the following reasons:² (1) failing to object to the application of a sentencing enhancement under 21 U.S.C. § 851 which increased Petitioner's statutory penalties due to a prior felony drug conviction since the government did not provide adequate notice of its intention to seek the sentencing enhancement; (2) failing to ascertain that Petitioner was the person in the prior conviction used to enhance his sentence; (3) failing to object when the court did not engage Petitioner in the 21 U.S.C. § 851(b) colloquy before applying the sentencing enhancement; (4) failing to object to Petitioner's sentence since it exceeded the most lenient statutory maximum sentence for a conspiracy to distribute controlled substance; (5) giving erroneous advice on the consequences of a guilty plea; and (6) allowing the district court, without objection, to sentence Petitioner according to 21 U.S.C. § 841(b)(1)(A) when he did not possess enough drugs to be sentenced under that provision.

Even though Petitioner did not raise an ineffective assistance of counsel claim on direct appeal, these claims are not barred from collateral review. In general an ineffective assistance claim which was not raised on direct appeal is not deemed procedurally defaulted for purposes of habeas review and such a claim is properly raised for the first time in the district court under § 2255. See United States v. Garth, 188 F.3d 99, 107 n. 11 (3d Cir. 1999).³ Thus, the court considers these claims in turn.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two prong test to determine if counsel was constitutionally ineffective. First, the defendant must establish that counsel's performance was deficient—counsel made errors so serious that counsel was not functioning as "counsel" guaranteed by the Sixth Amendment. Id. at 687, 104 S.Ct. 2052. When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. at 687-88, 104 S.Ct. 2052. Attorney competence is to be measured by "reasonableness under prevailing professional norms." Id. at 688, 104 S.Ct. 2052. Second, the defendant must show that he was actually prejudiced. Id. at 694, 104 S.Ct. 2052. This prong requires that the defendant show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Petitioner cannot meet this high burden on any of the claims discussed below.

1. 21 U.S.C. § 851 Enhancement Claim

Petitioner argues that counsel was ineffective for failing to object to the application of a sentencing enhancement, pursuant to an information filed under 21 U.S.C. § 851(a)(1), which increased his statutory penalties due to a 1991 prior felony drug conviction.⁴ Specifically, he claims counsel was ineffective for (1) failing to point out that the government did not provide adequate notice of its intention to seek the sentencing enhancement; (2) failing to ascertain that Petitioner was the...