Scibetta v. U.S.
| Decision Date | 20 November 1998 |
| Docket Number | Civil Action No. 97-2633 (MLC). |
| Parties | Dominick SCIBETTA, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | New Jersey Supreme Court |
Jerome A. Ballarotto, Trenton, NJ, for Petitioner.
Laura J. Kaplan, Asst. U.S. Atty., U.S. Attorney's office, Newark, NJ, for Respondent.
This matter comes before the Court on the motion of pro se petitioner Dominick Scibetta to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. As set forth in this Memorandum Opinion, the Court is of the view that defendant has presented good grounds for the Court to conclude that his sentence was calculated improperly under the Guidelines, and that petitioner has met his burden of establishing ineffective assistance of counsel limited to that issue.
For this reason, the Court will appoint counsel to represent petitioner in this proceeding, and will afford the parties an opportunity to address the sentencing issue which is discussed and analyzed in this Memorandum Opinion. No order adjudicating the matter will be entered until the parties have had an opportunity to present their further arguments to the Court.
Petitioner and three co-defendants were indicted in a one-count Indictment filed on September 7, 1995. The Indictment charged that on or about November 4, 1991, at Union City, New Jersey, the defendants conspired to obstruct, delay and affect commerce by robbery, in violation of 18 U.S.C. § 1951, a Hobbs Act offense. He was convicted by jury verdict rendered on February 12, 1996.1
Petitioner received a sentence of 34 months imprisonment and three years of supervised release, with waiver of any fine. The sentence was within the Guideline range of 33 to 41 months, as calculated in the Presentence Investigation Report ("PSR"), which was approved by the Court without objection by either party. (Sent. Hr'g Tr. at 2-3, 11-12.)2 That calculation was based upon Section 2B3.1(a) of the United States Sentencing Guidelines ("USSG" or "Guidelines"), which assigned a base offense level of 20, with no specific offense or other adjustments, and a criminal history category of I. (PSR ¶¶ 31-41, 44, 65.)
Petitioner filed a timely appeal of his conviction and sentence, but the appeal was not perfected and was administratively dismissed by consent on August 28, 1996. Petitioner timely filed the present motion under 28 U.S.C. § 2255 on May 13, 1997.3 The motion presents no factual issues requiring an evidentiary hearing.4
Section 2255 of Title 28, United States Code, provides that a prisoner in custody under sentence of a federal court may move before the court which imposed the sentence to vacate, correct, or set aside a 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.
28 U.S.C. § 2255. The instant Petition seeks to vacate, set aside or correct the sentence on the ground that petitioner should have been sentenced under USSG § 2X1.1, which pertains to certain conspiracies, rather than under the robbery guideline, § 2B1.3. (Pet. ¶¶ 12A, 12B; Pet. Reply Br. at 6-11.) Petitioner asserts that if § 2X1.1 is applicable, then under the facts of his case he should have been entitled to a three-level downward adjustment pursuant to § 2X1.1.1(b)(2). (Id.) That Guideline section provides in pertinent part:
PART X OTHER OFFENSES
1. CONSPIRACIES, ATTEMPTS, SOLICITATIONS
§ 2X1.1 Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline)
(a) Base Offense Level: The base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.
(b) Specific Offense Characteristics
....
(2) If a conspiracy, decrease by 3 levels, unless the defendant or a co-conspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the substantive offense or the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control.
Petitioner claims that the failure to raise this issue at sentencing and on appeal constituted ineffective assistance of counsel, entitling him to relief on his § 2255 motion. (Pet. ¶ 12B.) Subsequent to filing the Petition Scibetta moved to amend to assert additional grounds for relief, but he withdrew most of those allegations during the briefing process and we have determined that the remaining issue lacks merit.5 Accordingly, we will direct our attention to the Guideline issue raised in the Petition.
Petitioner is barred from collaterally attacking his sentence pursuant to 28 U.S.C. § 2255 so far as that attack is based upon alleged errors that could have been, but were not, raised on direct appeal. See United States v. Frady, 456 U.S. 152, 162-63, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993). Defendant could have, but did not, raise on direct appeal his claim regarding the calculation of his sentence under the Guidelines. Therefore, that claim is procedurally barred. To avoid the bar, defendant must prove "both (1) `cause' excusing his ... procedural default, and (2) `actual prejudice' resulting from the errors of which he complains." Frady, 456 U.S. at 168, 102 S.Ct. 1584.
Where, as here, a petitioner presents an issue in his § 2255 motion which was not raised at trial or on direct appeal, the petitioner must show both cause and prejudice for his waiver to be excused. United States v. Biberfeld, 957 F.2d 98, 104 (3d Cir.1992) (citing McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)); Essig, 10 F.3d at 976-79 ( Frady); United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994) ().
"[C]ause under the cause and prejudice test must be something external to the petitioner that cannot be fairly attributable to him...." Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In order to show prejudice, a petitioner "must show that the trial judge's error did more than create a possibility of prejudice: the error must be shown to have `worked to his actual and substantial disadvantage.'" Henry v. United States, 913 F.Supp. 334, 336 (M.D.Pa.) (quoting O'Halloran v. Ryan, 704 F.Supp. 70, 74 (E.D.Pa. 1989)), aff'd, 96 F.3d 1435 (3d Cir.1996).
A petitioner need not, however, demonstrate cause and prejudice when he raises a claim of ineffective assistance of counsel initially in a § 2255 motion. The Third Circuit has clearly stated its preference that such claims be addressed in the first instance by the district court under a § 2255 motion. See United States v. Nahodil, 36 F.3d 323, 326 (3d Cir.1994); United States v. DeRewal, 10 F.3d 100, 103-04 (3d Cir.1993), cert. denied, 511 U.S. 1033, 114 S.Ct. 1544, 128 L.Ed.2d 196 (1994); see also Hernandez v. United States, No. 94-60, 1998 WL 554942 at *4 (D.Del. Aug. 13, 1998) (); United States v. Reed, No. 96-6425, 1997 WL 117029 at *3 (E.D.Pa. Mar.11, 1997) (same). Petitioner here asserts that the alleged error in sentencing was caused by ineffective assistance of counsel. (Pet. ¶ 12B.) This argument requires that the Court analyze both the underlying claim, and the issue of whether counsel was ineffective and whether that failure was prejudicial. See, e.g., United States v. Abbott, 975 F.Supp. 703 (E.D.Pa.1997) ().
The Sixth Amendment provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to "reasonably effective counsel." Day, 969 F.2d at 42 (quoting Strickland v. Washington ington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The Supreme Court in Strickland has set forth a two-pronged test for evaluating claims of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
The appropriate measure of attorney performance is "reasonableness under prevailing professional norms." Id. at 688, 104 S.Ct. 2052. A defendant asserting a claim of ineffective assistance of counsel must "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690, 104 S.Ct. 2052. Courts must recognize the strong presumption that counsel has rendered adequate assistance and that all significant decisions were made in the exercise of reasonable professional judgment. Id.; see also Reese v. Fulcomer, 946 F.2d 247, 256-57 (3d Cir.1991), cert. denied, 503 U.S. 988, 112 S.Ct. 1679, 118 L.Ed.2d 396 (1992); United States v. Gray, 878 F.2d 702,...
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