Sepulveda v. U.S.

• Decision Date: 28 September 1999
• Docket Number: Civil Action No. 98-3151(MLC).
• Parties: Lisander SEPULVEDA, Petitioner, v. UNITED STATES of America, Respondent.
• Court: New Jersey Supreme Court

Page 633

69 F.Supp.2d 633

Lisander SEPULVEDA, Petitioner, v. UNITED STATES of America, Respondent.

Civil Action No. 98-3151(MLC).

United States District Court, D. New Jersey.

September 28, 1999.

Lisander Sepulveda, White Deer, PA, pro se.

Russel N. Jacobson, Assistant United States Attorney, Newark, NJ, for U.S.

MEMORANDUM OPINION

COOPER, District Judge.

This matter comes before the Court on the motion of pro se petitioner Lisander Sepulveda to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.¹ The underlying criminal case in this Court was United States v. Lisander Sepulveda and Margarita Corsino, Crim. No. 97-265(MLP), filed May 6, 1997. For the reasons set forth herein, issued without oral argument pursuant to Fed. R.Civ.P. 78, the Court will deny petitioner's motion.

I. BACKGROUND

Petitioner was indicted in a one-count indictment charging him and his co-defendant with conspiracy to import from Colombia more than 500 grams of cocaine, a Schedule II narcotic drug controlled substance, contrary to 21 U.S.C. §§ 952(a) and 960(a)(1), in violation of 21 U.S.C. § 963. (Gov.App., Ex. 2.)²

The offense conduct of petitioner and his co-defendant, as set forth in the record of the criminal case, is not in dispute and may be summarized as follows. On April 30, 1997 a passenger arrived on a flight from Colombia to Newark airport who was discovered to have concealed in his suitcase and in two aerosol cans within the suitcase a substance which field-tested positive for cocaine. Upon being arrested by U.S. Customs agents, he agreed to cooperate in a controlled delivery of the contraband. Under the supervision of the agents, the cooperator contacted Colombia for further instructions and was directed to a hotel in Manhattan, New York. (PSR ¶¶ 7, 8.) The agents and the cooperator traveled to the hotel early in the morning of May 1, 1997, where the cooperator placed another call to the unknown co-conspirator in Colombia. That evening, petitioner and his co-defendant, Margarita Corsino, arrived at the hotel room. The cooperator told them that the cocaine was inside the suitcase and the two aerosol cans, and petitioner then took possession of the suitcase and Corsino took the cans. Both departed the hotel room and were arrested by the Customs agents. (Id. ¶¶ 9, 10.)

The evidence against defendants consisted of the following: (1) the physical items, including the substance which was confirmed by laboratory analysis to be approximately 3 kilograms of cocaine; (2) the testimony of the cooperator; (3) a videotape that was secretly made by Customs with the consent of the cooperator, showing defendants in the hotel room conversing with the cooperator and taking delivery of the suitcase and aerosol cans; and (4) the testimony of the arresting officers to confirm possession of the items by the defendants. (Id.; Gov. Br. at 3.)

Petitioner was indicted on May 6, 1997, along with his co-defendant, Ms. Corsino. (App.Ex. 2.) Petitioner was represented throughout his criminal case in this Court by retained counsel, Olga M. Arandia, an attorney admitted in the states of New York and New Jersey. (Arandia Aff.) Ms. Arandia conducted all of her communications with petitioner in his native language, Spanish, in which she is fluent. (Id. ¶ 5, n. 1.)

On August 18, 1997, petitioner appeared at a Rule 11 hearing and entered a plea of guilty to the one-count Indictment, pursuant to a Plea Agreement dated August 15, 1997. (App.Ex. 3, 5.) Petitioner was sentenced under the offense statutes, 21 U.S.C. §§ 952(a) and 960(a)(1), and the Guidelines. See U.S. Sentencing Guidelines Manual ("USSG" or "Guidelines") (Nov.1995).³ At his sentencing hearing on January 20, 1998, he was sentenced to the mandatory minimum imprisonment of 60 months, together with 4 years supervised release and a fine of $1,000.⁴ (App.Ex. 7.) He filed no direct appeal.

Petitioner filed this motion pro se on July 2, 1998, seeking to vacate his guilty plea and sentence pursuant to 28 U.S.C. § 2255 on grounds of ineffective assistance of counsel. (Pet. at 4-12.) The motion was timely within the statutory one-year limitation period. 28 U.S.C. § 2255(1); see Kapral v. United States, 166 F.3d 565, 570 (3d Cir.1999).

We made an initial review of the Petition under Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts ("Section 2255 Rules"), and directed the filing of an Answer. The Answer and exhibits filed by the government include an affidavit by petitioner's counsel in the criminal case, Ms. Arandia. (Gov.Br.Ex. A.) In view of the expanded record thus presented by the government, we afforded petitioner an opportunity to respond. Cf. Section 2255 Rule 7(c) (where court directs submission of an expanded record, the opposing party shall be afforded an opportunity to admit or deny its correctness). Petitioner did not further respond.

Having reviewed the materials thus submitted, together with the complete record of the underlying criminal case, we find that they show conclusively that petitioner is not entitled to relief on the claims asserted. Accordingly we will decide the matter without an evidentiary hearing, explaining our reasons as we address each of petitioner's asserted grounds for relief.

II. DISCUSSION

A. Petitioner's Allegations

Section 2255 of Title 28, United States Code, provides that a prisoner in custody under sentence of a federal court may move 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. This Court has jurisdiction under 28 U.S.C. § 1331. Petitioner has the burden of establishing any claim asserted in the Petition. See United States v. Abbott, 975 F.Supp. 703, 705 (E.D.Pa.1997).

The instant Petition seeks to vacate, set aside or correct the sentence, claiming that the guilty plea was not voluntary due to ineffective assistance of counsel in the following respects: (1) counsel allegedly failed to recognize that petitioner was eligible for the safety valve provision of the Guidelines, § 5C1.2; and (2) petitioner entered his guilty plea based on advice of counsel that he would not receive more than a 46 to 57 month sentence. (Pet. at 4-13.)

B. Standard for Ineffective Assistance Challenge to Guilty Plea

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 assistance' of counsel." United States v. Day, 969 F.2d 39, 42 (3d Cir.1992) (quoting Strickland v. Washington, 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.

466 U.S. at 687, 104 S.Ct. 2052. As with any other claim under § 2255, the burden of proving ineffective assistance of counsel is on the petitioner. Virgin Islands v. Nicholas, 759 F.2d 1073, 1081 (3d Cir. 1985).⁵

The appropriate measure of attorney performance is "reasonableness under prevailing professional norms." Strickland, 466 U.S. 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. at 689, 104 S.Ct. 2052; see also Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir.1999); 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, 710 (3d Cir.1989). The evaluation of the objective reasonableness of counsel's performance must be made "from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

The second prong of the Strickland test requires the petitioner to show that counsel's deficient performance prejudiced the defense. Thus, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691, 104 S.Ct. 2052. The petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

The Strickland Court further held that both prongs must be established in order to meet the claimant's burden, and that if either prong is not satisfied the claim must be rejected, stating:

Although we have discussed the performance component of an ineffectiveness...