Vega v. U.S., Civil Action No. 03-900 (MLC).
| Decision Date | 12 June 2003 |
| Docket Number | Civil Action No. 03-900 (MLC). |
| Citation | 269 F.Supp.2d 528 |
| Parties | Carlos Ignacio VEGA, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of New Jersey |
Carlos Ignacio Vega, Federal Prison Camp, Lewisburg, PA, Petitioner Pro Se.
Chris Gramiccioni, United States Attorney's Office, Newark, NJ, for Respondent.
The matter comes before this Court on Carlos Vega's pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.1 The underlying criminal matter in this Court was United States v. Carlos Ignacio Vega, Crim. No. 99-131, affd, 285 F.3d 256 (3d Cir.2002). The instant petition seeks to vacate, set aside or correct the sentence, claiming that petitioner was deprived of his constitutional right to effective assistance of counsel which caused him to miss the benefits of the Intensive Confinement Center ("ICC") Program provided under 18 U.S.C. § 4046, because counsel failed to move for a downward departure for that purpose at sentencing. (Pet.Aff.¶ 2.)
Having reviewed the materials submitted on this motion, together with the record of the underlying criminal case, we find that petitioner is not entitled to relief on the claim asserted. Accordingly, the motion under § 2255 will be denied.2
1. BACKGROUND
Petitioner was found guilty at trial on a charge of conspiracy to distribute and possess with intent to distribute more than one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846, an offense that carried a mandatory ten-year minimum. At sentencing he received the benefit of the safety valve pursuant to USSG § 2D1.1(b)(6), as well as a 2-point downward adjustment for minor role in the offense. (Sen. H'g at 4-15.) His resulting guideline range for imprisonment, in criminal history level I, was 78 to 97 months. (Id. at 16-17.)3 He was sentenced to a term of 78 months. (Judg. at 2.) He took a direct appeal, represented by his retained trial counsel, and there asserted various trial errors. The Court of Appeals affirmed in a published opinion filed on April 1, 2002. United States v. Vega, 285 F.3d 256 (3d Cir.2002). He filed this timely motion under 28 U.S.C. § 2255 on March 3, 2003. 28 U.S.C. § 2255(1); see Kapral v. United States, 166 F.3d 565, 570 (3d Cir.1999).
Petitioner's sentence in this case contained a recommendation that "[a]t the appropriate time, defendant be favorably considered for the Shock Incarceration Program (boot camp)." (Judg. at 2.) This was based upon the following statement by this Court at sentencing:
I will send this sentence along with a recommendation that ... if at the appropriate time he becomes eligible for boot camp assignment, and if he requests it, this Court would recommend him to be favorably considered for that.
He states in this motion that in or about August 2002, when he was near the last 30 months of his imprisonment sentence, he inquired about placement in the ICC Program and was informed by the Bureau of Prisons that he was not eligible because his 78 month sentence exceeded the mandated 60 months or less eligibility criteria observed by the Bureau. Thus, despite the judicial recommendation to be favorably considered for that program, petitioner was extremely disappointed to learn that the length of his sentence precluded his eligibility. (Pet.Aff.¶¶ 3-7.) He brings this motion contending that his counsel rendered ineffective assistance in failing to advise the Court of this 60-month limitation on ICC Program eligibility, and in failing to move for a downward departure to that level so that he could achieve ehgibility.
This Court initially reviewed petitioner's motion, see Rules Governing Section 2255 Proceedings for U.S. District Courts, Rule 4(b), and issued a Miller notice on March 13, 2003. See United States v. Miller, 197 F.3d 644, 652 (3d Cir.1999). By letter filed on April 22, 2003, petitioner responded that he wanted the motion to be ruled upon as filed. This Court then directed the respondent to file an Answer, and it did so on April 28, 2003.
II. DISCUSSION
Under 28 U.S.C. § 2255:
A prisoner in custody under sentence of a [federal] court ... claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside, or correct the sentence.
This Court has jurisdiction under 28 U.S.C. § 1331.
Petitioner has the burden of establishing each of the claims in the Petition. See United States v. Abbott, 975 F.Supp. 703, 705 (E.D.Pa.1997) (citing United States ex rel. Freddie M. Johnson v. Johnson, 531 F.2d 169, 174 (3d Cir.1976)).
Upon review of the papers submitted in support of and in opposition to the motion, and the relevant materials contained in the record of the underlying criminal matter, this Court finds that an evidentiary hearing is not required. See Rules Governing Section 2255 Proceedings for U.S. District Courts, Rule 8(a); Gov't of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir.1989). Therefore, we accept the petitioner's factual allegations as true, unless the record establishes that they are clearly frivolous. United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992); Forte, 865 F.2d at 62.
A petitioner is barred from collaterally attacking the 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). To avoid the resulting procedural bar, a petitioner generally must prove "both (1) `ause' 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, or "actual innocence." Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998).
"A showing of ineffectiveness of counsel which rises to the level of a constitutional deprivation can ... constitute the type of prejudice that will excuse procedural default." United States v. Sanders, 165 F.3d 248, 250 (3d Cir.1999) (citations omitted). The Third Circuit has clearly stated its general preference that claims of ineffective assistance be addressed in the first instance by the district court under a § 2255 motion. See, e.g., United States v. Tobin, 155 F.3d 636, 643 (3d Cir.1998); 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).
Petitioner asserts his claim under the theory of ineffective assistance of counsel. 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." Day, 969 F.2d at 42 (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.
Strickland, 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. Gov't of V.I. v. Nicholas, 759 F.2d 1073, 1081 (3d Cir. 1985).
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); 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....
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...to seek an inapplicable downward departure constitutes neither unreasonable performance by counsel nor prejudice. Vega v. U.S., 269 F.Supp.2d 528, 536 (D.N.J.2003). F. Petitioner claims his counsel erred by not raising the defenses of duress and mistake of law. He maintains that "prolonged ......
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