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UNITED STATES AMERICA v. NINO (05/16/89)

submitted: May 16, 1989.

UNITED STATES OF AMERICA
v.
NINO, VICTOR. VICTOR M. NINO, APPELLANT



Appeal from the United States District Court for the District of Delaware, D.C. Criminal No. 86-00084-01.

Author: Van Dusen

VAN DUSEN, Senior Circuit Judge

In this case we must decide whether the United States District Court for the District of Delaware abused its discretion by dismissing the habeas corpus petition of petitioner-appellant, Victor Nino, without holding an evidentiary hearing. This habeas corpus petition asserted that petitioner's prison sentence must be vacated because he was deprived of his constitutional right to effective assistance of counsel due to his attorney's failure to file a Fed.R.Crim.P. 35(b) motion for reduction of sentence and/or that petitioner's conviction must be overturned because he was deprived of his constitutional right to effective assistance of counsel due to his attorney's failure to advise him about the deportation consequences of entering a guilty plea. For the reasons that follow, we conclude that the district court did not abuse its discretion and, therefore, we will affirm its judgment.

I.

On November 28, 1986, petitioner pled guilty in the United States District Court for the District of Delaware to one count of possession of cocaine with intent to distribute. This plea was pursuant to a written agreement, and was apparently motivated in large part by the fact that petitioner was caught by law enforcement officials with twenty-five pounds of cocaine in the car he was driving, and, after being given his Miranda warnings, confessed to a Delaware state police corporal and two Drug Enforcement Administration officers his knowledge of the presence of the cocaine in the car and involvement in a scheme to transport it from Miami to New Jersey in return for $4,000. Thereafter, petitioner was sentenced by the district court to, inter alia, ten years in prison. Petitioner's conviction was affirmed by this court on direct appeal.

On July 22, 1988, petitioner wrote a letter to the sentencing judge asking for a reduction in his sentence. The judge treated the letter as a Fed.R.Crim.P. 35(b) motion for reduction of sentence and denied it as untimely.*fn1

On October 24, 1988, petitioner filed a habeas corpus motion to vacate sentence pursuant to 28 U.S.C. § 2255. This motion alleged that petitioner had been deprived of his constitutional right to effective assistance of counsel because his attorney (1) failed to file a timely Rule 35(b) motion for reduction of sentence, and (2) did not advise him about the deportation consequences of pleading guilty. It asserted that if the court found for petitioner on ground (1), his sentence should be vacated, and if the court found for petitioner on ground (2), his conviction should be overturned. This motion was denied on November 8, 1988. No evidentiary hearing was granted.

Petitioner appeals, arguing that the district court erred by denying the motion without an evidentiary hearing.

II.

A.

28 U.S.C. § 2255 allows a prisoner to file a habeas corpus motion with the sentencing court alleging that his or her sentence was imposed in violation of the Constitution. If the court finds for the prisoner, it may, inter alia, resentence the prisoner in accordance with the Constitution or set the conviction aside, as is appropriate. 28 U.S.C. § 2255. When a prisoner files a habeas corpus motion pursuant to 28 U.S.C. § 2255, the district court is required to grant the prisoner an evidentiary hearing on the matter unless the "motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief." Id. The decision as to whether the files and records of the case conclusively show that the prisoner is entitled to no relief is within "the sound discretion of the district court." United States v. Williams, 615 F.2d 585, 591 (3d Cir. 1980).

The Sixth Amendment to the Constitution provides that in criminal prosecutions the accused shall have the right to the assistance of counsel for his defense. The Supreme Court has held that this right entails the right to effective assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 771 n. 14, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970). The Supreme Court has also held that in order for a convicted defendant to show that counsel's assistance "was so defective as to require reversal of a conviction or death sentence," the prisoner must show (1) that counsel's representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-96, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

B.

We turn now to petitioner's first argument, which is that his sentence should be vacated because his attorney's failure to file a Rule 35(b) motion for reduction of sentence deprived him of his constitutional right to effective assistance of counsel. This circuit recently left open the question of whether the second Strickland prong (the requirement that the prisoner show prejudice) applies to cases which do not seek to overturn a conviction but seek to vacate a sentence, as appellant does here. United States v. Golden, 854 F.2d 31, 32 (3d Cir. 1988). This court apparently concluded that because the vacation of a sentence is ...


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