The opinion of the court was delivered by: Nicholas H. Politan, U.S.D.J.
CHAMBERS NICHOLAS H. POLITAN DISTRICT JUDGE
MARTIN LUTHER KING JR. FEDERAL BUILDING & U.S. COURTHOUSE 50 WALNUT ST, ROOM 5076 P.O. BOX 999 NEWARK, N.J. 07101-0999
ORIGINAL ON FILE WITH CLERK OF THE COURT
This matter comes before the Court on the motion by petitioner Luis Alfonso Ospina to vacate, set aside or correct a sentence pursuant to 28 U.S.C. § 2255. The Court has decided the matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated herein, the motion by petitioner Luis Alfonso Ospina to vacate, set aside or correct a sentence is DENIED. Accordingly, this case is CLOSED.
On April 29, 1997, the United States Government filed a three-count criminal indictment charging petitioner Luis Alfonso Ospina ("petitioner") and his co-defendant, Carlos Andres Tamayo, with conspiracy to distribute and possession with the intent to distribute approximately one kilogram of heroin in violation of 21 U.S.C. § 841(a)(1) and § 846.
On July 23, 1997, petitioner signed a plea agreement with the United States to Count One of the indictment. Therein, the United States agreed to the dismissal of the remaining counts at sentencing. On August 6, 1997, petitioner entered a guilty plea. On September 15, 1998, this Court granted the Government's § 5K1.1 departure motion and sentenced petitioner to a term of imprisonment of 40 months, a five-year period of supervised release and ordered that petitioner pay a special assessment fee in the amount of $100.00.
On March 2, 1999, petitioner filed the subject petition for relief pursuant to 28 U.S.C. § 2255 wherein petitioner asserts two claims: (1) ineffective assistance of counsel due to the failure of defense counsel to request a downward departure which would take account of the additional time in custody awaiting deportation and (2) this Court failed to recognize petitioner's "extraordinary acceptance of responsibility" and, therefore, his sentence warrants a greater departure than this Court originally granted.
In order to prevail on a claim of ineffective assistance of counsel, the court must determine "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). "There are countless ways to provide effective assistance in any given case." See id. at 689. A reviewing court must be highly deferential to counsel's performance, must eliminate from its analysis the distorting effects of hindsight and must evaluate counsel's challenged conduct from counsel's perspective at the time he acted. See Kimmelman v. Morrison, 477 U.S. 365, 382 (1986).
In determining whether petitioner has a valid ineffective assistance of counsel claim, the court must engage in a two-prong analysis. First, the court must consider if petitioner has proven that counsel's performance was so grossly deficient so as to deny the petitioner his Sixth Amendment right to counsel. See Strickland, 466 U.S. at 667. To establish that counsel's performance was deficient, petitioner must first show that counsel's representation fell below "an objective standard of reasonableness." See id. at 668.
The second prong of the Strickland test requires the court to determine whether petitioner has also proven that he was prejudiced as a result of the deficient performance of his attorney. See id. at 687. To show prejudice, petitioner must prove that the errors of the attorney were "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." See id. The petitioner must show that there is "a reasonable probability ...