UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
August 26, 1999
RE: UNITED STATES OF AMERICA V. LUIS ALFONSO OSPINA
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 that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
In the present matter, petitioner's principal contention with respect to his Sixth Amendment argument is that his counsel should have moved for a downward departure pursuant to Section 5K2.0 of the Sentencing Guidelines because, as a deportable alien, he will spend additional time in the custody of the Immigration and Naturalization Services at the conclusion of his sentence.
Pursuant to the Strickland test, petitioner must first show that counsel's failure to request a downward departure fell below an objective standard of reasonableness. Petitioner has not done this to the satisfaction of this Court. Other than asserting that counsel's failure to request a downward departure constitutes ineffective assistance, petitioner cites no persuasive authority in support of this argument. Furthermore, this Court is satisfied that trial counsel's failure to request a downward departure was not objectively unreasonable under the circumstances.
Additionally, petitioner also fails to show actual prejudice resulting from counsel's failure to request a downward departure. Assuming arguendo that his attorney did request a downward departure, petitioner fails to prove that his request would have been granted by this Court. In fact, petitioner does not even contend that he was actually prejudiced by counsel's alleged ineffective assistance. As a result of petitioner's failure to allege or demonstrate actual prejudice, his claim fails to pass muster under the second prong of the Strickland test. For each of the aforementioned reasons, petitioner's Sixth Amendment arguments must fail.
Petitioner's second argument, that this Court failed to recognize petitioner's "extraordinary acceptance of responsibility," is likewise without merit. The Third Circuit has held that: "post-offense rehabilitation efforts, including those which occur post-conviction, may constitute a sufficient factor warranting a downward departure provided that the efforts are so exceptional as to remove the particular case from the heartland in which the acceptance of responsibility guideline was intended to apply." United States v. Sally, 116 F.3d 76 (3d Cir. 1997). However, petitioner has neither alleged nor has he demonstrated that he has taken an "exceptional or extraordinary degree of responsibility" for his participation in the underlying criminal matter.
Therefore, the motion by petitioner Luis Alfonso Ospina to vacate, set aside or correct sentence is DENIED. Accordingly, this case is CLOSED.
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