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September 28, 1999


The opinion of the court was delivered by: 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.*fn1 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.


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.)*fn2

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).*fn3 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.*fn4 (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.


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, ...

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