Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Restrepo v. United States


November 15, 1999


[CRIM. NO. 97-28-06 (JBS)]

The opinion of the court was delivered by: Simandle, District Judge:




This matter comes before the Court on petitioner Javier Restrepo's application for post-conviction relief pursuant to 28 U.S.C. § 2255. Upon petitioner's October 6, 1997, plea of guilty to the charge of conspiring to possess and distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1), and pursuant to a downward adjustment recognizing his minor role in the conspiracy, as well as a departure under the "safety valve" provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, this Court, on January 23, 1998, sentenced petitioner to serve fifty-seven months of imprisonment.

In the present application, petitioner asserts two grounds for § 2255 relief. First, petitioner claims that he was denied effective assistance of counsel in violation of the Sixth Amendment. Second, petitioner claims that this Court erred when it denied petitioner a further reduction in sentencing by finding that his role in the conspiracy was minor, as opposed to minimal. Petitioner requests that this Court vacate, set aside, or otherwise correct the fifty-seven month sentence imposed upon petitioner pursuant to his conviction. Petitioner also requests that the court hold an evidentiary hearing to review his claims.This petition was not filed until March 1, 1999, on the day it was received by the Clerk's office. The petition is thus untimely because it was not filed within one year of the date when the judgment of conviction became final as required by 28 U.S.C. § 2255, namely January 23, 1998. Moreover, even if petitioner's delay in filing is somehow excused, this Court finds petitioner's claims for § 2255 relief to be without merit, and as such, now denies the petitioner's requests for an evidentiary hearing and for sentencing relief, for the following reasons.

I. Timeliness

Under 28 U.S.C. § 2255, a one-year limitation applies to a motion for § 2255 relief. The statute provides that this limitation period shall run from the latest of-

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through exercise of due diligence. 28 U.S.C. § 2255.

Restrepo's judgment of conviction became final on January 23, 1998. His time to file for § 2255 relief expired one year later (in the absence of any exceptional circumstances listed above) on January 23, 1999. Petitioner dated his petition on February 25, 1999, and it was filed with Clerk of this Court on March 1, 1999. Even if the assumption is made that he mailed it from prison on February 25, 1999, and that the "mailbox rule" recognizes that as the filing date for purposes of this statute of limitations, the petition was more than one month out of time. The petition will therefore be dismissed for untimeliness under § 2255.

Although the petition is untimely on its face, the Court has nonetheless considered the grounds raised in the petition for § 2255 relief in the event that petitioner was entitled to some sort of equitable tolling not apparent upon this record.

II. Facts and Procedural History

On July 23, 1997, a Superceding one-count Indictment was filed against Petitioner Javier Restrepo and seven other defendants, charging them with conspiring to possess and distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). (Presentence Report at 3 (Nov. 18, 1997), revised (Dec. 12, 1997) ("PSR")). *fn1 According to the Indictment, in January of 1997, Jorge Restrepo, a friend of petitioner, arranged for the transport of 150 kilograms of cocaine, using a person who was actually a government informant. (Id. at ¶¶ 18-25.) The cocaine was picked up by the informant at a stash house in Van Nuys, California and transported to the 18 Wheeler Bar & Grill ("18 Wheeler"), a truck stop in South Kearney, New Jersey. The delivery to Jorge Restrepo was scheduled to take place on January 20, 1997.

On the morning of January 20, 1997, defendant Hernando Celis met with an individual known only as "Carlos" at a McDonalds in Union City, New Jersey. (Id. at ¶ 33.) There, Celis received approximately $150,000 in cash that was to be used for payment for the delivery of the cocaine scheduled to take place at the truck stop later that day. Later that morning, Celis, Jorge Restrepo and petitioner all met at the truck stop. Id.

In a parking lot adjacent to the truck stop, all three men gathered in petitioner's truck tractor. Id. While inside the tractor, in petitioner's presence, Celis gave Jorge Restrepo the $150,000 in cash. Id. Of this amount, $30,000 was put into a map holder to be later delivered by petitioner to Jorge Restrepo's mother. Id. In addition, while sitting inside the petitioner's tractor, the three men discussed a hidden compartment in petitioner's truck that was previously installed for the express purpose of concealing cocaine. Id. Petitioner had received $500 for allowing the compartment to be installed. (10/06/97 Plea Tr. at 28.)

Ultimately, Jorge Restrepo, Celis and petitioner entered into the 18 Wheeler truck stop, where Jorge Restrepo and Celis negotiated and conducted the transaction. (PSR at ¶ 38.) After Jorge Restrepo and Celis received the cocaine, agents of the Federal Bureau of Investigation descended upon the truck stop and arrested the three men. Id.

Petitioner entered a guilty plea to the Superseding Indictment before this Court on October 6, 1997. In the plea agreement, petitioner and respondent stipulated to petitioner as a "minor" participant in the charged conspiracy warranting a two-point decrease in the petitioner's offense level under § 3B1.2 of the Sentencing Guidelines. (PSR at ¶ 12.) See U.S.S.G. § 3E1.1(a). However, petitioner reserved his right to argue for an additional role reduction at sentencing on the theory that the petitioner's role in the conspiracy was actually "minimal," rather than minor. *fn2 (PSR at ¶ 12.)

Petitioner was sentenced on January 23, 1998, to fifty-seven months in prison. Under 21 U.S.C. § 841(b), conspiring to possess and distribute more than five kilograms of cocaine carries a mandatory minimum term of imprisonment of ten years. Petitioner's counsel argued extensively at sentencing for a further one or two point reduction in the petitioner's sentence below the minor role level. (See 1/23/98 Sentencing Tr. at 7-11.) Among other downward adjustments to petitioner's sentence, see §§ 3E1.1 - 3E1.2, this Court granted petitioner a two-point reduction in his Sentencing Guideline offense level for his minor role in the offense. (See 1/23/98 Sentencing Tr. at 47.) Petitioner's counsel at sentencing also argued successfully for the application of the "safety valve" provision in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, which then permitted the Court to impose a sentence below the otherwise applicable 120-month mandatory minimum. The indicated Guideline Range became fifty-seven to seventy-one months, determined from a Total Offense Level of 25, and a Criminal History Category of I. Considering all of the submissions and arguments relevant to the Guidelines, this Court sentenced petitioner to a term of imprisonment on the lowest end of the applicable fifty-seven to seventy-one month sentencing range. See id. at 6-7, 46-47. Petitioner never appealed this sentence.

II. Discussion

Title 28 U.S.C. § 2255 permits a prisoner in custody under sentence of federal court to move the court to correct an erroneous sentence. See Hill v. United States, 368 U.S. 424, 426 (1962). Under § 2255, the sentencing court is authorized to discharge or resentence a defendant if it concludes that it "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." See Hill, 368 U.S. at 426-27 (quoting 28 U.S.C. § 2255). However, "[s]section 2255 does not afford a remedy for all errors that may be made at trial or sentencing." United States v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993) (citing United States v. Addonizio, 442 U.S. 178 (1979)). The Supreme Court has found that a claim of legal error, unlike a claim of jurisdictional or constitutional error, is not cognizable under § 2255, unless the alleged legal error raises a "fundamental defect which inherently results in a complete miscarriage of justice." Addonizio, 442 U.S. at 185 (quoting Hill, 368 U.S. at 428).

A. An Evidentiary Hearing Is Not Necessary

As an initial matter, an evidentiary hearing is not necessary for disposition of the instant petition. Under Rule 8(a) of the rules governing § 2255 proceedings, if the district court "upon a review of those proceedings and of the expanded record" determines that "an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice dictates." 28 U.S.C. foll. § 2255, Rule 8(a) (1994). Whether to order an evidentiary hearing in connection with the review of a § 2255 motion is committed to the sound discretion of the district court. United States v. Day, 969 F.2d 39, 41 (3d Cir. 1992) (citing Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). In exercising such discretion, the court must accept the truth of the factual allegations, unless they are clearly frivolous on the face of the existing record. Forte, 865 F.2d at 62. If the prisoner's allegations raise an issue of material fact, the court is required to hold an evidentiary hearing in order to make findings of fact and conclusions of law, unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. See Walker v. Johnson, 312 U.S. 275, 285 (1941); United States v. Constanzo, 625 F.2d 465, 468 (3d Cir. 1980). Moreover, the "district court need not hold a hearing where the record as it stands decisively answers the Section 2255 motion." United States v. Leiby, 820 F.2d 70, 73 (3d Cir. 1987).

The record before the Court is complete and detailed. Moreover, petitioner's concerns raised in the present application were raised and argued at the prior proceedings in this matter. As these concerns have already been fully considered by the Court, no further discovery is needed, and the Court is able to conclusively make its determinations based upon petitioner's application, respondent's answer and the extensive transcripts of the 1997 and 1998 hearings. Because the files and records in this case provide all the information necessary to decide petitioner's § 2255 motion, and, as discussed below, show that the petitioner is entitled to no relief, an evidentiary hearing is unnecessary.

B. Petitioner Was Not Denied Effective Assistance of Counsel in Violation of the Sixth Amendment.

Petitioner claims that he was denied effective assistance of counsel because his counsel failed to "argue vigorously" for a downward adjustment of three to four levels pursuant to U.S.S.G. § 3B1.2. (Pet'r's Br. at 4.) See supra, note 2. Notwithstanding the fact that petitioner is attempting to impermissibly re-litigate claims that are properly reserved for an appeal and not for a habeas corpus petition, see United States v. Frady, 456 U.S. 152, 165 (1981), discussed below, petitioner's argument is without merit.

The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. See Kimmelman v. Morrison, 477 U.S. 365, 377 (1986) (citations omitted). The Supreme Court established the criteria for determining ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). In Hill v. Lockhart, 474 U.S. 52 (1985), the Court held that the Strickland test applies to cases involving guilty pleas. Under Strickland and Hill, in order to prevail on a claim of ineffective assistance of counsel in connection with a guilty plea, the movant must demonstrate that: (1) his or her counsel's performance was deficient, and (2) there is a reasonable probability that but for counsel's deficient performance, the movant would not have pled guilty and instead would have requested a trial. *fn3 See Hill, 474 U.S. at 58-59.

The burden of proving a claim of ineffective assistance of counsel rests upon the movant. Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1081 (3d Cir. 1985). When examining the performance of counsel, courts must avoid "the distorting effects of hindsight" and measure the deficiency of counsel's performance by an "objective standard of reasonableness." Strickland, 466 U.S. at 687-89. Thus, the movant must prove that counsel's representation was unreasonable under prevailing professional norms, and "that the challenged action was not sound strategy." Kimmelman, 477 U.S. at 384 (citation omitted). The movant must rebut the strong presumption that the assistance of counsel falls within the range of reasonable professional representation. See Kimmelman, 477 U.S. at 384; Strickland, 466 U.S. at 689. In the instant matter, the record belies petitioner's claim that his counsel's argument was "brief" or that his counsel failed to "argue vigorously" in advocating a further reduction in petitioner's sentence. (See Pet'r's Br. at 4.) Petitioner's counsel raised an objection in the Presentence Report for the purpose of reserving the right to argue for an additional role reduction at sentencing. (See PSR at ¶ 12.) At the sentencing hearing, petitioner's counsel argued extensively and effectively for the two-point minor role reduction, and extensively--though unsuccessfully--for further reduction. Petitioner ignores the fact that not only did his counsel secure a two-point minor role reduction, but also that his counsel secured a sentence that corresponded to a much smaller amount of narcotics than was really involved in the conspiracy--something that no other defendant in this case received. Contrary to petitioner's contentions, such advocacy cannot plausibly be characterized as "brief" or lacking in vigor. Rather, the advocacy was fully effective, thoughtful and thorough.

Second, it cannot be shown that any alleged deficiency, even if true, prejudiced petitioner's defense. This is because, regardless of his lawyer's performance, petitioner was not entitled to a minimal role reduction based on his participation in this conspiracy.

Under the Sentencing Guidelines, Application Note 2 of § 3B1.2 provides that:

It is intended that the downward adjustment for a minimal participant will be used infrequently. It would be appropriate, for example, for someone who played no other role in a very large smuggling operation than to offload part of a single marihuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction for a small amount of drugs. U.S.S.G. § 3B1.2, Application Note 2.

After carefully considering all of the submissions and arguments, this Court found that petitioner was involved in at least three separate facets of the conspiracy, and that this involvement precluded the possibility that his role was minimal. (See 1/23/98 Sentencing Tr. at 13-15.) First, petitioner agreed to allow his truck to be used in various ways to further the goals of the conspiracy. Id. Second, he agreed to act as a money courier for some of the narcotics proceeds of the conspiracy. Id. Third, he stayed to support Jorge Represto at the 18 Wheeler as a major cocaine deal was being transacted. Id. This is far more substantial role than a defendant who "played no other . . . than to off-load part of a single marijuana shipment" or the defendant who "was recruited as a courier for a single smuggling transaction involving a small amount of drugs." See id. (referencing § 3B1.2, Application Note 2). Because petitioner's sentence accurately reflected his involvement in the underlying crime, the sentence was not erroneous or deficient. Thus, petitioner has not shown that there is a reasonable probability that, but for the alleged deficiency, the result of the sentencing hearing would have been different. See Hill, 474 U.S. at 58-59. The Court therefore finds that petitioner was not denied effective assistance of counsel in violation of the Sixth Amendment, and, as such, the petition is denied on this ground.

C. Petitioner's Claims Have Been Procedurally Waived

The fundamental defect in the instant petition is that petitioner is seeking to re-litigate the issues that were already presented to the trial court. Habeas corpus may not be used as a substitute for direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1981). A petitioner, whether a state or federal prisoner, who failed to properly raise his claim(s) on direct review may not seek collateral review of those claims unless the petitioner "establishes 'cause' for the waiver and shows 'actual prejudice resulting from the alleged . . . violation.'" Reed v. Farley, 512 U.S. 339, 354 (1994) (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)); see also Frady, 456 U.S. at 167-68.

A petitioner may also avoid defaulting on his or her claim(s) by showing that the case is of the same nature as those that the Supreme Court has labeled a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). In order to ensure that the fundamental miscarriage of justice exception would remain "rare" and be applied only in the "extraordinary case," while at the same time ensuring that relief would be extended to those who are truly deserving, the Court has explicitly tied the exception to the petitioner's innocence. See Schlup v. Delo, 513 U.S. 298, 321 (1995).

In the present matter, petitioner has not shown sufficient cause for his failure to appeal this Court's decision. The issue of petitioner's role in the conspiracy was raised, argued and decided by this Court at sentencing. Petitioner has offered no reason for his failure to appeal the determination that his role in the conspiracy was not minimal. *fn4 Further, to the extent petitioner wished to appeal the length of his sentence, any such appeal would assuredly have been without merit. Under U.S.S.G. § 5C1.2's "safety valve," this Court granted a downward departure from the otherwise mandated sentence of 120 months to fifty-seven months, and the extent of such departure is not reviewable. United States v. Parker, 902 F.2d 221, 222 (3d Cir. 1990).

Additionally, the "fundamental miscarriage of justice" exception does not apply to this case, as petitioner does not allege that he is innocent of the crime to which he pled guilty. See Schlup, 513 U.S. at 321. Therefore, petitioner's claims are all procedurally barred and his petition will be dismissed on this ground as well.

IV. Conclusion

For the reasons stated herein, petitioner's application for sentencing relief pursuant to 28 U.S.C. § 2255 is hereby denied without an evidentiary hearing. The accompanying Order is entered.

JEROME B. SIMANDLE United States District Judge


This matter having come before the Court on the petition of Javier Restrepo for post-conviction relief pursuant to 28 U.S.C. § 2255; and the Court having considered the submissions of the parties and the records of Restrepo's conviction and sentencing; and for the reasons stated in the Opinion of today's date;

It is this day of November, 1999, hereby ORDERED that petitioner's request for an evidentiary hearing be, and hereby is, DENIED, and;

IT IS FURTHER ORDERED that the petition of Javier Restrepo for relief from his conviction and sentence, pursuant to 28 U.S.C. § 2255 be, and hereby is, DENIED.

JEROME B. SIMANDLE United States District Judge

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.