The opinion of the court was delivered by: Mary L. Cooper, District Judge
The matter comes before this Court on Carlos Vega's pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.*fn1 The underlying criminal matter in this Court was United States v. Carlos Ignacio Vega, Crim. No. 99-131, aff'd, 285 F.3d 256 (3d Cir. 2002). The instant petition seeks to vacate, set aside or correct the sentence, claiming that petitioner was deprived of his constitutional right to effective assistance of counsel which caused him to miss the benefits of the Intensive Confinement Center ("ICC") Program provided under 18 U.S.C. § 4046, because counsel failed to move for a downward departure for that purpose at sentencing. (Pet. Aff. ¶ 2.)
Having reviewed the materials submitted on this motion, together with the record of the underlying criminal case, we find that petitioner is not entitled to relief on the claim asserted. Accordingly, the motion under § 2255 will be denied.*fn2
Petitioner was found guilty at trial on a charge of conspiracy to distribute and possess with intent to distribute more than one kilogram of heroin in violation of 21 U.S.C. § 841(a)(1) and 846, an offense that carried a mandatory ten-year minimum. At sentencing he received the benefit of the safety valve pursuant to USSG § 2D1.1(b)(6), as well as a 2-point downward adjustment for minor role in the offense. (Sen. H'g at 4-15.) His resulting guideline range for imprisonment, in criminal history level I, was 78 to 97 months. (Id. at 16-17.)*fn3 He was sentenced to a term of 78 months. (Judg. at 2.) He took a direct appeal, represented by his retained trial counsel, and there asserted various trial errors. The Court of Appeals affirmed in a published opinion filed on April 1, 2002. United States v. Vega, 285 F.3d 256 (3d Cir. 2002). He filed this timely motion under 28 U.S.C. § 2255 on March 3, 2003. 28 U.S.C. § 2255(1); see Kapral v. United States, 166 F.3d 565, 570 (3d Cir. 1999).
Petitioner's sentence in this case contained a recommendation that "[a]t the appropriate time, defendant be favorably considered for the Shock Incarceration Program (boot camp)." (Judg. at 2.) This was based upon the following statement by this Court at sentencing:
I will send this sentence along with a recommendation
that . . . if at the appropriate time he becomes
eligible for boot camp assignment, and if he requests
it, this Court would recommend him to be favorably
considered for that.
(Sen. H'g at 22-23.)
He states in this motion that in or about August 2002, when he was near the last 30 months of his imprisonment sentence, he inquired about placement in the ICC Program and was informed by the Bureau of Prisons that he was not eligible because his 78 month sentence exceeded the mandated 60 months or less eligibility criteria observed by the Bureau. Thus, despite the judicial recommendation to be favorably considered for that program, petitioner was extremely disappointed to learn that the length of his sentence precluded his eligibility. (Pet. Aff. ¶¶ 3-7.) He brings this motion contending that his counsel rendered ineffective assistance in failing to advise the Court of this 60-month limitation on ICC Program eligibility, and in failing to move for a downward departure to that level so that he could achieve eligibility.
This Court initially reviewed petitioner's motion, see Rules Governing Section 2255 Proceedings for U.S. District Courts, Rule 4(b), and issued a Miller notice on March 13, 2003. See United States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999). By letter filed on April 22, 2003, petitioner responded that he wanted the motion to be ruled upon as filed. This Court then directed the respondent to file an Answer, and it did so on April 28, 2003.
A. The Applicable Statute
A prisoner in custody under sentence of a [federal]
court . . . claiming the right to be released upon the
ground that the sentence was imposed in violation of
the Constitution or laws of the United States, or that
the court 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, may move the court which imposed
the sentence to vacate, set aside, or correct the
This Court has jurisdiction under 28 U.S.C. § 1331.
Petitioner has the burden of establishing each of the claims in the Petition. See United States v. Abbott, 975 F. Supp. 703, 705 (E.D.Pa. 1997) (citing United States ex rel. Freddie M. ...