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SERRANO v. U.S.

August 30, 2005.

HORACIO JOSE SERRANO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



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

OPINION

Horacio Jose Serrano ("Serrano") is a prisoner confined at the Low Security Correctional Institution in White Deer, Pennsylvania. Proceeding pro se, Serrano timely filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 on or about September 2, 2004,*fn1 based on ineffective assistance of counsel and breach of the plea agreement. The United States of America ("Government") filed an Answer opposing the Petition on October 27, 2004. For the reasons set forth, the petition for habeas corpus relief is denied.

I. FACTUAL BACKGROUND

  On January 10, 2003, Serrano and co-defendant Maria Arroyave ("Arroyave") were arrested in possession of 2.112 net kilograms of heroin. On February 21, 2003, Serrano signed a plea agreement with the United States Attorney for the District of New Jersey, in which he waived his right to file an appeal, collateral attack, writ, or motion after sentencing, including a motion under 28 U.S.C. § 2255. On April 14, 2003, Serrano waived his indictment and pled guilty to conspiracy to distribute and possess with intent to distribute more than one kilogram of heroin, contrary to 21 U.S.C §§ 841(a)(1) and 841(b)(1)(A), in violation of 21 U.S.C. § 846. On September 22, 2003, this Court sentenced Serrano to 46 months imprisonment with five years supervised release, a fine of $600 and a special assessment of $100. Serrano now brings this petition pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel by his attorney Richard Verde ("Verde") and breach of the plea agreement by the Government.

  II. DISCUSSION

  A. Standard of Review

  28 U.S.C. § 2255 provides relief to a federal prisoner seeking release from incarceration on any one of the following grounds: (1) the imposed sentence violates the Constitution or laws of the United States, (2) the court did not have jurisdiction to impose the sentence, (3) the sentence exceeds the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255. A petition for habeas relief under § 2255 will be granted "only if the sentence results in a `fundamental defect which inherently results in a complete miscarriage of justice' or `an omission inconsistent with the rudimentary demands of fair procedure.'" United States v. Cannistraro, 734 F. Supp. 1110, 1119 (D.N.J. 1990) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L. Ed. 2d 417 (1962)).

  B. Waiver of Right to Appeal

  As an threshold matter, the Court must determine whether Serrano's waiver of appeal must be enforced. Serrano's plea agreement stipulated that "this office and Horatio [sic] Jose Serrano waive certain rights to file an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255." (Plea Ag. at 4.) The Third Circuit Court of Appeals has held that "[w]aivers of appeals, if entered into knowingly and voluntarily, are valid, unless they work a miscarriage of justice." United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001). In order to determine whether there has been a "miscarriage of justice," a court should consider "the clarity of the error, its gravity, its character . . . the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result." Id. at 573 (quoting United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001)).

  Serrano does not challenge the validity of the plea agreement nor does he argue that his waiver was involuntary. Rather, Serrano claims that the waiver is void because: (1) the Government breached the plea agreement during sentencing; and (2) his attorney did not provide him with effective assistance of counsel. The Court addresses the merits of the underlying charges in both claims in order to determine whether enforcing the waiver will result in a miscarriage of justice.

  C. Breach of the Plea Agreement

  Serrano alleges that the Government breached the plea agreement in two ways: (1) by arguing for an upward departure during sentencing using information prohibited under U.S.S.G. § 1B1.8 (Mot. at 5); and (2) by failing to fully disclose to the court all aspects of Serrano's cooperation (Pet'r Mem. Supp. at 7).

  1. The Government's alleged request for an upward departure

  At Serrano's sentencing, the Government stated:
I would bring one point to the Court's attention in fashioning an appropriate sentence within the Guidelines. The Defendant in this case, he brought up the product that was concealed in a plastic-like state from Florida up to New Jersey and then, in essence, served as the chemist who particularly engaged in the chemical extraction process to return that hard-like plastic substance back to a power-like [sic] state. I think just very briefly, that's a different situation than courts frequently deal with, having not only the person be the courier but the person who serves as the individual ...

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