The opinion of the court was delivered by: Freda L. Wolfson United States District Judge
Presently before the Court is Petitioner Isaac Rivera's ("Petitioner" or "Rivera") motion to vacate, set aside or correct his 216 month sentence pursuant to 28 U.S.C. § 2255. Petitioner asserts: (1) that the United States committed prosecutorial misconduct by refusing to submit a downward departure motion pursuant to U.S.S.G. § 5K1.1; and (2) that his counsel was ineffective by failing to challenge the Government's refusal to file a downward departure motion. Respondent United States of America ("Respondent" or the "Government") moves to dismiss Petitioner's motion. For the following reasons, the Court denies Petitioner's motion, and thus, dismisses his petition.
BACKGROUND AND PROCEDURAL HISTORY
The current petition arises from the re-sentencing of Rivera, which occurred on March 15, 2005 before this Court. Petitioner was involved in an extensive drug-trafficking conspiracy that imported large quantities of cocaine powder from Puerto Rico. On June 5, 2001, a federal grand jury issued a one-count indictment charging Rivera and eleven co-conspirators with drug trafficking conspiracy in violation of 21 U.S.C. § 846. Thereafter, on October 9, 2001, the grand jury issued a two count superceding indictment against only Rivera. On November 14, 2001, Rivera and the Government entered into a plea agreement ("Agreement"). One of the terms of the Agreement is a "cooperation provision" that was predicated upon a conditional obligation. The provision states that if Petitioner "provide[s] substantial assistance in the investigation or prosecution of one or more persons who have committed offenses," the Government, in its sole discretion, could file a downward departure motion pursuant to U.S.S.G. §5K1.1. See Plea Agreement, p. 4.
Having signed the Agreement, Petitioner pleaded guilty on November 30, 2001, before the Honorable Jerome B. Simandle, U.S.D.J., to count one of the superseding indictment. Following Petitioner's guilty plea, the Probation Office prepared a Pre-Sentence Investigation Report. In the Report, Probation recommended that the Total Offense Level yielded a total of 39 because of Petitioner's aggravated role. This was contrary to the Agreement, wherein both Petitioner and the Government stipulated that the Total Offense Level was 35. At the sentencing hearing, the Government voiced its agreement with Probation's finding. Judge Simandle, as well, agreed with, and adopted, the level recommended by Probation. Petitioner then appealed his sentence to the Court of Appeals.
On February 9, 2004, the Court of Appeals vacated the sentence for reasons unrelated to the current motion, concluding that the Government breached the Agreement by adopting Probation's recommendation, re-assigned the case to the undersigned, and remanded to this Court for re-sentencing. United States v. Rivera, 357 F.3d 290 (3d Cir. 2004). Upon remand, this Court conducted the re-sentencing hearing on March 18, 2005, and ultimately concluded that the total offense level was thirty-five (35), as stipulated in the Agreement, and imposed a sentence of 216 months. See Exhibit H, Sentence Hearing Transcript dated March 18, 2005. While the Government did not file a downward departure motion because it determined that Petitioner had not provided substantial assistance under the Agreement, this Court, nonetheless, addressed Petitioner's cooperation with the Government. Having heard counsel's positions on this issue, the Court concluded that while the Government did not pursue a downward departure motion, the Court would consider Petitioner's efforts in providing certain information when devising Petitioner's sentence in accordance with the 18 U.S.C. §3553(a) factors. Id.
Petitioner then appealed his re-sentencing. He argued that this Court failed to properly consider his cooperation with the Government, and thus, imposed a sentence greater than the amount necessary in violation of 18 U.S.C. § 3553(a). However, the circuit court concluded that Petitioner's appeal was without merit because, "the record reveals that the re-sentencing court carefully considered the extent of [Petitioner's] cooperation..." United States v. Rivera, 213 Fed. Appx. 112, 114 (2007). Thus, the Third Circuit affirmed this Court's decision. Id.
On January 14, 2008, Petitioner filed this timely pro se Petition for Habeas Corpus pursuant to 28 U.S.C. §2255, raising his claims of (1) prosecutorial misconduct of the Government by refusing to submit a downward departure motion pursuant to U.S.S.G. §5K1.1; and (2) ineffective assistance of counsel.
Petitioner asserts that the Government violated his due process rights by "withholding" information from this Court regarding his cooperation with the Government and by refusing to submit a downward departure motion pursuant to U.S.S.G. §5K1.1. In that regard, Petitioner submits that the Government breached the Agreement.
Petitioner claims that he identified two individuals, Raymond Morales and Karah Moore, to law enforcement officials and provided information regarding their alleged criminal activities, but that he only became aware of Morales' subsequent arrest after reading a June 2007 newspaper article*fn1 . Because of the arrest, Petitioner argues that the information he provided to the Government was "substantial." Petitioner further contends that the Government is compelled by the Agreement to file a downward departure motion, thereby decreasing his sentence. In response, the Government defends its decision not to file a §5K1.1 motion because the information given by Petitioner was not substantial and did not result in the arrest, apprehension or investigation of any individual relating to information obtained from Petitioner. See Exhibit H.
The sentencing guidelines provide that "upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines." U.S.S.G. §5K1.1. Since §5K1.1 expressly leaves to the government the discretion to file such a motion, it is clear that in the absence of a plea agreement, "a district court has an extremely limited ...