The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
This matter comes before the Court upon Luis Escobar's pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his federal prison sentence. For the reasons that follow, Escobar's motion lacks merit and will be denied.
On July 15, 2004, Escobar pleaded guilty in this Court to a one-count criminal information charging him with conspiracy to import more than one kilogram of heroin into the United States, in violation of 21 U.S.C. § 963. See United States v. Escobar, Crim. No. 03-520, D.E. # 22. There was no formal plea agreement and no stipulations regarding application of the sentencing guidelines. His Presentence Investigation Report (PSR) assigned him a four-level role enhancement as an organizer and leader of the conspiracy. PSR, ¶¶ 56, 58. On February 14, 2005, the Court held a sentencing hearing, and accepted counsel's argument that Escobar's base offense level should be 34 instead of 36. Defense counsel did not object to the Court's finding that Escobar had played a leadership role in the conspiracy that merited a two-level (but not a four-level) upward role adjustment. The Court further accepted the defense argument that Escobar was in criminal history Category I and not Category II, as found by Probation in the PSR. Applying a three-level downward adjustment for Escobar's acceptance of responsibility, the Court arrived at a total offense level of 33, which called for a sentencing range of 135-168 months. This marked a significant divergence from the range recommended in the PSR of 235-293 months (based on a Category II criminal history and total offense level of 37).
The Court sentenced Escobar to a within-guidelines prison term of 145 months. Before doing so, it discussed the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), and inquired of Escobar: (1) whether he understood the sentencing implications of Booker; and (2) whether he was fully satisfied with the representation of counsel. Escobar answered affirmatively to both queries. Sent. Tr., Feb. 14, 2005, at 13-4. He did not thereafter file an appeal.
On January 23, 2006, Escobar filed an initial § 2255 motion [D.E. # 1] claiming that his sentence was rendered in violation of Booker because "at sentencing, [his] sentence was enhanced for being a leader without the facts underlying the enhancement being submitted to a jury and proven beyond a reasonable doubt." On March 27, 2006, the Court issued a notice to Escobar pursuant to the Third Circuit's direction in United States v. Miller, 197 F.3d 644 (3d Cir. 1999) [D.E. # 3], and advised him that he could withdraw his pleading within 45 days and file an all-inclusive § 2255 motion. Escobar filed an amended motion [D.E. # 4] on May 2, 2006, appearing to add a claim that counsel's assistance had been ineffective under Strickland v. Washington, 466 U.S. 668 (1984). In support of the claim, Escobar argued that counsel had failed to request an evidentiary hearing regarding his alleged leadership role in the conspiracy and had failed to object to the government's position that Escobar had played such a role.
On May 17, 2006, the government filed a motion to dismiss [D.E. # 5] Escobar's § 2255 motion. The Court denied the motion on May 22, 2006 and ordered the government to file an answer [D.E. # 6]; it did so on July 7, 2006 [D.E. # 7]. On June 26, 2008, Escobar filed with the Court a "Traverse" [D.E. # 8], in which he indicated that he wished to withdraw his original substantive claim under Booker and his ineffective assistance of counsel claim under Strickland that he had added in his amended motion. Instead, he stated that the only relief he wanted to pursue was a sentence reduction similar to that granted by this Court in United States v. Franz Copeland Sutton, No. 07-426, 2007 U.S. Dist. LEXIS 79518 (D.N.J. Oct. 25, 2007), because he had been detained at the Passaic County Jail for approximately 32 months pending sentencing.*fn1
"A prisoner in custody under sentence of a court established by Act of Congress . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a); see also Morelli v. United States, 285 F. Supp. 2d 454, 458 (D.N.J. 2003) (Bassler, J.). Pursuant to § 2255, the movant shall be released from custody if the sentence: "(1) was imposed in violation of the Constitution or laws of the United States; (2) was imposed by a court lacking jurisdiction; (3) was in excess of the maximum authorized by law; or (4) is otherwise subject to collateral attack." Morelli, 285 F. Supp. 2d at 458 (citing 28 U.S.C. § 2255). The Court "must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." United States v. Garvin, 270 F. App'x 141, 143 (3d Cir. March 27, 2008) (citing United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005)). The scenarios in which § 2255 relief may be permitted, however, are strictly circumscribed: To establish a right to relief, a prisoner must demonstrate that the sentence has a fundamental defect resulting in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure. See, e.g., United States v. De Luca, 889 F.2d 503, 506 (3d Cir. 1989); Morelli, 285 F. Supp. 2d at 458-59 (citations omitted). Moreover, § 2255-the federal analogue to habeas corpus-"does not encompass all sentencing errors, and should not be used as a substitute for direct appeal." Sasonov v. United States, 575 F. Supp. 2d 626, 631 (D.N.J. 2008) (Greenaway, J.) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)).*fn2
As stated, Escobar's original § 2255 motion claimed that his sentence violated Booker because his status as a leader was not determined by a jury beyond a reasonable doubt. Escobar's amended motion challenged the effectiveness of his attorney under Strickland. Although Escobar has stated that he now wishes to withdraw these two claims, the Court discusses them briefly, for they lack merit in any event. The Court then addresses Escobar's claim that his pre-sentence housing conditions in the Passaic County Jail warrant sentence modification under § 2255.
In Booker, the Supreme Court held that the mandatory operation of the federal sentencing guidelines violated the Sixth Amendment to the federal Constitution "when the imposition of an enhanced sentence . . . based on the sentencing judge's determination of a fact (other than a prior conviction) . . . was not found by the jury or admitted by the defendant." Booker, 543 U.S. at 244-45 (Breyer, J., remedial opinion). To remedy this finding, the Court rendered the guidelines advisory by severing and excising the statutory provision that originally made them mandatory. Id. at 245-46. Thus, irrespective of the fact that Escobar did not object to the role adjustment at the sentencing hearing (thus conceding that he played a leadership role in the conspiracy), this Court's-rather than a jury's-determination that a two-level role adjustment was proper did not disturb the constitutional principles announced in Booker because the Court did not "enhance" his sentence outside an applicable statutory maximum. See Blakely v. Washington, 542 U.S. 296, 303-04 (2004); Apprendi v. New Jersey, 530 U.S. 466, 483, 490 (2000); United States v. Grier, 475 F.3d 556, 564 (3d Cir. 2006) (After Booker,"[f]acts relevant to enhancements under the Guidelines . . . no longer increase the maximum punishment to which the defendant is exposed, but . . . simply ...