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Astolfo Torres v. United States of America

May 31, 2011

ASTOLFO TORRES, PETITIONER,
v.
UNITED STATES OF AMERICA, ET AL., RESPONDENTS.



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

NOT FOR PUBLICATION

OPINION

Petitioner Astolfo Torres, a prisoner currently confined at the Federal Correctional Institution at Fort Dix, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241*fn1 and an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). The named respondents are the United States of America and Warden Donna Zickefoose.

Based on his affidavit of indigence, the Court will grant Petitioner's application to proceed in forma pauperis and direct the Clerk of the Court to file the Petition.

Because it appears from a review of the Petition that this Court lacks jurisdiction, the Court will dismiss the Petition without prejudice. See 28 U.S.C. § 2243.

I. BACKGROUND

On October 14, 2004, in the United States District Court for the Southern District of Florida, Petitioner pleaded guilty, without a written plea agreement, to an indictment charging him with conspiracy to distribute and possess with intent to distribute at least five kilograms of cocaine, and attempt to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. § 846. At sentencing, Petitioner argued that he was entitled to a two-level "minor role" reduction. At sentencing on January 7, 2005, the Court denied Petitioner's request and sentenced him to 108 months imprisonment. See United States v. Torres, 04-cr-60196 (S.D. Fla.).*fn2

Petitioner's pro se direct appeal was dismissed for lack of jurisdiction, because it was untimely. See United States v. Torres, No. 05-11990 (11th Cir.).

Thereafter, Petitioner filed in the trial court a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. See Torres v. United States, 05-cv-61975 (S.D. Fla.). In that motion, Petitioner raised the following claims: (1) his mere intention to commit the crime was not enough to constitute an attempt and he was improperly charged in the indictment, (2) his lawyer convinced him to take the plea by incorrectly promising him that he would be sentenced to no more than three years imprisonment, and (3) he should have been awarded a "minor role" reduction at sentencing. The trial court denied, on the merits, the motion and the subsequent motion for reconsideration. On September 19, 2007, the Court of Appeals for the Eleventh Circuit denied Petitioner's motion for a certificate of appealability. See Torres v. United States, No. 07-10974 (11th Cir.). On March 24, 2008, the Supreme Court of the United States denied certiorari. See Torres v. United States, No. 07-9418 (U.S.).*fn3

Thereafter, Petitioner submitted in this Court a Petition for writ of habeas corpus under 28 U.S.C. § 2241, challenging his detention on the grounds that: (1) he was denied his constitutional right to effective assistance of counsel at the trial level, in connection with trial preparation, the guilty plea process, and sentencing, and at the appeal level by failing to file a timely direct appeal; (2) he should have been awarded a "minor role" sentencing reduction; and (3) he did not understand the plea colloquy at his guilty plea hearing. See Torres v. Grondolsky, Civil No. 08-4811 (D.N.J.). On October 3, 2008, the Honorable Renee Marie Bumb of this Court dismissed that petition without prejudice for lack of jurisdiction. Petitioner did not appeal.

On November 12, 2008, Petitioner returned to the trial court and submitted a Petition for writ of audita querela, in which he argued that, due to his minimal understanding of the English language, he did not understand the nature and consequences of the charges against him or of his guilty plea. He also asserted that his attorney unduly influenced him to plead guilty. On January 29, 2009, that petition was dismissed as a successive § 2255 motion, that Petitioner had not received authorization to file from the Court of Appeals. Petitioner did not appeal. See Torres v. United States, Civil No. 08-61814 (S.D. Fla.).

Now Petitioner has returned to this Court, in the district of confinement rather than conviction, filing a new Petition for writ of habeas corpus under 28 U.S.C. § 2241, asserting that he is entitled to habeas relief because he is "actually innocent" of the crime and because his trial counsel failed to advise him on his deportation status prior to the entry of the guilty plea.*fn4

II. STANDARDS FOR A SUA SPONTE DISMISSAL

United States Code Title 28, Section 2243 provides in relevant ...


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