United States District Court, D. New Jersey
Pedro Vazquez, F.C.I. Yazoo City Low, Yazoo City, MS, Petitioner, pro se.
Matthew J. Skahill, U.S. Attorney's Office, Camden, NJ, Attorney for Respondent.
NOEL L. HILLMAN, District Judge.
Petitioner Pedro Vazquez, an inmate currently confined at Federal Correctional Institution ("FCI") Yazoo City Low in Yazoo City, Mississippi has submitted a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Court will deny the Petition.
On or about January 25, 2007, Petitioner was arrested and charged in a criminal complaint with conspiracy to distribute and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846. On February 27, 2007, a federal grand jury returned a one-count Indictment charging Vazquez and his co-defendants with conspiracy to distribute and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A), and in violation of 21 U.S.C. § 846. On October 23, 2007, a federal grand jury sitting in Camden returned a four-count Superseding Indictment which charged Petitioner in Counts One and Two. On November 30, 2007, the Government filed an Enhanced Penalty Information against Petitioner pursuant to 21 U.S.C. § 851(a). The Enhanced Penalty Information relied on one of Petitioner's prior drug distribution convictions in the State of New Jersey and subjected him to a mandatory minimum term of 20 years' imprisonment if convicted on the charges contained in the Superseding Indictment.
On December 3, 2007, trial commenced in this Court and on December 14, 2007, the jury convicted Petitioner of Counts One and Two of the Superseding Indictment. Following trial, the Probation Department prepared a Presentence Investigation Report ("PSR"). In the PSR, the Court determined that Petitioner had 9 criminal history points. However, the Probation Office determined that Petitioner was a career offender within the meaning of U.S.S.G. § 4B1.1 by relying on two of his prior four felony convictions.
On September 12, 2008, this Court found that Petitioner was a career offender under U.S.S.G. § 4B1.1 with a resulting Offense Level of 37, Criminal History Category of VI and an advisory Guidelines range of 360 months to life imprisonment. This Court considered all of the Section 3553(a) factors and sentenced Petitioner to a term of 360 months' imprisonment.
Petitioner timely appealed. The Third Circuit affirmed Petitioner's conviction and sentence on November 1, 2011. The United States Supreme Court denied a petition for writ of certiorari on January 9, 2012.
On November 13, 2012, Petitioner filed the instant petition to vacate, correct or set aside his conviction pursuant to 28 U.S.C. § 2255. In his Petition, Petitioner alleges ineffective assistance of counsel based on his counsel's failure to object to Petitioner's classification as a career offender pursuant to U.S.S.G. § 4B1.1. Specifically, Petitioner asserts that one of the predicate offenses in the PSR used to classify him as a career offender was incorrectly identified and cannot serve as a predicate offense. Thus, Petitioner contends that the Government failed to establish that he is a career offender and his sentence was improperly enhanced. Petitioner requests that he be resentenced without the application of the career offender enhancement.
Respondent concedes that the second conviction upon which Petitioner's career offender status was based cannot serve as a predicate offense. Nevertheless, Respondent asserts that Petitioner remains a career offender under U.S.S.G. § 4B1.1. Respondent explains that Petitioner was also convicted on February 24, 1995 in New Jersey Superior Court, Hudson County for possession with intent to distribute CDS on school property (the Hudson County Conviction). Respondent further explains that the initial conviction did not result in a term of imprisonment exceeding one year and one month and was not imposed within ten years of the commencement of the federal offense at issue in this case; therefore, the Hudson County Conviction did not receive criminal history points in Petitioner's PSR and was not relied upon as a basis for the career offender enhancement.
However, Respondent contends that on November 12, 1996, Petitioner pled guilty to a violation of probation with respect to the Hudson County Conviction (the Probation Violation). As a result of this plea, on May 2, 1997, Petitioner's probation was revoked and he was sentenced to a term of three years' imprisonment to run concurrent with the sentences for the other predicate offenses listed on his PSR. Thus, Respondent asserts that, although the initial sentence for the Hudson County Conviction could not count for application of U.S.S.G. § 4B1.1, the sentence imposed on May 2, 1997 for the Probation Violation existed at the time of sentencing in the instant federal offense and counts as a predicate offense for the career offender enhancement.
Respondent explains that the Probation Office was unaware of the Probation Violation because it did not have transcripts of the violation proceedings at the time the PSR was prepared. Additionally, Respondent contends that the Hudson County Superior Court did not issue a judgment for the Probation Violation contemporaneous with the judgment for the other felony offenses; therefore although the Probation Office ordered Petitioner's certified convictions, it did not receive notice of the updated Hudson County Conviction judgment which included the Probation Violation. Respondent concludes that, despite the error in the PSR, Petitioner remains a career offender and, if he were to be resentenced, his Guideline range would remain unchanged. For this reason, Respondent asserts that Petitioner is unable to demonstrate the prejudice required to succeed on an ineffective assistance of counsel claim.
Petitioner files a reply and argues that Respondent is precluded from introducing new evidence at resentencing. Petitioner asserts that information regarding the Probation Violation was reasonably available at the time of sentencing and that Respondent has not offered a valid ...