United States District Court, D. New Jersey
Ali, #63465-050 Federal Correctional Institution - Berlin
Petitioner, pro se
V. Carrig, Esq. Office of the United States Attorney Counsel
L. HILLMAN, U.S.D.J.
before the Court is the Motion to Vacate, Set Aside, or
Correct Sentence of Tyren Ali (“Petitioner”)
brought pursuant to 28 U.S.C. § 2255 (the
“Petition”). ECF No. 1. In response to this
Court's Order to Answer, ECF No. 7, Respondent the United
States of America (the “Government” or
its Answer, ECF No. 14, and Petitioner filed a Reply, ECF No.
18. Subsequently, Petitioner filed a Motion to Amend the
Petition pursuant to Federal Rule of Civil Procedure 15. ECF
No. 20. The Government filed an opposition to the Motion to
Amend. ECF No. 29. Petitioner also filed a reply in support
of his request to amend. ECF No. 32. For the following
reasons, the Court will deny Petitioner's Motion to
Amend, deny the Petition, and decline to issue a certificate
September 10, 2010, West Deptford, New Jersey police officers
stopped a vehicle driven by Petitioner. ECF No. 14 at 3.
During the traffic stop, the officers discovered $16, 000 in
cash, a hidden firearm, and paper that appeared to be a coded
drug ledger. Id. A few months later, on November 18,
2010, officers searched Petitioner's home and seized a
small amount of marijuana and $30, 000. Id.
2011, through discussions with a confidential informant, the
U.S. Drug Enforcement Agency (“DEA”) discovered
that Petitioner operated a drug distribution ring in Camden,
New Jersey. Id. at 4. With this information, the DEA
set up a series of controlled drug purchases of cocaine and
crack cocaine between the CI and Petitioner and his brother.
Id. These transactions occurred between March 3,
2011, and May 5, 2011.
was arrested on May 19, 2011, pursuant to a federal criminal
complaint, arising from an investigation into a conspiracy to
distribute and possess with intent to distribute more than 28
grams of a mixture and substance containing detectable
amounts of cocaine base contrary to 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B), and in violation of 21 U.S.C.
§ 846. No. 11-cr-752, ECF Nos. 1 (complaint); 13
(executed arrest warrant). The next day, Petitioner met with law
enforcement agents and admitted to, inter alia, travelling to
East Orange, New Jersey to purchase cocaine in kilogram
quantities, repackaging the cocaine into smaller units, and
paying his brother to conduct small transactions for him. No.
14-cv-7723, ECF No. 14 at 5.
months into his criminal proceedings, Petitioner retained
Peter Alfinito, Esq. as his attorney. No. 11-cr-752, ECF No.
15. Mr. Alfinito represented Petitioner throughout the
remainder of his criminal proceeding, including his September
6, 2011, proffer session, his plea hearing, and ultimately
his sentencing on June 25, 2012. Mr. Alfinito was present
with Petitioner at the proffer, at which time Petitioner
admitted to his conduct and provided detailed information
regarding the conspiracy and the allegations of the
complaint, admitting that these allegations were true and
accurate. See No. 11-cr-752, ECF No. 28-2.
November 1, 2011, the Government indicted Petitioner on
charges related to the criminal complaint. No. 11-cr-752, ECF
No. 22. At his arraignment on November 4, 2011, Petitioner
pleaded not guilty to the sole count of the indictment, and
his case was scheduled for a jury trial to commence on
January 9, 2012. No. 11-cr-752, ECF No. 23.
pled guilty on December 9, 2011. See No. 11-cr-752,
ECF Nos. 32 (minute entry), 41 (plea hearing transcript). The
Court conducted a lengthy and thorough plea colloquy. No.
11-cr-752, ECF No. 41 (plea hearing transcript). The plea
included a written plea agreement with the Government.
See No. 11-cr-752, ECF No. 34 (plea agreement). The
plea agreement laid out the statutory mandatory minimum term
of five years' imprisonment, and the statutory maximum
sentence of forty years' imprisonment. Id. at 1.
The plea agreement did not include an agreed upon term of
imprisonment, but it did contain a narrow waiver regarding a
stipulated drug quantity that if accepted by the Court could
not be challenged on appeal or collateral
attack. Id. at 2-3, Sch. A.
Rule 11 hearing, Petitioner agreed that he had reviewed with
Mr. Alfinito and understood the plea agreement, the charges
contained in the various charging documents, and the rights
and penalties defined in the Rule 11 form. Id. He
also confirmed that he was satisfied with his counsel's
representation and advice. Id.
plea hearing, Petitioner and Mr. Alfinito signed and
submitted a written Application for Permission to Enter Plea
of Guilty. No. 11-cr-752, ECF No. 33. In the Application,
Petitioner stated that he told his lawyer all the facts and
circumstances known to him about the charges set forth in the
indictment, that he was satisfied that his lawyer understood
the information that he provided, and that his lawyer
counseled and advised him on the nature of each charge and on
all possible defenses he might have in this case.
Id., ¶¶ 15-16. He also stated that his
lawyer explained the plea agreement to him and that he
understood it. Id., ¶ 37. Finally, Petitioner
stated, “I believe that my lawyer has done all that
anyone could do to counsel and assist me, AND I AM SATISFIED
WITH THE ADVICE AND HELP MY LAWYER HAS GIVEN ME.”
Id., ¶ 42.
sentencing, the Probation Office determined that Petitioner
qualified as a Career Offender within the meaning of U.S.S.G.
§ 4B1.1. ECF No. 14 at 6. Specifically, Petitioner had a
heroin trafficking conviction stemming from an arrest on May
8, 2001 (violation of N.J. Stat. Ann. 2C:35-5(b)(3)), a
cocaine trafficking conviction stemming from an arrest on
August 4, 2001 (violation of N.J. Stat. Ann. 2C:35-7), and
another cocaine trafficking conviction from an arrest on
April 29, 2005 (violation of N.J. Stat. Ann. 2C:35-7).
See ECF No. 14 at 7 (citing presentence
investigation report). Given Petitioner's criminal
history, the Probation Office then determined that Petitioner
had a criminal history category VI and a total offense level
of 31, which corresponds to an advisory guidelines range of
188 to 235 months of imprisonment. Id.
25, 2012, the parties appeared before the Court for
sentencing. Petitioner's counsel first argued that
although the Career Offender guideline may apply to him,
Petitioner was in reality a low-level street dealer and did
not deserve the length of sentence contemplated by the
advisory guidelines. No. 11-cr-752, ECF No. 40 (sentencing
transcript). In addition, counsel requested a downward
variance based on the relatively small quantities of drugs in
this and prior cases, Petitioner's health because he had
been shot twice, Petitioner's difficult upbringing with a
drug addicted mother and the lack of a father,
Petitioner's age, Petitioner's family support, and
the sentencing disparity between the state and federal
systems for the given offense. Id. See also ECF No.
1-3 (sentencing memorandum). At the sentencing hearing,
counsel for Petitioner had Petitioner's mother speak on
behalf of her son. No. 11-cr-752, ECF No. 40 (sentencing
transcript). Petitioner's mother detailed
Petitioner's difficult upbringing, her prior addiction to
drugs, and Petitioner's instrumental role in supporting
her recovery from the addiction. Id.
hearing argument from both parties, the Court declined to
grant a downward variance and sentenced Petitioner to 204
months of imprisonment, a sentence roughly in the middle of
the advisory range, along with a term of supervised release
and restitution. No. 11-cr-752, ECF Nos. 36 (judgment of
conviction), 40 (sentencing transcript). The Court explained
its reasoning for the sentence given as follows:
Mr. Ali is not an atypical Career Offender in the federal
system. He is the typical Career Offender. And I see nothing
in this record to deviate from the sentencing guideline
provision which raises his offense level to 34 and mandates
an advisory sentencing range of 188 and 235 months, and, more
importantly, I see nothing in the record to cause me to vary
from that offense - from the range, which I find reflects the
seriousness of the offense, the repeated conduct. It's
only a sentence of this long or a sentence within that range
[that] will promote respect for the law, that will provide
just punishment, that will protect the public from further
crimes of this defendant, who seems unwilling or unable to do
anything with his life other than deal drugs.
And if one needed any more confirmation, it's his own
statements to the DEA and his distribution of large amounts
of cocaine in this city, which is plagued by drug dealing,
drug abuse and drug crime, to confirm his status as a Career
I don't impose this sentence lightly and it pains me to
do it. I'm sure Mr. Ali has good qualities. His mother
and fiancée have attested to those. And I think, to
some extent, he's a product of his environment. But
I'm struck by a profound irony that he would save his
mother from drug abuse and drug addiction, and yet repeatedly
sell the same poison into the streets of Camden . . . .
I am convinced that a sentence within the sentencing
guideline range promotes the statutory factors, reflects the
seriousness of the crime, and is warranted ...