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December 15, 1994


Edwin M. Kosik, United States District Judge

The opinion of the court was delivered by: EDWIN M. KOSIK

The petitioner, a federal prisoner proceeding pro se, currently confined at the federal correctional institution in Fort Dix, New Jersey, filed the above-captioned motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on June 2, 1994. For the reasons that follow, the court denies petitioner's § 2255 motion.


 On September 18, 1990, a federal grand jury returned a two count indictment against Daniel Bolger and petitioner Eric Eisenfelder for marijuana manufacture and possession, in the criminal case, 90-CR-0264. *fn1" On February 11, 1991, following an original not guilty plea, Eisenfelder changed his plea and plead guilty to Count I of the indictment, pursuant to a plea agreement. *fn2" Eisenfelder was sentenced by this court on October 24, 1991, to a term of sixty-three months imprisonment, three years of supervised release and a fine of $ 1,000. In imposing the sentence, the court adopted in part *fn3" the recommendations contained in the presentence report (PSR) generated by United States Probation Officer Leonard R. Bogart, over the objections of the defendant Eisenfelder. *fn4" Prior to the sentencing, the court conducted an evidentiary hearing, at which the quantity of marijuana plants attributable to Eisenfelder was argued by both sides. The court issued a Memorandum and Order on September 10, 1991 holding that sufficient evidence exists to link Eisenfelder to 149 marijuana plants. *fn5"

 Eisenfelder appealed his sentence to the United States Court of Appeals for the Third Circuit on November 4, 1991. In his brief, Eisenfelder challenged various determinations made by this court with respect to the application of the United States Sentencing Guidelines to his conduct. Primarily, he challenged the finding of the court pursuant to the "relevant conduct" section, § 1B1.3, which held him responsible for 149 marijuana plants. The Third Circuit upheld this factual finding and the remainder of the sentence on December 8, 1992. See United States of America v. Eric Eisenfelder, alkia John L. Taylor, slip. op., No. 91-5904 (3d Cir. December 8, 1992) (affirmed without opinion, 983 F.2d 1053).

 On June 2, 1994, Eisenfelder filed the instant motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. He argues that the court did not correctly factor in his "minor or minimal participation in the offense", pursuant to the Guidelines § 3B1.1(a). *fn6" These arguments are raised here in the first instance. Eisenfelder raised no objection to the sentencing court regarding his role as a "minor participant" under § 3B1.1, nor did his appeal to the Third Circuit Court of Appeals bring forth this contention.


28 U.S.C. § 2255 states in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

 This section provides a statutory remedy for collateral attacks on judgments of sentence following conviction, United States v. Huss, 520 F.2d 598, 603 (2d Cir. 1975), and is intended to alleviate the burden of habeas corpus petitions filed by federal prisoners in the district of confinement, by providing an equally broad remedy in the more convenient jurisdiction of the sentencing court. United States v. Addonizio, 442 U.S. 178, 184, 99 S. Ct. 2235, 2240, 60 L. Ed. 2d 805 (1979).

 If a prisoner's § 2255 petition raises an issue of material fact, the sentencing court must hold a hearing to determine the truth of the allegations. United States v. Essig, 10 F.3d 968, 976 (3d Cir. 1993) (citations omitted). To determine if allegations are material, the court is to use a two step inquiry. We must first determine if through procedural default, petitioner is barred from bringing the action, under the Frady7 "cause and prejudice" analysis discussed below. Id.. If there is no procedural default or waiver, we are then to inquire whether petitioner has alleged an error serious enough to warrant consideration under § 2255. *fn8" Id. If the error is waived we do not reach the question whether it is serious enough to permit collateral review under § 2255. Id.


 The court must first determine if through procedural default or waiver petitioner is barred from bringing these collateral attacks on his sentence. After several years of uncertainty on the issue, the Third Circuit has recently made the "cause and prejudice" default analysis set forth in United States v. Frady, 456 U.S. 152, 167, 102 S. Ct. 1584, 1594, 71 L. Ed. 2d 816 (1982) ("Frady"), definitively applicable to a prisoner seeking to challenge his sentence under collateral review. ...

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