The opinion of the court was delivered by: Conaboy, District Judge.
Pending before the Court is a motion for habeas corpus relief
filed on June 5, 2000 by Petitioner pursuant to 28 U.S.C. § 2255
along with a "Memorandum of Law" in support of his motion to
vacate his sentence.*fn1 (Doc. 114). The Petitioner claims
ineffective assistance of counsel, prosecutorial misconduct, and
sentencing errors based on misinterpretations of the United
States Sentencing Guidelines. The Government failed to file a
response. In addition, the Petitioner filed an "Amended
(informal) Brief" on December 29, 2000 (Doc. 116) in which he
claims that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435, makes his sentence improper. For the
reasons set forth infra, we shall deny the Petitioner's habeas
FACTUAL AND PROCEDURAL BACKGROUND
On October 24, 1990, the Petitioner was arrested following a
drug investigation conducted by the Federal Bureau of
Investigation, the Pennsylvania Attorney General's Office, the
Pennsylvania State Police, and the Wilkes-Barre Drug Task Force.
(Doc. 79). The Petitioner was charged with one count of
conspiracy to distribute cocaine and fourteen substantive counts
of cocaine distribution and/or possession with intent to
distribute cocaine. Id. at p. 8.
On the day that the Petitioner was scheduled to go to trial, he
indicated his desire to plead guilty to the charges listed in the
indictment. A hearing was held in which the Petitioner changed
his plea*fn2 to guilty and the Court ordered the United States
Probation Office to prepare a pre-sentence investigation report
("PSI") in preparation for sentencing. (Doc. 79, p. 10). The PSI
was prepared and Ristagno objected to the conclusions made by the
United States Probation Office.
This Court conducted a sentencing hearing on October 9, 1991 at
which time Ristagno placed his objections on the record. We
determined that the conclusions reached by the United States
Probation Office, in many of the paragraphs (in the Probation
Office's Report) objected to were valid, and overruled the
Petitioner's objections. At the same time, several of the
Petitioner's objections were sustained and the Court made it
clear that several of the paragraphs were not relied upon when
arriving at the sentence.*fn3 The Petitioner was sentenced to a
235*fn4 month term of incarceration to be followed by a four
year term of supervised release. The petitioner did not appeal
the imposition of this sentence. Id. at p. 11. At sentencing,
this Court failed to inform Ristagno of his right to appeal.*fn5
Via our Memorandum and Order of March 24, 1998 (Doc. 91), this
Court vacated Petitioner's sentence and reimposed on the
Petitioner the same sentence of 235 months of confinement to be
followed by a four year term of supervised release. The sentence
was subject to all of
the terms and conditions imposed in the original sentence imposed
on October 9, 1991. Also addressed in our March 24, 1998
Memorandum and Order were Petitioner's ineffectiveness of counsel
claim, 6th Amendment right to confront accusers claim, improper
sentencing calculation claim, obstruction of justice claim, and
acceptance of responsibility/reduction in sentence claim. (See
This is the kind of case that gives us pause regarding
28 U.S.C. § 2255 limitations under the new Act.
We pause because the Petitioner did file a prior
28 U.S.C. § 2255 claim which we granted and set aside the prior sentence
allowing him to be resentenced to an identical term as the
original. In the course of doing that we explored the merits of
his numerous arguments and determined them to be meritless. As
such, we think that this is a second 28 U.S.C. § 2255 petition
and therefore improper. We think that the Petitioner did exhaust
his right to appeal this sentence but in an abundance of caution
we will address his petition again and frequently refer back to
the first petition (Doc. 71) and our Memorandum and Order of
March 24, 1998. (Doc. 91).
Further, the Petitioner claims that his sentencing is affected
by the recent case of Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348, 147 L.Ed.2d 435. We find that it is not.
Notwithstanding the Petitioner's improper attempt to amend his
motion via an informal letter addressed to the Court, again, in
an abundance of caution we will analyze the merits of this claim.
The Petitioner contends that his counsel was ineffective. This
claim was raised in Petitioner's prior habeas corpus motion (Doc.
91) where it was reviewed and dismissed by this Court. Because
our prior review of this claim is more than adequate we find it
unnecessary to restate it here. (See Doc. 91, pp. 7-12).
Obviously, the Petitioner has a difference of opinion, but in
light of ...