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RISTAGNO v. U.S.

February 20, 2001

SAMUEL RISTAGNO, SR., PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



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

MEMORANDUM AND ORDER

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 corpus motion.

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 Doc. 91).

DISCUSSION

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. (Doc. 116).

A. INEFFECTIVENESS 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 ...


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