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IRRIZARI v. U.S.

July 16, 2001

JOSE IRRIZARI, PETITIONER
v.
UNITED STATES OF AMERICA, RESPONDENT



The opinion of the court was delivered by: Giles, C.J.

  MEMORANDUM

I. Introduction

Petitioner Jose Irrizari, charged in a five count indictment, pled guilty on June 3, 1998 to Count one, conspiracy with intent to distribute cocaine and heroin in violation of 21 U.S.C. § 846. Counts two, three, four, and five were dismissed pursuant to a plea agreement with the government. On September 30, 1998, Jose Irrizari was sentenced to a term of imprisonment of 262 months, 10 years supervised release, a $750.00 fine, and a $100.00 assessment. The third circuit affirmed the judgment of the district court on August 18, 1999.

Now before the court is Jose Irrizari's pro se petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the following grounds (1) ineffective assistance of counsel; (2) violation of Rule 11 of the Federal Rules of Criminal Procedure; and (3) Apprendi v. New Jersey, 530 U.S. 466 (2000). For the following reasons, the petition is denied without hearing.

II. Factual Background

At his change of plea hearing, in his plea agreement, in his pre-sentence report, and at his sentencing hearing, Irrizari was correctly informed that he faced a statutory maximum penalty of life imprisonment. The court incorrectly stated that his statutory mandatory minimum sentence was twenty years. In fact, he faced a mandatory minimum of ten years imprisonment.*fn1 However, he was informed of the correct sentencing guideline range in his pre-sentence report, (Pre-sentence Report at ¶ 53), and at his sentencing, (Sentencing Hr'g Tr. at 9), and ultimately he received a sentence at the lowest end of the guideline range and did not receive a "statutory sentence."

The court determined that Irrizari was a career offender under U.S. Sentencing Guidelines Manual § 4B1.1 and as a career offender who was convicted of a crime with a statutory maximum sentence of life imprisonment, Irrizari had an adjusted guideline range of 262 to 327 months. He was sentenced to 262 months. Irrizari never challenged his status as a career offender or the guideline range.

The third circuit affirmed the judgment, rejecting Irrizari's arguments that the government should have moved for a U.S. Sentencing Guidelines Manual § 5K1.1 downward departure under the sentencing guidelines and that his guilty plea was not knowing, voluntary, and intelligent because he believed that he was facing a maximum sentence of 20 months rather than 20 years.

On August 15, 2000, Petitioner filed the instant habeas petition. The court ordered the government to answer the petition on March 19, 2000 and the government filed its answer on April 16, 2001.

IV. Discussion

A. Legal Standard for a Hearing

In determining whether Petitioner has raised an issue of material fact that necessitates a hearing, the third circuit has long recognized that a pro se petitioner's pleadings should be liberally construed to do substantial justice. See Lewis v. Attorney General, 878 F.2d 714, 722 (3d Cir. 1989).

The question of whether to order an evidentiary hearing on a 28 U.S.C. § 2255 motion is left to the discretion of the district court. In exercising that discretion, the district court must accept the truth of the defendant's factual allegations unless they are clearly frivolous on the basis of the existing record. See Government of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1988). The court must determine whether the petitioner's claims, if proven, would entitle him to relief and then consider whether an evidentiary hearing is needed to determine the truth of the allegations. See Government of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574 (3d Cir. 1994); United States v. Essig, 10 F.3d 968, 976 (3d Cir. 1994) (If a prisoner's § 2255 petition raises an issue of material fact, the district court must hold a hearing to determine the truth of the allegations).

The third circuit stated in Essig that a court should decide whether a petitioner has raised an issue of material fact that necessitates a hearing by using a two step inquiry. Essig, 10 F.3d at 976. First, if the petitioner is raising an issue for the first time, the court should inquire whether petitioner's failure to raise any objection at sentencing or on direct appeal constitutes a procedural waiver. Id. Second, if there is no waiver, the court should then inquire whether petitioner has alleged an error serious enough to warrant consideration under § 2255. Id. Only if these two prongs are met does the district court have to hold a hearing to determine if the factual allegations are true.

Essig notes that if the error is waived then the court does not reach the question whether the error is serious enough to permit collateral review under ยง 2255. Id. at 976-77. In terms of the seriousness of the error, the third circuit has stated that "[h]abeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair ...


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