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