The opinion of the court was delivered by: Chief Judge Kane
On October 26, 2005, Jose Andujar ("Petitioner") was indicted for conspiracy to manufacture, distribute, and possess with intent to distribute cocaine hydrochloride, in violation of 21 U.S.C. § 846. (Doc. No. 1.)With George Matangos serving as counsel, on August 3, 2006, Petitioner signed a plea agreement and pleaded guilty to the offense charged in the indictment. (Doc. Nos. 94, 104.)
In compliance with the plea agreement, Petitioner gave substantial assistance to law enforcement, and, during sentencing, the government moved for a downward departure under U.S.S.G. § 5K1.1. (Doc. No. 181.)The Court granted the three-level sentence reduction, resulting in a guideline range of 78 to 97 months imprisonment. (Doc. No. 199.) On August 20, 2007, Petitioner was sentenced to 78 months imprisonment with three years of supervised release. (Doc. No. 228.)
On August 27, 2008, Petitioner filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255. (Doc. No. 231.) The initial petition stated the grounds for relief as "whether Mr. Jose Andujar should be awarded an additional downward departure" on the basis of "extraordinary remorse," "extraordinary family situation," "pre-trial conditions," and "multiple factors." (Doc. No. 231.) Although the brief in support of the petition contained a section of law on the ineffective assistance of counsel, neither the brief nor the initial petition alleged that defense counsel was ineffective for failing to raise Petitioner's remorse and family situation or the presentencing conditions of confinement at sentencing. (Doc. Nos. 231, 233.) Reading the petition as one simply requesting the Court to resentence Petitioner in consideration of his remorse, his family situation, the presentencing conditions, and a combination of those factors, the Court denied the motion for failure to raise a "fundamental defect which inherently results in a complete miscarriage of justice." United States v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993) (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)). (Doc. No. 241.)
On November 3, 2008, Petitioner filed a motion for reconsideration. (Doc. No. 242.) In that motion, Petitioner clarified his argument by explicitly alleging that defense counsel was ineffective for failing to raise the issues mentioned in the § 2255 petition at the sentencing proceedings. (Doc. No. 242.) In light of Petitioner's clarification, the appearance in the initial petition of case law on the issue of ineffective assistance of counsel, and the leniency due a pro se petitioner, the Court granted the motion for reconsideration and directed the government to respond to the § 2255 petition. (Doc. No. 243.) The motion is now ripe before the Court for disposition.
In Petitioner's motion for post-conviction relief, he argues that his sentence should be reduced on the basis of "exceptional remorse," "extraordinary family situation," "pre-trial conditions," and "multiple factors." (Doc. No. 233.) Because it is unclear from his motion whether he argues solely that the failure of the Court to downward depart for the four above-mentioned reasons resulted in a fundamental miscarriage of justice, or whether he argues defense counsel was ineffective for failing to raise those issues, the Court will consider both possibilities. See Estelle v. Gamble, 429 U.S. 97, 106 91976) (requiring pro se complaints to be leniently construed). The government argues that the motion should be dismissed as untimely or, alternatively, for failure to allege a fundamental miscarriage of justice because Petitioner has not adequately alleged ineffective assistance of counsel.
For the foregoing reasons, the Court finds that the "motions and files and records of the case show conclusively that the movant is not entitled to relief," and therefore the Court will deny Petitioner's motion without holding an evidentiary hearing. United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992).
The government first argues that the motion is untimely since it was received by the Court on August 27, 2008, more than one year after Petitioner's August 20, 2007 sentencing. While there is a one-year statute of limitations period for filing § 2255 motions, the Supreme Court has held that a pro se prisoner's motion for writ of habeas corpus is deemed to have been filed on the date the motion is deposited in the prison's outgoing mailbox or delivered to prison authorities for forwarding. 28 U.S.C. § 2255(f)(1); Houston v. Lack, 487 U.S. 266 (1988).
In this case, the motion was notarized on August 18, 2008, and Petitioner avers that he placed his motion in the mailbox that same day. Further, the postal service date stamp on the envelope appears to read August 20, 2008.*fn1 Accordingly, the Court finds the motion is timely.
Andujar's initial petition contests the Court's application of the sentencing guidelines by alleging that his sentence may have been lower had the Court adequately considered his exceptional remorse, extraordinary family situation, and the deplorable pre-sentencing conditions both individually and in combination. Petitioner did not appeal the Court's alleged failure to adequately consider these issues.
A challenge to the application of the sentencing guidelines must rise to the level of a "substantial miscarriage of justice" to be actionable in a § 2255 petition. United States v. Essig, 10 F.3d 968 (3d Cir. 1993).The Third Circuit Court of Appeals has interpreted this standard to mean that "a defendant who fails to object to errors at sentencing and subsequently attempts to raise them on direct appeal must demonstrate 'cause and prejudice' for that failure." Id., at 979 ("[W]e hold Frady's cause and prejudice standard applies to § 2255 proceedings in which a petitioner seeks relief from alleged errors in connection with his sentence that he has not directly appealed. . . . [T]he standard requires the petitioner to show that some objective factor external to the defense impeded counsel's efforts to raise the claim."). Thus, ...