The opinion of the court was delivered by: Rufe, J.
Before the Court is Defendant Pedro Risquet's Motion to Vacate, Set Aside, or Correct his Sentence Pursuant to 28 U.S.C. § 2255. *fn1 For reasons that follow, the Court finds that the grounds pursuant to which Defendant brings his Motion lack merit. Consequently, the Court will deny the Motion without an evidentiary hearing. *fn2
On June 29, 2005, a grand jury in the Eastern District of Pennsylvania returned a nineteen-count indictment against Defendant and seven co-defendants. *fn3 Defendant was charged with conspiracy to distribute more than 5 kilograms of cocaine, in violation of 21 U.S.C. § 846 (Count One); distribution of more than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Thirteen); and possession with intent to distribute more than 500 grams of cocaine, also in violation of 21 U.S.C. § 841(a)(1) (Count Seventeen). Six of Defendant's co-defendants (Defendants Raul Estevez, *fn4 Ibel Blanch, Ricardo Cruz, Leopoldo Morell-Estevez, David Gutierrez, and Robert Garcia) pled guilty. Defendant and co-defendant David Calhoun proceeded to trial, which began on April 17, 2006.
At trial, the Government presented evidence of a conspiracy among
Defendant and his co-defendants. The evidence at trial focused
primarily on the role of Defendant and co-defendant Calhoun in the
conspiracy. *fn5 Co-defendant Raul Estevez
was the Government's key witness. Estevez testified that from July
2004 to February 2005, Defendant acted as Estevez's main cocaine
supplier and that Defendant sold cocaine to Estevez on a monthly basis
at a rate of about one kilogram per month. *fn6
On two occasions during the life of the conspiracy
Estevez purchased cocaine from co-defendant Ricardo Cruz.
*fn7 Estevez serviced two customers: Jerry Clarke,
identified in the Indictment as "Person #1," and co-defendant
The mechanics of the conspiracy were straightforward. Estevez would receive phone calls from his customers, who sought to purchase cocaine. Estevez would then call Defendant and arrange for transport of the cocaine from Defendant to Estevez. Estevez would purchase the cocaine from Defendant, typically for approximately $25,000 per kilogram, and then resell it to Calhoun for a profit. To establish the mechanics of Defendant's role in the conspiracy, the Government presented telephone conversations between Defendant and Estevez, and between Estevez and Calhoun, recorded between December 11, 2004, and February 3, 2005. *fn9 The Government played the tapes for the jury, and then questioned Estevez regarding the recorded conversations.
On April 20, 2006, the jury found Defendant guilty of all counts charged. On August 4, 2006, Defendant was sentenced to 20 years imprisonment *fn10 followed by 10 years supervised release, and ordered to pay a special assessment of $300. *fn11 Defendant's appeal *fn12 was denied by the Third Circuit on May 1, 2008. *fn13 On October 6, 2008, *fn14 the Supreme Court denied certiorari.
Thereafter, Defendant timely filed the § 2255 Motion now before the Court, *fn15 and the case was reassigned to this Court. *fn16
Defendant advances two grounds in support of his § 2255 Motion. First, he argues that his counsel was ineffective for failing to object to the Government's Motion to Modify the § 851 Notice. Defendant asserts: "Counsel should have opposed the government's request to make a clerical change, on account of it was aiming a structural change (the government was not referring to a typeset matter) the government was seeking a 20 years minimum mandatory. . . . Counsel should have challenged the government's § 851 notification filed on March 28, 2006, because it was grounded on false information." *fn17 According to Defendant, the effect of granting the Motion to Modify was to increase the mandatory minimum sentence he faced from 10 to 20 years. Second, Defendant claims that the Government constructively amended the Indictment at trial asserting that the evidence at trial established the existence of multiple conspiracies, rather than a single, unique conspiracy as charged in the Indictment. *fn18
Title 28, United States Code, Section 2255 provides that a prisoner serving a sentence in federal custody may petition the court which imposed the sentence to vacate, set aside or correct the sentence, by asserting that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." "Habeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarrage of justice or an omission inconsistent with the rudimentary demands of fair procedure." *fn19 Here, Defendant challenges his sentence on the two grounds mentioned above.
A. Ground One: Ineffective Assistance of Counsel for Failure to Object to the Government's Motion to Modify the § 851 Notice Title 21, United States Code, Section 851(a)(1) provides:
No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. Upon a showing by the United States attorney that facts regarding prior convictions could not with due diligence be obtained prior to trial or before entry of a plea of guilty, the court may postpone the trial or the taking of the plea of guilty for a reasonable period for the purpose of obtaining such facts. Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.
A § 851 Notice is the written notice that § 851(a)(1) requires be submitted to a defendant prior to trial. The Notice informs the defendant that the Government intends to use defendant's prior conviction(s) to enhance the mandatory minimum sentence upon conviction. The requirement of written notice is ...