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United States v. Pelullo

United States District Court, Third Circuit

June 4, 2013

UNITED STATES OF AMERICA
v.
SALVATORE PELULLO. Civil Action No. 12-4966.

MEMORANDUM

LAWRENCE F. STENGEL, District Judge.

On July 30, 2002, Salvatore Pelullo entered a plea of guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343. Mr. Pelullo was sentenced in October 2002 to five years' probation, a fine of $1, 000, restitution in the amount of $21, 000, and a special assessment of $100. He did not file a direct appeal.

Although his conviction has been final for over ten years, Mr. Pelullo filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, and the government has responded. For the following reasons, I will dismiss the petition without a hearing.

I. BACKGROUND

Mr. Pelullo has recently been indicted by a federal grand jury in the District of New Jersey with, inter alia , a violation of 18 U.S.C. § 371, that is, knowingly and intentionally conspiring and agreeing with others "to possess in and affecting commerce firearms and ammunition having been convicted of a crime punishable by imprisonment for a term exceeding one year, contrary to Title 18 U.S.C. § 922(g)(1)." Mr. Pelullo now seeks a judicial "ruling or clarification" in this court that his conviction here for wire fraud was not a felony, thereby disqualifying him from the firearm count in the District of New Jersey indictment.

II. LEGAL STANDARD

A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging the validity of his sentence. Section 2255 provides, in relevant part, as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). Thus, Mr. Pelullo is entitled to relief only if he can demonstrate that he is in custody in violation of federal law or the Constitution. See United States v. Garth , 188 F.3d 99, 108 (3d Cir. 1999) (citing Herrera v. Collins , 506 U.S. 390, 404 (1993)) (federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution, not to review questions of guilt or innocence.) In considering this motion, the court "must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." United States v. Booth , 432 F.3d 542, 545 (3d Cir. 2005).

Mr. Pelullo has filed this motion pro se. Pro se pleadings are traditionally construed quite liberally. However, a pro se petitioner is not excused from the duty to prove a "set of facts in support of his claim which would entitle him to relief." Haines v. Kerner , 404 U.S. 519, 521 (1972). A prisoner in custody may move the sentencing court to "vacate, set aside, or correct" a sentence imposed "in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. Section 2255 permits habeas relief for an error of law or fact constituting a "fundamental defect which inherently results in a complete miscarriage of justice." United States v. Eakman , 378 F.3d 294, 298 (3d Cir. 2004) (citing United States v. Addonizio , 442 U.S. 178, 184 (1979)).

Section 2255 provides that "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255(b). Conversely, a court may dismiss a Section 2255 motion where the records and files show conclusively that the movant is not entitled to relief. United States v. Nahodil , 36 F.3d 323, 326 (3d Cir. 1994).

III. DISCUSSION

In the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Congress prescribed a one-year period of limitation for the filing of a habeas corpus ...


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