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NUNEZ v. UNITED STATES

July 11, 1995

PERSIO TORRES NUNEZ, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: DAVID N. EDELSTEIN

 EDELSTEIN, District Judge:

 Petitioner Persio Torres Nunez, pro se, brings this motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. *fn1"

 BACKGROUND

 On March 17, 1986, petitioner was indicted on five counts: (1) conspiracy to distribute and possess with intent to distribute cocaine and cocaine base ("crack"), in violation of 21 U.S.C. § 846; (2) operating a continuing criminal enterprise, in violation of 21 U.S.C. § 848; (3) distributing and possessing with intent to distribute cocaine, in violation of 21 U.S.C. § 841(b)(1)(B); (4) participating in the affairs of a racketeering enterprise, in violation of 18 U.S.C. § 1962(c); and (5) conspiring to violate federal racketeering laws, in violation of 18 U.S.C. § 1962(d).

 After a jury trial, petitioner was convicted on all five counts. This Court sentenced Nunez to sixty years imprisonment on each of the first two counts, thirty years imprisonment and a lifetime term of supervised release on the third count, fifteen years imprisonment on the fourth count, and fifteen years imprisonment on the fifth count. This Court ordered that the sentences on the first two counts were to be served concurrently with each other and with the sentences on the third, fourth, and fifth counts. This court further ruled that the sentences on the third, fourth, and fifth counts were to be served consecutively to each other. In effect, then, this Court sentenced petitioner to three concurrent sixty-year terms of imprisonment.

 Thereafter, petitioner appealed his convictions. On appeal, petitioner argued that this Court's sentence punished petitioner for exercising his right to a jury trial. Petitioner contended that "by sentencing [him] to a minimum of 60 years imprisonment, after he had been offered 0 to 20 years by the Government, an inference arises that defendant was punished for exercising his Sixth Amendment right to a jury trial." (Petitioner's Appellate Brief at 13.) In an unpublished order, the Court of Appeals for the Second Circuit affirmed. See United States v. Polanco-Rodriguez, 1991 U.S. App. LEXIS 7188, No. 88-1346 (2d Cir. Feb. 5, 1991).

 Petitioner now moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. Petitioner contends that he is entitled to § 2255 relief because his trial counsel was ineffective. Petitioner claims that his trial counsel was ineffective because counsel "failed to apprise petitioner that the government had offered to him 0 to 20 years if he plea [sic] guilty." (Petitioner's Brief at 2.) Pursuant to an order of this Court, the Government filed a memorandum responding to petitioner's claim.

 On June 6, 1995, this Court ordered both petitioner and the Government to file, no later than June 23, 1995, affidavits regarding whether petitioner's trial counsel informed petitioner of the Government's plea offer. On June 12, 1995, the Government filed an affidavit from petitioner's trial counsel, which states that trial counsel advised petitioner of the Government's plea offer prior to trial. On June 21, 1995, this Court extended petitioner's time to file affidavits until July 6, 1995.

 On June 15, 1995, petitioner filed a motion, requesting additional time in which to respond to the Government's memorandum in opposition to petitioner's motion. On July 5, 1995, petitioner filed two affidavits: one from petitioner and one from William C. Smith, a fellow inmate who aided petitioner in preparing his submission to this Court. On July 5, 1995, petitioner also filed several other papers: (1) a reply memorandum to the Government's memorandum; (2) a motion to amend petitioner's § 2255 motion; (3) a motion requesting that petitioner be provided, without cost, with transcripts of the proceedings against petitioner; (4) a motion for appointment of counsel; and (5) a motion for an evidentiary hearing.

 DISCUSSION

 Before proceeding to petitioner's § 2255 claim, this Court will examine the five motions that petitioner recently has made. All but one of these motions is meritless.

 First, petitioner moves to amend his § 2255 motion. In support of his motion to amend, petitioner cites Federal Rule of Civil Procedure 15(a), which states in relevant part:

 
A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

 Rule 15(a) governs amendments of pleadings and the instant action is a motion, which, of course, contains no pleadings. Nevertheless, this Court has discretion to permit petitioner to amend his § 2255 motion. Just as Rule 15(a) states that "leave shall be freely given when justice so requires," this Court finds that the interests of justice will be furthered by permitting petitioner to amend his § 2255 motion. Moreover, because petitioner's motion to amend fully explains the two claims that petitioner wishes to raise in the amended motion, this Court will deem petitioner's motion amended to assert these two claims. Thus, petitioner's § 2255 motion is deemed amended to assert the following two claims: (1) ineffective assistance of trial counsel for failure to argue that this Court's sentence was contrary to law because this Court sentenced petitioner under both 21 U.S.C. § 846 and 21 U.S.C. § 848; (2) ineffective assistance of appellate counsel for failure to argue that petitioner's sentence was contrary to law because this Court sentenced petitioner under both 21 U.S.C. § 846 and 21 U.S.C. § 848.

 Second, petitioner moves for "an enlargement of time to respond to the Government's memorandum of law in opposition to petitioner's § 2255 motion." (Petitioner's Motion for Enlargement of Time at 1.) After making this motion, however, petitioner filed a reply memorandum to the Government's memorandum. Because petitioner has already filed his reply and because this Court has considered all of the arguments that petitioner raises in this reply, petitioner's motion for an extension of time is dismissed as moot.

 Third, petitioner moves that he be provided, without cost, with transcripts of the criminal proceedings against him. In support of this motion, petitioner cites 28 U.S.C. § 2250, which states:

 
If on any application for a writ of habeas corpus an order has been made permitting the petitioner to prosecute the application in forma pauperis, the clerk of any court of the United States shall furnish to the petitioner without cost certified copies of such documents or parts of the record on file in his office ...

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