Opinion — Jeremy D. Valerio v. United States (D.N.J., Dkt. 12, November 9, 2005)

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An Opinion by United States District Judge Jerome B. Simandle in Valerio v. United States, Civil No. 04-5098 (JBS), in the U.S. District Court for the District of New Jersey, filed November 9, 2005 (Doc. 12, 13 pages). Petitioner Jeremy Valerio, pro se, seeks habeas corpus relief under 28 U.S.C. § 2255 after pleading guilty to a two count Indictment, and was sentenced on October 15, 2003, to 151 months on Count One and a consecutive 120 month term on Count Two, for a total aggregate sentence of 271 months. The petition raises ineffective assistance of counsel and a Sixth Amendment claim under Blakely v. Washington and United States v. Booker. The Court concludes that the Booker claim must be dismissed because the sentence became final on October 15, 2003, and states that the habeas corpus application will be denied.

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 Case 1:04-cv-05098-JBS Document 12 Filed 11/09/05 Page 1 of 13 PageID: 166



                 IN THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY


JEREMY D. VALERIO,                       HONORABLE JEROME B. SIMANDLE

                  Petitioner,            CIVIL NO. 04-5098 (JBS)

      v.

UNITED STATES of AMERICA,
                                         OPINION
                  Respondent.


APPEARANCES:

Mr. Jeremy D. Valerio
#40648-050
USP Allenwood
P.O. Box 3000
White Deer, PA 17887
     Petitioner pro se

Christopher J. Christie
United States Attorney
     By: R. Stephen Stigall
          Assistant U.S. Attorney
Camden Federal Building & U.S. Courthouse
401 Market Street, 4th Floor
Camden, NJ 08101
     Attorney for Respondent

SIMANDLE, District Judge:

     Petitioner Jeremy Valerio brings this pro se civil action

for habeas corpus relief under 28 U.S.C. § 2255.          Pursuant to a

plea agreement, Petitioner plead guilty to a two count

Indictment, which charged him with (1) knowingly receiving and

possessing a firearm (i.e. a bomb) and (2) knowingly and wilfully

using, carrying and discharging a firearm (i.e. a bomb).            On

October 15, 2003, this Court sentenced Petitioner to 151 months
 Case 1:04-cv-05098-JBS Document 12 Filed 11/09/05 Page 2 of 13 PageID: 167



imprisonment on Count One and a consecutive 120 month term of

imprisonment on Count Two, for a total aggregate sentence of 271

months imprisonment.

     In his petition, Mr. Valerio raises two claims under which

he argues his sentence should be set aside or vacated pursuant to

28 U.S.C. § 2255.    First, Petitioner argues that he received

ineffective assistance of counsel.        Second, Petitioner contends

that under Blakely v. Washington, 542 U.S. 296 (2004), and United

States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), his

sentence pursuant to the United States Sentencing Guidelines

violated the Sixth Amendment.       For the reasons discussed below,

Petitioner’s habeas corpus application will be denied.

                              I. BACKGROUND

     In April 2002, Petitioner Jeremy Valerio, along with co-

conspirators Victoria Moore, Kevin Frymyer and Karl Webb,

conspired to blow up a car and a house using explosive bombs in

retaliation for a drug deal gone awry.        The conspiracy began when

Ms. Moore came into possession of the controlled substance

Ecstasy following a drug deal.       (Govt. Ex. 1 at ¶¶ 17, 24.)       On

April 14, 2002, H.W., A.H. and another male arrived at Mr.

Frymyer’s residence wishing to speak with Ms. Moore about money

she owed them from the Ecstasy deal.        (Id. at ¶ 17.)     Mr. Frymyer

engaged in a heated argument with H.W., A.H. and the other




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unidentified male while Ms. Moore hid in Mr. Frymyer’s residence.

(Id.)

       Following the incident, Mr. Frymyer, Ms. Moore, Mr. Valerio

and others drove to the residence of Mr. Frymyer’s mother-in-law.

(Id. at ¶ 18.)    There, Mr. Frymyer learned that H.W. had

threatened Mr. Frymyer’s mother-in-law and demanded that she

repay Ms. Moore’s debt.      (Id.)    Mr. Frymyer became enraged,

stating that he was “going to kill H.W.,” and subsequently

attempted to purchase a firearm.          (Id.)

       When the firearm became unavailable, Mr. Valerio suggested

the group obtain a bomb.      (Id.)    Mr. Valerio, Mr. Frymyer and

others drove to Karl Webb’s residence to purchase the bomb.             (Id.

at ¶ 19.)    After purchasing the device, Ms. Moore drove Mr.

Frymyer and Mr. Valerio to M.N.’s residence.           (Id. at ¶ 26.)    Mr.

Frymyer and Mr. Valerio got out of the car and attempted to bomb

a white Grand Prix owned by M.N.          (Id.)   The device failed to

detonate so Mr. Valerio bought another device from Mr. Webb.

(Id. at ¶¶    26, 27.)

       Later that same day, Ms. Moore and Mr. Valerio returned to

H.W.’s residence in Franklinville, New Jersey.           (Id. at ¶¶ 16,

28.)    After surveying the area, Mr. Valerio threw the device

purchased from Mr. Webb through the window of H.W.’s residence.

(Id. at ¶ 28.)    The device exploded and the ensuing fire caused

extensive damage to the interior of the residence.           (Id. at 16.)


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H.W. and A.H., pregnant at the time, were inside the residence

and were both injured while trying to escape from the fire.

(Id.)

     On December 10, 2002, a Grand Jury returned a three-count

Indictment against Petitioner.       (Def. Br. at 6.)     Subsequently,

Mr. Valerio entered a plea agreement with the United States and,

based on the negotiations, the United States agreed to dismiss

Count Three of the Indictment.       (Id. at 9.)    On June 26, 2003,

Petitioner plead guilty to Counts One and Two of the Indictment.

(Id.)   Petitioner was sentenced by this Court on October 15, 2003

to 151 months imprisonment on Count One and a consecutive 120

month term of imprisonment on Count Two for a total aggregate

sentence of 271 months.      (Id.)   Petitioner filed the instant pro

se application for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2255 on October 18, 2004.      Respondent, the United States of

America, answered on July 5, 2005.        In an August 3, 2005 order,

this Court enlarged Petitioner’s time to respond to Respondent’s

Answer until October 12, 2005.       Petitioner failed to reply to

Respondent’s Answer by this date.

                              II. DISUSSION

A.   Jurisdiction

     Title 28 U.S.C. § 2255 permits a prisoner in custody under a

sentence of a federal court to move the court which imposed the

sentence to vacate, set aside, or correct the sentence.            28


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U.S.C. § 2255; Hill v. United States, 368 U.S. 424, 426 (1962).

The prisoner may assert the right to be released upon several

grounds, including that the sentence was imposed in violation of

the Constitution or laws of the United States.          28 U.S.C. § 2255.



B.   Ineffective Assistance of Counsel Claim

     Petitioner argues that, under 28 U.S.C. § 2255, he is

entitled to relief because he was denied effective assistance of

counsel during the plea agreement and sentencing proceeding.

(Pet’r Motion at 5.)     Generally, to prevail on a claim of

ineffective assistance of counsel, a petitioner must show that

(1) counsel’s performance was deficient and (2) this deficiency

prejudiced the defense.      Strickland v. Washington, 466 U.S. 668,

687 (1984).   In meeting the first requirement, the petitioner

must show that counsel’s representation fell below an “objective

standard of reasonableness” and outside the range of competent

assistance demanded of professional criminal defense attorneys.

Id. at 688; see also United States v. Headley, 923 F.2d 1079,

1083 (3d Cir. 1991).     An evaluation of the attorney’s performance

must be from the attorney’s perspective at the time of the

alleged error, and should indulge a strong presumption that

counsel’s performance is within the wide range of reasonable

professional assistance.      Strickland, 466 U.S. at 689.       Because

of the variety of legitimate strategies by which an attorney can


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defend a client, the defendant must overcome the assumption that

the challenged action “might be considered sound trial strategy”

under the circumstances.      Id.

     As per the second requirement, in order to prove prejudice

the petitioner must show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”        Id.   Unless the

petitioner makes both showings, the applicant’s sentence cannot

be said to have resulted from a breakdown in the adversary

process.    Id. at 687.

     The Strickland two-part standard applies to ineffective

assistance of counsel claims arising out of the guilty plea

process.    Hill v. Lockhart, 474 U.S. 52, 57 (1985).         In the

context of guilty pleas, the first requirement of Strickland

remains “nothing more than a restatement of the standard of

attorney competence.”     Id. at 58.     The prejudice requirement “on

the other hand, focuses on whether counsel’s constitutionally

ineffective performance affected the outcome of the plea

process.”    Id. at 59.   Therefore, in order to satisfy this

requirement, the petitioner must show that “but for counsel’s

errors, he would not have pleaded guilty and would have insisted

on going to trial.”     Id.

     Here, Petitioner asserts in his motion, for the first time,

that his lawyer told him that if Petitioner plead guilty to 30


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years of imprisonment, the United States would recommend a

sentence of 15 years at the time of his sentencing.           (Pet.

Addendum.)   Petitioner supports his claim with a declaration

dated September 26, 2004 signed by Alex Valerio, Petitioner’s

biological father, which avers that Petitioner’s lawyer told him

of this alleged oral deal with the United States.          (Id.)

     However, the entire plea colloquy undermines Mr. Valerio’s

present claim of ineffective assistance of counsel during the

plea agreement.    On June 26, 2003, this Court conducted an

extensive plea colloquy with Petitioner, at which time he

acknowledged under oath that he fully understood the plea

agreement, and voluntarily agreed to the terms.          (Govt. Ex. 6.)

Specifically, the following colloquy occurred:

     THE COURT:        Now, have you read the indictment that
                       contains the charges against you?

     DEFENDANT:        Yes.

     THE COURT:        And do you understand the charges against
                       you?

     DEFENDANT:        Yes.

     THE COURT:        Have you gone over those charges with your
                       attorney?

     DEFENDANT:        Yes.

                                  . . .

     THE COURT:        Now have you had any difficulties
                       communicating with your attorney?

     DEFENDANT:        No.


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    THE COURT:        Are you satisfied with the services and the
                      efforts of your attorney?

    DEFENDANT:        Yes.

    THE COURT:        Is this decision to plead guilty to Counts 1
                      and 2, your own personal decision?

    DEFENDANT:        Yes.

    THE COURT:        Is anyone forcing you to plead guilty?

    DEFENDANT:        No.

                                 . . .

    THE COURT:        Now, have you read your plea agreement in the
                      case?

    DEFENDANT:        Yes.

    THE COURT:        And do you have a copy of the May 29th letter
                      in front of you?

    DEFENDANT:        Yes.

    THE COURT:        Has anyone said anything to you orally about
                      pleading guilty or about what your sentence
                      will be, that’s in any way different from
                      what’s in this written plea agreement?

    DEFENDANT:        No.

    THE COURT:        If so, tell me now, because you can’t come
                      back otherwise at the time of sentencing and
                      say something different. So, is there
                      anything different?

    DEFENDANT:        No.

                                 . . .

    THE COURT:        Has anyone promised you what your sentence
                      will actually be?

    DEFENDANT:        No.



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     THE COURT:        Do you understand that even though you’re
                       pleading guilty, that there is no agreement
                       as to what your sentence will be?

     DEFENDANT:        Right, yes.

(Id. at 10:11-19; 11:14-24; 12:6-23; 13:16-22.)          There is, to say

the least, a formidable barrier against setting aside a guilty

plea where a defendant’s solemn declarations in open court

demonstrated the lawfulness of the plea.         Blackledge v. Allison,

431 U.S. 63, 73-74 (1977).      Such declarations carry “a strong

presumption of verity.”      Id. at 74.    Here, the entire plea

colloquy undermines Mr. Valerio’s present claim of ineffective

assistance of counsel due to counsel’s alleged misrepresentation

of Petitioner’s prison term during the plea agreement.           Mr.

Valerio’s petition offers no reason to reexamine his own words

and understandings upon the record of his case.

     Petitioner also argues that he did not receive effective

assistance of counsel during sentencing because counsel allegedly

advised the Court to impose a more severe sentence on him.             (Pet.

Addendum.)   As support, Petitioner claims that his counsel

purportedly advised the Court that Mr. Valerio failed to show any

remorse for the crime.     (Id.)    Therefore, counsel allegedly

recommended that the Court impose a severe sentence on Petitioner

and requested that Mr. Valerio be placed in a penitentiary,

presumably based on counsel’s statements to the Court that

Petitioner received structure in his life while in prison.             (Id.)


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     However, counsel’s statements during the sentencing prove

otherwise.   During Petitioner’s sentencing on October 15, 2003,

counsel requested that the Court impose a sentence at the bottom

end of the guideline range.      (Govt. Ex. 7 at 5:17-20.)

Therefore, Petitioner’s claim is without merit.          In addition,

counsel never asked the Court to place Mr. Valerio in a

penitentiary.     To the contrary, counsel specifically recommended

to the Court that Petitioner be placed at FCI:

     MR. GREENBERG: I would ask your Honor . . . [to] consider
                    recommending Fairton Correctional Institute
                    so he can have visits from his family.

     THE COURT:        I will recommend Fairton.

(Id. at 7:3-7.)     Moreover, Petitioner misinterprets counsel’s

statement requesting a structured environment for his place of

incarceration.     In response to the Court’s question of how

Petitioner had reached such a stage in his life, counsel

suggested that the lack of structure in Petitioner’s life was a

contributing factor into why he committed the crimes to which he

plead guilty.     (Id. at 7:18-25.)      Such an argument by counsel

states a commonly understood and reasonable argument for

leniency, or for a second chance for a client who did not have

any advantages in life.     Here, Counsel’s statement falls within

the wide range of reasonable professional assistance.

Strickland, 466 U.S. at 689.




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     Lastly, Petitioner fails to establish that he was prejudiced

by the representation of his counsel.        Here, Petitioner

explicitly admitted his own guilt and failed to assert in his

petition that but for counsel’s actions he would have insisted on

going to trial.    Additionally, this Court used particular care

during the plea colloquy and sentencing to ensure that Petitioner

understood the terms of the plea agreement and that he in fact

received a sentence at the bottom of the guideline range.           Since

Petitioner failed to meet both requirements under Strickland,

Petitioner’s claim of ineffective assistance of counsel has no

merit and both the plea agreement and sentencing did not result

from a breakdown in the adversary process.

C.   Substantive Claim under Blakely and Booker

     Petitioner also attempts to raise a claim under Blakely and

Booker.   Since Petitioner is arguing that his sentence under the

United States Sentencing Guidelines violated the Sixth Amendment,

his claim is really a claim under Booker, which announced the new

rule.   Petitioner’s conviction became final on October 15, 2003.

However, the United States Supreme Court did not render its

decision in Booker until January 12, 2005.

     In Lloyd v. United States, 407 F.3d 608, 612-613 (3d Cir.

2005), the Third Circuit Court of Appeals held that Booker

announced “a new rule of criminal procedure for purposes” of

Teague v. Lane, 489 U.S. 288 (1989).        Under Teague, “a new rule


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of criminal procedure ‘will not be applicable to those cases

which have become final before the new [rule is] announced.’”

407 F.3d at 611 (quoting Teague, 489 U.S. at 310).          The Third

Circuit also ruled that because Blakely “reserved decision about

the status of the Federal Sentencing Guidelines, and Booker

established a new rule for the federal system,” “[i]t is the date

on which Booker issued, rather than the date on which Blakely

issued, that is the ‘appropriate dividing line.’”          Lloyd, 407

F.3d at 611-612 n.1 (quoting McReynolds v. United States, 397

F.3d 479, 481 (7th Cir. 2005)).

     The Third Circuit also concluded that the rule announced in

Booker does not fall within Teaque’s narrow exception for

“‘watershed rules of criminal procedure implicating the

fundamental fairness and accuracy of the criminal proceeding.’”

Lloyd, 407 F.3d at 613 (internal citation omitted).          The Third

Circuit emphasized:

     [I]n the opinion authored by Justice Breyer, the
     unconstitutionality of the Guidelines was remedied by
     excising the provision, at 18 U.S.C. § 3553(b)(1), that
     made their application mandatory. See Booker, 543 U.S.
     at    , 125 S. Ct. at 756-757. By creating an advisory
     federal sentencing regime, the Booker Court did not
     announce a new rule of criminal procedure that
     significantly increases the “certitude” or “accuracy”
     of the sentencing process . . . because defendants’
     sentences “would be determined in the same way if they
     were sentenced today; the only change would be the
     degree of flexibility judges would enjoy in applying
     the guideline system.”




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Lloyd, 407 F.3d at 615 (internal citations omitted) (quoting

McReynolds, 397 F.3d at 481).

     The Third Circuit thus concluded that “[b]ecause Booker

announced a rule that is ‘new’ and ‘procedural,’ but not

‘watershed,’ Booker does not apply retroactively to initial

motions under § 2255 where the judgement was final as of January

12, 2005, the date Booker issued.”       Lloyd, 407 F.3d at 615-616.

Based on this, Petitioner’s Booker claim must be dismissed

because his sentence became final on October 15, 2003.

                            III. CONCLUSION

     For the reasons stated above, Petitioner’s 28 U.S.C. § 2255

habeas corpus application will be denied.        The accompanying Order

is entered.




November 9, 2005                         s/ Jerome B. Simandle
DATE                                     JEROME B. SIMANDLE
                                         United States District Judge




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