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August 24, 1994

MIGUEL RIVAS, Petitioner.


The opinion of the court was delivered by: HARRY D. LEINENWEBER


 On April 11, 1991, petitioner, Miguel Rivas ("Rivas"), met with a confidential informant ("CI") working with agents of the Drug Enforcement Administration ("DEA") at a tavern located at 4346 South California Avenue in Chicago, Illinois. The purpose of the meeting was to conclude a previously-negotiated sale of five kilograms of cocaine. Petitioner's initial encounter with the CI had taken place at the same tavern two days earlier, on April 9, 1991. At that time, the CI told petitioner that he was a drug dealer and was interested in buying cocaine in large quantities. Petitioner said that he could sell up to five kilograms for $ 22,500 each. They exchanged beeper numbers and agreed to contact each other to make arrangements for the transaction. They spoke on the phone the next day, April 10, 1991, and agreed to meet again at the same tavern on South California. At that meeting, petitioner told the CI that he would come to the tavern at noon the following day in a car equipped with a secret compartment in which the cocaine would be stored, and that they would exchange the money and the cocaine on a side street.

 When the CI met petitioner at the tavern on April 11, 1991, the CI was informed that petitioner changed the plan. Petitioner told the CI that the car containing the cocaine was located at his house at 60th and Lawndale Streets in Chicago, and that the transaction would take place there. Both got into the CI's car, and the CI drove, at petitioner's direction, to a house with an attached garage at 3720 West 60th Street. Petitioner led the CI into the garage, where a silver 2-door Cadillac was parked. Petitioner manipulated some buttons underneath the dashboard, causing a secret compartment in the right rear to open. The compartment contained five packages containing approximately one kilogram of cocaine each. Petitioner opened one of the packages to display the contents to the CI, and said that it was good quality. The CI agreed to make the purchase, and said that he had the money in his car.

 Before the CI could leave the house, petitioner expressed concern that there were police surveillance cars in the area. It was agreed that the CI would drive his car to the alley behind the house, and petitioner would bring the cocaine out to him. However, when the CI got to the alley, petitioner came out and said he would not complete the transaction while the police were in the area. He told the CI to leave, and that he would call him another time. The DEA agents, maintaining surveillance, obtained a search warrant for the house, the garage, and the car, which they executed on the afternoon of April 11, 1991. In the compartment petitioner had opened to display the packages to the CI, they found five kilograms of cocaine. Laboratory analysis of the contents established that the net weight of the cocaine found by the agents, stripped of the packaging, was 5033 grams, and that it was 94 percent pure. A second compartment was found in the car, and it contained an additional three kilograms of cocaine (net weight 3022 grams, between 87 percent and 89 percent pure). Petitioner was aware of the three kilograms of cocaine in the second compartment, but he had not been charged by the source of supply with its distribution.

 Petitioner was sentenced on September 17, 1991. The United States District Court which sentenced him (Judge Nicholas Bua, presiding) found: that the base offense level was 32, regardless of whether the calculation was based on five kilograms or eight; that petitioner was entitled to a two-point reduction for acceptance of responsibility; that his criminal history category was I; and that the resulting United States Sentencing Guidelines ("Sentencing Guidelines") range was 97-121 months. However, since the offense of conviction involved at least five kilograms of cocaine (it was stipulated during the plea colloquy that the net weight of the cocaine in the packages displayed to the CI was 5033 grams), the mandatory minimum 10-year provision of 21 U.S.C. § 841(b)(1)(A)(ii) applied, thus making the effective sentence range 120-121 months. Petitioner received the minimum possible sentence, 120 months. There were no objections to the presentence investigation or to the court's findings, and no direct appeal was taken.

 Nineteen months after the imposition of sentence, petitioner filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. In his motion, and in a "supplement" to it, petitioner raises four substantive claims of error: (1) that the sentencing court determined his offense level based on the eight kilograms of cocaine found in the car instead of the five kilograms alleged in the count of the conviction; (2) that his offense level should have been reduced by three points for acceptance of responsibility instead of the two points that the court reduced it by; (3) that he was not mentally competent to enter a guilty plea at the time of his change of plea; and (4) that his court-appointed attorney rendered ineffective assistance in failing to seek a competency hearing, and in failing to advise him of his right to appeal his sentence. Petitioner has also requested that a hearing date be set in order for him to orally argue the issues set forth in his petition.


 To obtain habeas relief, a federal prisoner must generally file a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Section 2255 provides four grounds that justify relief for a federal prisoner who challenges the imposition or length of his or her detention:

(1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; and (4) that the sentence is otherwise subject to collateral attack.

 28 U.S.C. § 2255. If the court determines that any of these grounds exist, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id.

 After reviewing the prisoner's motion, the United States Attorney's answer, and any transcripts or records of prior court actions in the matter, the judge shall determine whether an evidentiary hearing is required. Rule 8(a) of the Rules Governing Section 2255 Proceedings. Under section 2255, "if there is no reason to suppose that a hearing would produce evidence justifying the grant of a new trial, there is no reason to hold a hearing." U.S. v. Taglia, 922 F.2d 413, 419 (7th Cir. 1991), cert. denied, McDonnell v. U.S., 500 U.S. 927, 111 S. Ct. 2040, 114 L. Ed. 2d 125 (1991). In other words, "a judge should dismiss the petition without a hearing if it plainly appears from the facts of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief." Liss v. U.S., 915 F.2d 287, 290 (7th Cir. 1990) (citations omitted). "If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice dictates." Id.

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