Scibetta v. United States, 30 F. Supp. 2d 813 (D.N.J. 1998)

Jerome A. Ballarotto, Trenton, NJ, for Petitioner.

Laura J. Kaplan, Assistant United States Attorney, U.S. Attorney's Office, Newark, NJ, for Respondent.

COOPER, District Judge.

This matter comes before the Court on the motion of pro se petitioner Dominick Scibetta to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. On November 20, 1998, pursuant to Memorandum Opinion filed herein on November 23, 1998, the Court appointed counsel to represent petitioner in further proceedings in this Court. On November 30, 1998 the parties appeared and presented oral argument based upon the record of the underlying criminal trial, Crim. Docket No. 95-462-01, on the issue of whether petitioner should have been entitled to a three-level downward adjustment in offense level based upon United States Sentencing Guideline § 2X1.1(b) (2). Before presenting its argument, the government stated its agreement with the conclusion set forth in said Memorandum Opinion that petitioner's sentence for his conviction of conspiracy under 18 U.S.C. § 1951 should have been calculated under § 2X1.1. At the conclusion of the arguments of both parties, the Court ruled that based upon the facts as appearing in the record, petitioner was not entitled to a downward adjustment under § 2X1.1(b) (2), and that the Petition must be denied. Further, the Court held for the reasons set forth in said Memorandum Opinion, note 5, that the pending motion to amend the Petition should be denied. For the foregoing reasons,

IT IS on this 1st day of December, 1998,

ORDERED AND ADJUDGED that the Petition herein, setting forth petitioner's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence, be and hereby is DENIED; and

IT IS FURTHER ORDERED that the motion to amend the Petition (No. 12 on the docket) is DENIED; and

IT IS FURTHER ORDERED that the motion for bail pending decision on the Petition (No. 15 on the docket) is DENIED AS MOOT; and

IT IS FURTHER ORDERED that the motion for leave to file a reply brief or to *814 strike the government's sur-reply brief (Nos. 17-1 and 17-2 on the docket) is DENIED AS MOOT; and

IT IS FURTHER ORDERED that the above-captioned matter be and hereby is DISMISSED WITH PREJUDICE; and

IT IS FURTHER ORDERED that pursuant to Federal Rule of Appellate Procedure 22(b) and 28 U.S.C. § 2253, this Court declines to issue a certificate of appealability.