This matter comes before the Court on the motion of pro se рetitioner Dominick Scibetta to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. As set forth in this Memorandum Opinion, the Court is of the view that defendant has presented good grounds for the Court to conclude that his sentence was calculated improperly under the Guidelines, and that petitioner has met his burden of establishing ineffective assistance of counsel limited to that issue.
For this reason, the Court will appoint counsel to represent petitioner in this proceeding, and will afford the parties an opportunity to address the sentencing issue which is discussed and analyzed in this Memorandum Opinion. No ordеr adjudicating the matter will be entered until the parties have had an opportunity to present their further arguments to the Court.
BACKGROUND
Petitioner and three co-defendants were indicted in a one-count Indictment filed on September 7, 1995. The Indictment charged that on or about November 4, 1991, at Union City, New Jersey, the defendants conspired to obstruct, delay and affect commerce by robbery, in violation of 18 U.S.C. § 1951, a Hobbs Act offense. He was convicted by jury verdict rendered on February 12, 1996. 1
Petitioner received a sentence of 34 months imprisonment and three years of supervised release, with waiver of any fine. The sentence was within the Guideline range of 33 to 41 months, as calculated in the Presentence Investigation Report (“PSR”), which was approved by the Court without objection by either party. (Sent. Hr’g Tr. at 2-3, 11-12.) 2 That calculation was based upon Section 2B3.1(a) of the United States Sentencing Guidelines (“USSG” or “Guidelines”), which assigned a base offense level of 20, with no specific offense or other adjustments, and a criminal history category of I. (PSR ¶¶ 31-41, 44, 65.)
Petitioner filed a timely appeal of his conviction and sentence, but the appeal was not perfected and was administratively dismissed by consent on August 28,1996. Petitioner timely filed the present motion under 28 U.S.C. § 2255 on May 13, 1997. 3 The *713 motion presents no factual issues requiring an evidentiary hearing. 4 . •
DISCUSSION
A. Petitioner’s Allegations
Section 2255 of Title 28, United States Code, provides that a prisoner in custody under sentence of a federal court may move before the court which imposed the sentence to vacate, correct, or set aside a sentence, on the grounds 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.
28 U.S.C. § 2255. The instant Petition seeks to vаcate, set aside or correct the' sentence on the ground that petitioner should have been sentenced under USSG § 2X1.1, which pertains to certain conspiracies, rather than under the robbery guideline, § 2B1.3. (Pet. ¶¶ 12A, 12B; Pet. Reply Br. at 6-11.) Petitioner asserts that if § 2X1.1 is applicable, then under the facts of his case he should have been entitled to a three-level downward adjustment pursuant to § 2Xl.l(b)(2). (Id.) That Guideline section provides in pertinent part:
PART X OTHER OFFENSES
1. CONSPIRACIES, ATTEMPTS, SOLICITATIONS
§ 2X1.1 Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline)
(a) Base Offense Level: The base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.
(b) Specific Offense Characteristics
(2) If a conspiracy, decrease by 3 levels, unless the defendant or a eo-conspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the substantive offense or the eircum- ■ stances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control.
USSG § 2X1.1.
Petitioner claims that the failure to raise this issue at sentencing and on appeal constituted ineffective assistance of counsel, entitling him to relief on his § 2255 motion. (Pet.H 12B.) Subsequent to filing the Petition Scibetta moved to amend to assert additional grounds for relief, but he withdrew most of those allegations during the briefing process and we have determined that the remaining issue lacks merit. 5 Accordingly, we will di *714 rect our attention to the Guideline issue raised in the Petition.
B. ■ Procedural Issues
Petitioner is barred from collaterally attacking his sentence pursuant to 28 U.S.C. § 2255 so far as that attack is based upon alleged errors that could have been, but were not, raised on direct appeal.
See United States v. Frady,
Where, as here, a petitioner presents an issue in his § 2255 motion which was not raised at trial or on direct appeal, the petitioner must show both cause and prejudice for his waiver to be excused.
United States v. Biberfeld,
“[Cjause under the cause and prejudice test must be something external to the petitioner that cannot be fairly attributable to him.... ”
Coleman v. Thompson,
A petitioner need not, however, demonstrate cause and prejudice when he raises a claim of ineffective assistance of counsel initially in a § 2255 motion. The Third Circuit has clearly stated its preference that such claims be addressed in the first instance by the district court under a § 2255 motion.
See United States v. Nahodil,
The Sixth Amendment provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to “reasonably effective counsel.”
Day,
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makеs both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland,
The appropriate measure of attorney performance is “reasonableness under prevailing professional norms.”
Id.
at 688,
The second prong of the
Strickland
test requires the petitioner to show that counsel’s deficient performance prejudiced the defense. Thus, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”
Id.
at 691,
Here petitioner alleges error in the application of the Guidelines by this Court which, if established, would give rise to “prejudice” as that term is defined, because it would have a substantial effect on the outcome of the sentencing. Therefore, we will turn to an analysis of that issue. The burden of proving a claim of ineffective assistance of counsel is on petitioner.
Gov’t of the Virgin Islands v. Nicholas,
C. The Guideline Issue
It is undisputed that the 1995 version of the Guidelines was applicable in petitioner’s case. 6 (U.S. Sentencing Guidelines Manual (Nov.1995); PSR ¶30.) The following discussion is in reference to the 1995 version except where otherwise noted.
The offense conduct in this case consisted of a conspiracy detected by an ongoing state investigation which involved wire interceptions and surveillance observations. (PSR ¶¶ 7-19.) The object of the conspiracy was to rob an employee of an entertainment ticket agency as he made his regular morning one-block walk from a bank to the agency with cash and tickets to be used in the day’s business. (Id. ¶¶ 10-14.) The robbery was planned to take place on November 7, 1991. (Id. ¶ 11.) Petitioner went to that location on the two previous days, with various of the alleged co-conspirators, to watch the scene. (Id. ¶¶ 15, 16.) On the morning of the planned robbery, petitioner and the three co-defendants were at the appоinted time and place, but did hot carry out the robbery. (Id. ¶¶ 18, 19.) Local police conducted an uneventful traffic stop of the four individuals, several minutes after the planned robbery and several blocks away from the location, at *716 a time when the intended victim had completed his walk to and from the bank without incident. Neither the local police nor the four individuals were made aware that the state police had knowledge of- the conspiracy. (Id.) The state police investigation and surveillance continued for a lengthy period thereafter, although the planned robbery was never again attemрted or carried out. Petitioner and his co-defendants were arrested in 1995 on the federal conspiracy charge contained in the Indictment, which had arisen as a result of the state police investigation. (Id. ¶¶ 19-23.)
Petitioner was convicted under the section of the Hobbs'Act which provides in pertinent part that:
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, ... [shall be punishable under this section].
18 U.S.C. § 1951(a). His offense level was calculated under USSG § 2B3.1, which contains the following provision:
PART B - OFFENSES INVOLVING PROPERTY
3. ROBBERY, EXTORTION, AND BLACKMAIL
§ 2B3.1 Robbery
(a) Base Offense Level: 20
USSG § 2B3.1(a). (PSR ¶31.) The Commentary to that section expressly states that it is applicable to offenses under 18 U.S.C. § 1951. 7 Likewise, the Guidelines Statutory Index correlates 18 U.S.C. § 1951 with USSG § 2B3.1. USSG App. A. Petitioner’s sentence was not calculated to include any possible reduction under USSG § 2X1.1(b)(2), quoted above, for the specific offense characteristic generally allowing a three-level reduction for a conspiracy unless the described exceptions apply. (PSR ¶ 32.) In the course of the sentencing hearing neither the Court nor the parties considered whether Section 2Xl.l(b)(2) might be applicable in petitioner’s case. (Sent. Hr’g Tr. at 2-3, 11-12.)
Petitioner contends that his Hobbs Act robbery conspiracy conviction should have been sentenced under USSG § 2X1.1 rather than under § 2B1.3. Section 2X1.1, if applicable, would have given petitioner the opportunity to advocate that he was entitled to the' three-point downward adjustment available under § 2X1.1(b) (2) for an incomplete conspiracy. In support of his argument petitioner cites a 1995 decision of the Court of Appeals for the Second Circuit and its progeny in that circuit and elsewhere, which we will discuss below.
See United States v. Amato,
Based upon our analysis of the relevant portions of the Guidelines and existing case authority, we believe that the rule announced in Amato could well have been discovered and presented to this Court in the 1996 sentencing of petitioner. We are further of the view that if such an argument had been raised by defense counsel in connection with the sentencing, this Court would have followed the Amato rule in making the Guideline calculations in his case.
We must state at the outset that the legal issue now presented by petitioner is not without difficulty, and the courts have wrestled with the proper interpretation of the Guidelines in this resрect. Thus, in this discussion we will examine Amato in the context of the relevant Guideline materials and prior and subsequent case history.
The defendants in
Amato,
like petitioner here, were convicted of conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951.
Amato,
Defendants contended on appeal in Amato that the sentencing court, in applying § 2B3.1, should not have added two levels under § 2B3.1(b)(6) for amount of the loss, because the loss was merely intended and not realized. Id. Defendants argued that unlike § 2X1.1(a), which clearly allowed enhancement for intended but unrealized loss, the loss enhancement under § 2B3.1 was available only when loss had actually occurred. The Court of Appeals agreed with that interpretation of § 2B3.1, but set aside the sentence on different grounds. The Court held that based upon its interpretаtion of Amendment 481 to the Guidelines, effective November, 1993, the district court should have sentenced the Hobbs Act robbery conspiracy conviction under Section 2X1.1 rather than under 2B1.3. Id. at 1261-63. Under that interpretation, the government would be able to argue in favor of upward adjustments based upon any intended offense conduct that could be established with reasonable certainty, and defendants could seek the three-level decrease for uneompleted conspiracy if warranted by the facts. 8 Id.
The holding in
Amato
represented a departure from the prior Second Circuit authority established in
United States v. Skowronski,
The court in
Amato
rejected the “offense language theory,” stating that it viewed that discussion in
Skowronski
to have been mеrely “supportive reasoning, rather than basic justification, for treating Hobbs Act conspiracies under § 2B3.1, rather than § 2X1.1.”
Amato,
The 1992
Skowronski
rule was of course applied in the Second Circuit before
Amato
was decided.
See United States v. Fried
man,
A review of the ease law thus demonstrates that in the years since Amato was decided there has been no dispute that a robbery conspiracy under the Hobbs Act is to be sentenced under Guideline Section 2X1.1. The same body of post-Amato ease law reveals that the “offense language theory” has been abandoned in the interpretation of that section. For example, in Goldberg, the Second Circuit, discussing its decision in Amato, explained:
[In Amato ] a different panel of this Court [than the panel that decided Skowronski ] concluded that the “determinative passage in § 2X1.1(c)(1) makes this turn not on the content of the criminal statute in question, but rather on whether the Guidelines assign the particular class of conspiracy to a section other than the general conspiracy section.”
Goldberg,
Although the Guideline issue raised in this case has not been addressed in a reported decision of our Court of Appeals, our rеview of the pertinent Guideline sections and related materials leads us to conclude that the Third Circuit would reach the same conclusion as did the Second Circuit in
Amato,
either on the reasoning relied upon there or upon its own interpretive analysis.
12
Our conclusion on this point would likely have been the same at the time of petitioner’s sentencing, if defense counsel had raised the issue for resolution at that time. Therefore, it appears that petitioner has met his burden of showing deficient representation under the first prong of
Strickland. See Strickland,
*720
The second part of the
Strickland
test requires that petitioner also demonstrate prejudice, defined as a likelihood that but .for the error(s) of counsel, the result of the proceeding would have been different.
Id
In this case, if petitioner were to be sentenced as provided in § 2X1.1, his base offense level would be that of the Guideline for the substantive offense under § 2B3.1, plus any permitted upward adjustments under § 2X1.1(a). Petitioner’s Presentence Investigation Report recommended, and the parties and the Court agrеed, that the calculation under § 2B3.1 (without reference to § 2X1.1) produced a base offense level of 20, with no upward adjustments. (PSR ¶¶ 31-36.) The calculation of base offense level under § 2X1.1(a) would likely produce the same total, based on the offense conduct here. At that point petitioner would be entitled to advocate for the three-level downward adjustment under § 2X1.1(b)(2), and based on the facts of record he would have a good argument favoring that adjustment.
See, e.g., United States v. Medina,
If the three-point adjustment were granted, the resulting total offense level would be reduсed from 20 to 17, and the corresponding range for imprisonment (in criminal history category I) would be 24 to 30 months rather than the original 33 to 40 month range. See USSG Ch., 5 Pt. A (sentencing table). Clearly, such a reduced guideline range would have a significant effect upon petitioner’s resulting sentence. Therefore, it also appears that he has satisfied the second prong required under Strickland. Id.
D. Procedure under 28 U.S.C. § 2255
Petitioner, proceeding pro se and assisted by an inmate paralegal, cited and discussed the Amato line of cases only upon the filing of his Reply Brief, after'the government had provided its Answer and Brief in Opposition to the § 2255 motion. (Pet. Br. at 7-8.) Therefore, no further response from the government was requirеd. It would seem appropriate, however, to give the government a fair opportunity to consider the views which we have expressed in this opinion and to present, oral argument, if it requests. In the same light we also deem it prudent.to appoint counsel to represent petitioner in any further proceedings on the matter in this Court, if petitioner would so request. Thus if the relief which he seeks is granted, we would anticipate not an evidentiary hearing but an abbreviated resentencing hearing at which the underlying facts would be addressed and he would have representation. See Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 8(c) (appointment of counsel).
CONCLUSION
For the reasons stated, the Court will conduct further proceedings as set forth above. An appropriate order adjudicating petitioner’s motion under 18 U.S.C. § 2255 will be entered upon the completion of those proceedings.
Notes
. The trial also resulted in a guilty verdict against defendant James Donato. Mr. Donato was similarly sentenced and appealed, but like petitioner he did not perfect his appeal and the appeal was dismissed. He filed no motion under 28 U.S.C. § 2255. The jury was unable to reach a unanimous verdict as to the other two defendants, and we declared a mistrial. Prior to the retrial of those defendants, they entered into plea agreements, pled guilty and were sentenced. Neither of them appealed or filed a § 2255 motion.
. In addition to the § 2255 motion filed herein, which we will cite as Petition ("Pet.”), the record in this matter includes the following: (1) Government’s Answer and Memorandum in Opposition, with exhibits ("Gov.Br.”); (2) Petitioner’s Rebuttal and Memorandum ("Pet.Br.”); (3) Indictment filed 9-7-95; (4) Presentence Investigation Report dated 4-23-96 ("PSR”); (5) Transcript of Sentencing Hearing dated 6-6-96 ("Sent. Hr’g Tr.”); (6) Judgment of Conviction filed 6-20-96; (7) Notice of Appeal filed 6-21-96; and (8) Administrative Order from the Court of Appeals dismissing appeal filed 8-28-96.
. A onе-year time limit for filing a § 2254 or 2255 motion was introduced by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, Title I, § 105, 110 Stat. 1220 (April 24, 1996). The Judgment of Conviction in this case was filed on June 20, 1996, and the direct appeal was dismissed on September 3, 1996. See note 2. The § 2255 motion was filed on May *713 13, 1997. Measured from either of the former dates, the motion was timely. See 18 U.S.C. § 2255 ("A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of (1) the date on which the judgment of conviction becomes final;....”). Accordingly, the motion in this case was timely filed.
. This Court is able to rule on petitioner's § 2255 motion without an evidentiary hearing. The motion, the record and the files, viewed in the light most favorable to petitioner, conclusively show that the petitioner is not entitled to relief other than that discussed herein. Under such circumstances an evidentiary hearing is not required. See
United States v. Friedland,
. The only ground of petitioner's proposed amended petition which he has not withdrawn pertains to his claim that a tape was provided to counsel for two of his co-defendants during the discovery period in preparation for their retrial after the hung jury as to them in the first trial. . (The latter two defendants subsequently entered into plea agreements, so no later trial was conducted.) That tape was apparently not provided to petitioner or his counsel in discovery leading to the first trial, at which petitioner was convicted. (Pet. Br. at 11.) We have reviewed the transcript of the tape, and it is our firm conclusion that the failure to produce it does not meet the standard for granting a new trial on
Brady
grounds.
See Brady v. State of Maryland,
. The 1995 version of the Guidelines was the appropriate one to use in this case, because it was the version in effect at the time of sentencing, and the version in effect at the time of the offense would not have provided a more favorable result. See USSG § 1B1.11, Policy Statement (court shall use Guidelines Manual in effect on date the defendant is sentenced, unless using that date rather than the date of offense would result in ex post facto violation).
. The relevant language of the Commentary is as follows:
Statutory Provisions: 18 U.S.C. §§ 1951,2113, USSG § 2B3.1, comment.2114, 2118(a), 2119. For additional statutory provision(s), see Appendix A (Statutory Index).
. The reversal of the sentence in
Amato
was accompanied with remand instructions that inasmuch as the offense conduct occurred before the effective date of the November, 1993 amendments, and the sentencing date occurred subsequently, the district court should calculate thе sentence under the prior version as well, and select the result which would be more favorable to defendants.
Amato,
. That Guidelines section provided in its entirety:
Hobbs Act Extortion or Robbery
Apply § 2B3.1 (Robbery), § 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage), § 2B3.3 (Blackmail and Similar Forms of Extortion), or § 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right), as applicable.
Commentary
Statutory Provision: 18 U.S.C. § 1951.
USSG § 2E1.5 (effective Nov. 1, 1989, see USSG App. C, amend. 145).
. The court in Skowronski stated this reasoning as follows:
Section 2X1.1(c) instructs that "[w]hen an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section, apply that guideline section.” We do not interpret this instruction, as it applies to conspiracies, to mean that the word "conspiracy” itself must appear in the "[ ]other” guideline to be applied; rather, we also consider conspiracy to be expressly covered by a given guideline if the guideline expressly covers a stated statutory section and that section expressly prohibits conspiracy.... Thus, where the statutory *718 section defining the offense of conviction prohibits conspiracy, and that section is expressly covered by a particular guideline, the offense level provided by that guideline is controlling, and § 2X1.1 does not apply.
Skowronski,
. The court in Amato expressed its holding on this point as follows:
■When Skowronski was decided [in 1992], § 2E1.5 of the Guidelines expressly referred Hobbs Act violations tó various other guidelines, including § 2B3.1 for Hobbs Act robberies (and, by inference, Hobbs Act conspiracies). That provision, however, was deleted from the Guidelines. USSG App. C, amend. 481 (Nov. 1993). As noted above, § 2X1.1 covers conspiracies in all cases, except when “conspiracy is expressly covered by another offense guideline section.” USSG § 2X1.1(c)(1). The deletion of § 2E1.5, with its crossreference to § 2B3.1, deletes the provision of the Guidelines that provided the "express” reference making § 2X1.1 inapplicable. With that provision gone, nothing remains in § 2B3.1 (Robbery) to suggest, much less "expressly” state, that it intends to cover conspiracies.
We conclude that this change in the text of the Guidelines requires a return to tire problem decided in Skowronski. Now that there is no longer a provision of guidelines directing Hobbs Act conspiracies to § 2B3.1, they are covered by the conspiracy guideline, § 2X1.1.
Amato,
. If the Court of Appeals for the Third Circuit were to address this issue, we suggest that it might determine that a more correct analysis, leading to the same result, would be as follows. We believe that a plain reading of the relevant Guideline sections, both before and after the 1993 amendments, supports the conclusion that § 2X1.1 gоverns sentencing of a Hobbs Act conspiracy conviction under 18 U.S.C. § 1951. Section 2X1.1, both before and after 1993, provides in part that "[wjhen an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section, apply that guideline section.” USSG § 2X1.1(c)(1). All other conspiracies are covered by § 2X1.1. The Commentary to that section identifies offense guidelines that expressly cover conspiracies. § 2X1.1, comment, (n.1). When § 2E1.5 existed, prior to its deletion by Amendment 481, it referred Hobbs Act violations to the following sections: § 2B3.1 (robbery), § 2B3.2 (extortion), § 2B3.3 (blackmail), or § 2C1.1 (bribe or official extortion), as aрplicable. When § 2E1.5 was deleted, the Statutory Index was correspondingly amended in the line referenced for 18 U.S.C. § 1951 by deleting "2E1.5” and inserting in lieu thereof "2B3.1, 2B3.2, 2B3.3, 2C1.1." USSG App. C, amend. 496 (Nov. 1, 1993). That same amendment made numerous changes to the Commentary to § 2X1.1.
Id.
Significantly, however, .that Commentary never identified either § 2E1.5 or §§ 2B3.1, 2B3.2, 2B3.3 or 2C1.1 as offense guidelines expressly covering conspiracies, either before or after the 1993 amendments.
Compare
USSG § 2X1.1, comment. (Nov. 1992)
with
USSG § 2X1.1, comment. (Nov.1993). Furthermore, each of the Guidelines sections which is listed in that portion of the Commentary has the express word "conspiracy” in its title or commentary.
See Demory,