policies underlying that decision." Trujillo, 1993 U.S. Dist. LEXIS 8456, 1993 WL 227701, at *3.
These precedents are instructive to the resolution of the present petition. Without examining the merits of petitioner's waiver of § 2255, it is clear that his waiver of appeal precludes him from attacking the merits of his plea agreement, and Pipitone bars him from doing so collaterally absent other cause for his delay in asserting the claim. Ramirez has asserted that his attorney failed to present evidence that could have shown that the substance he pleaded guilty to distributing was a substance other than crack cocaine. Accordingly, Ramirez asserts that it was erroneous for him to have been sentenced under the harsher sentencing requirements mandated for crack cocaine offenses. Instead, Ramirez contends that the proper sentencing range was 24 to 30 months, the applicable sentencing range for a cocaine offense involving the amounts alleged in his case. As previously noted, Ramirez was actually sentenced to 70 months imprisonment, a period well below the stipulated range of 87 to 108 months. Thus, Ramirez is attempting, through a § 2255 petition, to do what he was barred from doing on direct appeal. After Pipitone, this is clearly impermissible when a petitioner, like Ramirez, knowingly and voluntarily executed a plea agreement containing a waiver of the right to appeal.
II. Assertion of a Claim of Ineffective Counsel
Nevertheless, because of the requirement of a knowing and voluntary waiver of the right to appeal, a petitioner should not be deemed to have waived the right to challenge his sentence on the basis that his plea or waiver was not knowing and voluntary, including by asserting that the ineffective assistance of his counsel deprived him of the ability to make a knowing and voluntary plea. Cf. Magee v. Romano, 799 F. Supp. 296, 299 (E.D.N.Y. 1992) (observing, in examining a petition under 28 U.S.C. § 2254, that a waiver of appeal "does not prevent [petitioner] from challenging the voluntariness of his plea," including by challenging "whether the plea was based on the advice of competent counsel"). Accordingly, the Court must examine petitioner's ineffective assistance of counsel claim.
The Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), articulated a two-pronged test to determine whether a claim of ineffective assistance of counsel was established. The test requires a petitioner to show (1) that his attorney's representation was unreasonable under "prevailing professional norms," and (2) that but for the deficiency, there is a reasonable probability that "the result of the proceeding would have been different." Id. at 688, 694; see also United States v. Coffin, 76 F.3d 494, 498 (2d Cir. 1996). In Hill v. Lockhart, 474 U.S. 52, 57, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985), the Supreme Court held that the Strickland test was "applicable to ineffective-assistance claims arising out of the plea process."
In applying the Strickland test, "judicial scrutiny of counsel's performance must be highly deferential" and "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. The inquiry focuses "on the fundamental fairness of the proceeding whose results are being challenged." Id. at 696. "The court's central concern is not with 'grading counsel's performance' but with discerning 'whether despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.'" United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 696-97).
Ramirez contends that his counsel was ineffective because his attorney failed to challenge the Government's characterization of the drugs involved in his offense as crack cocaine. Thus, he argues that because of the uncontested characterization, he was erroneously subjected to a more severe sentence than he would have faced if charged with an offense involving the same amounts of any other cocaine substance. Ramirez's argument is unconvincing and is flatly contradicted by the record.
Numerous times throughout his plea allocution, Ramirez voluntarily admitted his participation in a plan to distribute crack cocaine. In fact, Ramirez himself was the first person at the plea allocution to mention the existence of crack cocaine. See Tr. at 3. Ramirez also made statements clearly evidencing his understanding that by pleading guilty to possession of crack cocaine with an intent to distribute it, he was subjecting himself to heightened sentencing penalties. Id. at 3, 19-20. Specifically, Ramirez stated to the Court that Congress was considering a change in the law regarding crack cocaine offenses which, if passed, would eliminate the enhanced penalties for such offenses. Id. at 3. Ramirez then indicated that this change would affect his sentence. Id. Thus, unlike the defendant in United States v. James, 78 F.3d 851 (3d Cir. 1996), who casually adopted the references to "crack" without evincing a full understanding of the impact of such a plea, Ramirez indicated by his words and conduct that he was fully cognizant of the implications of his admissions. Finally, petitioner's extensive discussion with the prosecutor about the precise nature of the offense to which he pleaded guilty demonstrates that petitioner knowingly and voluntarily admitted that he transported crack cocaine. At his plea allocution, the following exchange occurred among Ramirez, his attorney Labe M. Richman, Esq., and the Assistant United States District Attorney:
Q. From May of last year, 1994, up until December 14 of 1994, had you entered into an agreement to come to an understanding with others to violate the narcotics laws of the United States by selling cocaine and crack cocaine?
A. No, I started working in June.