The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
On June 26, 2002, Tucson VanLoo ("VanLoo") pleaded guilty to
violating 21 U.S.C. § 846, before the late Judge Allen G.
Schwartz, and was subsequently sentenced to 151 months in prison.
VanLoo has filed the instant motion pursuant to 28 U.S.C. § 2255
("§ 2255") to vacate, set aside or correct his sentence. For the
reasons outlined herein, petitioner's motion is denied.
On October 30, 2001, VanLoo was arrested in Delaware while in
possession of two kilograms of cocaine. He later admitted that
his intent was to deliver that cocaine to Baltimore from New
York. In his June 26, 2002, guilty plea VanLoo acknowledged
participating in a conspiracy to distribute in excess of one
kilogram of heroin and five kilograms of cocaine in violation of
21 U.S.C. § 846. During the course of his plea allocution
Petitioner stated under oath that he understood the charges
against him and the rights he was waiving by pleading guilty;
that he was satisfied with the representation and advice given to
him by his attorney Richard Jasper, Esq.; that he wished to plead
guilty and was doing so voluntarily; and that he was guilty of
conspiring to distribute at least one kilogram of heroin and five
kilograms of cocaine as charged in the indictment. Plea Tr. at
6-12.*fn1 Judge Schwartz determined VanLoo to be competent
and accepted the plea.
As part of the plea agreement VanLoo entered into with the
government, he agreed that so long as his sentence was within a
Guidelines Range of 151 and 188 months as determined by an
offense level of 33 and a criminal history category of II, he
would not appeal or otherwise litigate under the sentence
imposed. This agreement included not only a waiver of the right
to appeal the sentence directly, but also to attack it collaterally under sections 2255 and 2241
of 28 U.S.C. On September 30, 2002, Judge Schwartz sentenced
VanLoo to a term of imprisonment of 151 months, the low end of
the Guidelines range. United States Sentencing Commission,
Guidelines Manual, § 2D1.1 (Nov. 2002).
VanLoo did not contest his sentence on direct appeal. Instead,
pro se, VanLoo has filed a § 2255 petition seeking relief from
his sentence on constitutional grounds. He challenges the length
of his sentence on the basis that he was unconstitutionally
denied effective assistance of counsel. VanLoo claims his lawyer
failed to make him "savvy" to the law on scope of participation,
thereby leaving him unaware of to what, exactly, he was pleading
Petitioner's ineffective assistance argument is not entirely
clear. The government reads his petition to suggest that VanLoo's
attorney, Richard Jasper, Esq., should have arranged for him to
plead guilty without signing a plea agreement. Theoretically,
doing so would have allowed VanLoo to argue for a "Minor Role
Adjustment". The Court, on the other hand, believes VanLoo to be
suggesting that his counsel was an ineffective negotiator who should have negotiated
for VanLoo to receive a more favorable plea agreement and a
I. VanLoo has NOT waived his right to file a § 2255 motion.
The initial question the court must address is whether VanLoo's
plea agreement bars him from bringing an appeal on the grounds of
ineffective counsel. The Second Circuit has held repeatedly that,
short of extraordinary circumstances, a knowing and voluntary
waiver of the right to appeal a sentence within or below a
stipulated Guidelines Range shall be enforced. United States v.
Djelevic, 161 F.3d 104, 106 (2nd Cir. 1998); United States v.
Yemitan, 70 F.3d 746, 747-48 (2nd Cir. 1995). To permit
defendants to appeal a sentence conforming to the plea agreement
"would render the plea bargaining process and resulting agreement
meaningless." United States v. Salcido-Contreras, 990 F.2d 51,
53 (2nd Cir. 1993).
The Government contends that VanLoo, by signing the plea
agreement, has waived his right to challenge his conviction on any grounds. Although the Second Circuit has held
that a defendant's right to appeal his sentence may be waived, it
has never directly held that such plea agreements foreclose
appeal in every circumstance. United States v. Ready,
82 F.3d 551, 555 (2d Cir. 1996); Yemitan, 70 F.3d at 748. It has been
implied, though never explicitly held, that the Second Circuit
would not view a waiver of a right to appeal in a plea agreement
to apply to a claim of ineffective assistance of counsel.
Ready, 82 F.3d at 555-56; see also United States v.
Hernandez, 242 F.3d 110, 113-14 (2nd Cir. 2001) ("We have
suggested that a plea agreement containing a waiver of the right
to appeal is not enforceable where the defendant claims that the
plea agreement was entered into without effective assistance of
counsel."); Djelevic, 161 F.3d at 107 ("Nor does [defendant]
suggest that he received ineffective assistance of counsel in
entering the plea agreement, an argument which, we have
suggested, might cast doubt on the validity of his waiver."). In
light of the implications in the Second Circuit opinions referred
to above, the Court holds that, despite signing a plea agreement
that included a waiver of the right to appeal, Petitioner has not
foreclosed himself from appealing on the grounds of ineffective assistance
of counsel at the time the plea agreement was entered into.
The Court's decision on this aspect of petitioner's motion is
consistent with the general trend throughout the federal court
system. Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.
1999) (holding that a waiver of the right to appeal or file a §
2255 motion is unenforceable when the defendant claims
ineffective assistance of counsel with regard to the agreement
which effected the waiver); United States v. Henderson,
72 F.3d 463, 465 (5th Cir. 1995) (holding that "dismissal of appeal based
on a waiver in the plea agreement is inappropriate where the
defendant's motion incorporates a claim that the plea agreement
generally, and the defendant's waiver of appeal specifically,
were tainted by ineffective assistance of council"); United
States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) ("We doubt
that a plea agreement could waive a claim of ineffective
assistance of counsel based on counsel's erroneously
unprofessional inducement ...