The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Patrick Hillendale, proceeding pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 requesting that his sentence, imposed by this Court pursuant to a plea agreement, be set aside or corrected because his defense counsel provided ineffective assistance for failing to object to his criminal history calculation and for failing to appeal the sentence. Additionally, petitioner claims that the criminal history category calculation used in his presentence report was incorrect because the government relied on unauthenticated documents.
The government opposes Hillendale's petition, on grounds that, inter alia, the plea as a whole and the waivers within, were made intelligently, knowingly, and voluntarily, and, thus the petitioner presents no basis upon which the requested relief can be granted.
On February 5, 2004, a federal grand jury returned an Indictment against the defendant, Patrick Hillendale, charging him with a violation of 18 U.S.C. § 922 (g)(1), being a felon in possession of a firearm and ammunition. The charge carries a maximum possible sentence of a term of imprisonment of ten (10) years, a fine of up to $250,000, or both, and a term of supervised release of at least two (2) years and up to three (3) years.
On May 25, 2004, pursuant to a written plea agreement with the government, Hillendale entered a guilty plea to Count 1 of the Indictment. The plea agreement called for the Court to impose an agreed sentence of 84 months incarceration in accordance with Rule 11(c)(1)(C)of the Federal Rules of Criminal Procedure. As part of his plea, Hillendale specifically agreed that he would not appeal or collaterally attack any sentence of imprisonment equal to the agreed 84 months.
On August 10, 2004, this Court sentenced Hillendale to an 84-month term of imprisonment-the exact term agreed upon in the plea agreement, together with a three-year term of supervised release, and a special assessment of $100. Hillendale did not directly appeal his conviction or sentence.
On July 28, 2005, Hillendale filed this motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.
I. Waiver of Appeal and Collateral Attack
The Second Circuit has held:
[A] defendant who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence [may not] then appeal the merits of a sentence conforming to the agreement. Such a remedy would render the plea bargaining process and resulting agreement meaningless.
United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.), cert denied, 509 U.S. 931 (1993). The rationale for this ...