The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner, Dennis W. Hale ("Hale"), proceeding pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Hale seeks to have his sentence vacated, set aside or corrected claiming that his Fifth and Sixth Amendment rights were violated because he did not fully understand his sentencing rights, he was induced by fear to enter his plea and he was denied effective assistance of counsel. For the reasons that follow, the petition is denied.
On February 17, 2004, Hale entered into a plea agreement agreeing to plead guilty to a one-count Indictment dated October 30, 2003 charging him with a violation of Title 18, United States Code, §§ 922(g)(1) and 924(a)(2), knowing possession of ammunition. On February 17, 2004, Hale plead guilty to the charge and on June 28, 2004, this Court sentenced Hale to a term of incarceration of 37 months followed by three years of supervised release.
On July 22, 2005, Hale filed this petition pursuant to 28 U.S.C. § 2255 to have his sentence vacated claiming: (1) that his plea was not voluntary because (a) he was induced by fear of an enhanced sentence, (b) he did not fully understand his sentencing rights, and (c) he was forced to waive the right to appeal the sentence and conviction; (2) the prosecutor failed to prove intent to commit harm or injury to a person while possessing the shotgun shells; (3) that the shotgun shells are not bullets or ammunition within the meaning of the statute and that the shells did not travel via interstate commerce; and (4) that he was denied effective assistance of counsel.
28 U.S.C. § 2255 authorizes collateral relief when a "sentence was imposed in violation of the Constitution or laws of the United States," when the court "was without jurisdiction to impose such sentence," or when "the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack."
28 U.S.C. § 2255. Construing the limited range of issues subject to collateral review, the Supreme Court and the Second Circuit have held that "an error of law does not provide a basis for collateral attack (under § 2255) unless the claimed error constituted 'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235 (1979), quoting, Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468 (1962).
Hale explicitly waived his right to appeal or collaterally attack any sentence within the stipulated guideline range. (See Plea Agreement at ¶15) "A defendant's waiver of the right to appeal a sentence within an agreed upon Guidelines range is generally enforceable." United States v. Garcia, 166 F.3d 519, 521 (2d Cir. 1999); United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998)(holding waivers of collateral attacks under § 2255 are similarly enforceable). "When the government negotiates a plea agreement with a defendant that includes waiver of the right to appeal, one benefit the government is supposed to receive . . . is freedom from having to address post-conviction arguments." Latham v. United States, 164 F.Supp.2d 365, 367 (S.D.N.Y. 2001). It "would render the plea bargaining process and the resulting agreement meaningless" if a defendant could appeal a sentence that conforms with the plea agreement. United States v. SalcidoContreras, 990 F.2d 51, 53 (2d Cir. 1993).
In only very limited circumstances will a court not enforce a waiver of appellate rights, such as; if the petitioner did not make the waiver knowingly, voluntarily, or competently; the sentence was based on constitutionally impermissible factors; or the sentencing court failed to explain a rationale for its sentence. United States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004); United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000). None of these circumstances exist here. Hale's agreement was entered into knowingly and voluntarily, and with awareness of his waiver of appeal and collateral attack. United States v. Stevens, 66 F.3d 431, 437 (2d Cir. 1995).
Prior to accepting petitioner's plea, the Court questioned petitioner under oath and determined that he was competent to enter a plea. (See Plea at 3) The Court determined that petitioner had sufficient time to discuss the case with his attorney and that he was satisfied with his attorney representation and assistance. (See Plea at 3-4, 8-10) Petitioner acknowledged that he fully understood the plea agreement and that his plea was being made voluntarily. (Plea at 3). The Court directed petitioner's attention to the waiver provision in the plea agreement and was satisfied that petitioner understood that he was waiving his rights to both appeal and to collaterally attack the sentence. (Plea at 7) The Court informed Hale of the consequences of pleading guilty and that the sentence of incarceration would fall within the range of 37 to 46 months. (Plea at 6) Indeed, the Court specifically advised Hale that it was entirely in the Court's discretion whether to accept a downward departure motion. (Plea at 7-8) In view of Hale's statements at the plea hearing, the Court concluded that petitioner knowingly waived his right to collaterally attack his sentence under 28 U.S.C. § 2255.
Even if this petition were not specifically prohibited by the terms of petitioner's plea agreement, each of his arguments nonetheless fail. Petitioner did not appeal his sentence. To succeed on any of his claims raised in his petition, he would have to demonstrate cause for failing to raise the issue on appeal and the resulting prejudice, or actual innocence. Bousley v. United States, 523 U.S. 614, 622 ...