The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner, Vincent Watson ("Watson"), proceeding pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Watson seeks to have his sentence vacated, set aside or corrected claiming that his Sixth Amendment rights were violated because he was denied effective assistance of counsel. For the reasons that follow, the petition is denied.
On September 26, 2003, Watson entered into a plea agreement in which he agreed to plead guilty to two counts of a four-count Indictment dated April 17, 2003 charging him with a violation of Title 18, United States Code, Section 924(c), possession of a firearm in furtherance of a drug trafficking crime, Title 21, United States Code, Section 841(a), possession with the intent to distribute crack cocaine, and Section 844, felony possession of crack cocaine, and Title 21, United States Code, Section 844(a), simple possession of marijuana. Pursuant to the Plea Agreement, Watson's plea of guilty was limited to a violation of Title 18 United States Code, Section 924(c)(1) (gun Count) and a violation of Title 21, United States Code, Section 841(a)(1) (drug Count).
Pursuant to ¶ 14 of the plea agreement, the parties agreed that, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the Court would impose a sentence of 157 months as the appropriate sentence in this case. Section VI of the plea agreement provided that, should the defendant Watson provide substantial assistance to the Government by way of cooperation, the Government may move for a reduction of his sentence pursuant to Guidelines § 5K1.1. Also an important aspect of the sentencing scheme, Watson also agreed that should he be sentenced within or less than the sentencing range of 157-181 months as set forth in ¶ 13 of the plea agreement, then he would not be permitted to either appeal or collaterally attack his sentence. By letter dated July 13, 2004, the Government moved for a downward departure based on Watson's cooperation pursuant to Guidelines § 5K1.1 and on July 26, 2004, this Court ultimately sentenced Watson to a term of incarceration of 145 months. No appeal was taken from the Judgment of Conviction.
On August 1, 2005, Watson filed this petition pursuant to 28 U.S.C. § 2255 to have his sentence vacated claiming he was denied effective assistance of counsel for counsel's advising him to plead guilty to a charge for which he was innocent and/or the elements could not have been proven and for counsel's failure to file a motion to suppress evidence. On August 5, 2005, Watson filed a second petition pursuant to U.S.C. § 2255 based on the same claims as the first petition. By Order dated August 22, 2005, the two petitions were consolidated into a single proceeding.
Section 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).
A. Knowing and Voluntary Waiver
Watson explicitly waived his right to appeal or collaterally attack any sentence within the stipulated guideline range. (See 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). A defendant's decision to waive his right to appeal is not enforceable when "the waiver was the result of ineffective assistance of counsel." Monzon at 118-119. None of these circumstances exists here. Watson'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 placed petitioner under oath and determined that he was competent to enter a plea. (See Plea at 4) The Court determined that petitioner had sufficient time to discuss the case with his attorney and that he was satisfied with his attorney. (See Plea at 4-5) Petitioner acknowledged that he fully understood the plea agreement and that he was pleading voluntarily. (Plea at 4-6) The Court focused petitioner's attention on the waiver provision in the plea agreement and ensured petitioner's understanding that he was waiving his rights to both appeal and to collaterally attack the sentence. (Plea at 7) The Court informed Watson of the consequences of pleading guilty and that the sentence of incarceration would be 157 months. (Plea at 6) The Court specifically advised Watson that it was entirely in the Court's discretion whether to accept a downward departure motion and that ...