MEMORANDUM-DECISION AND ORDER*fn1
Petitioner, William Cobb ("Petitioner" or "Cobb"), was arrested on October 7, 2002 for six counts of distributing crack cocaine. Govt's Brief (Dkt. No. 3) at 2. Petitioner pled guilty to one count (count six) of the indictment and the other five counts were dropped pursuant to a written plea agreement. Id. Petitioner admitted that on October 4, 2002, he possessed with intent to distribute more than 5 grams of crack cocaine to a confidential informant in the Northern District of New York. Id. The plea agreement also specified that Petitioner waived his right to attack a sentence of a 120 months or less, and that the agreement was limited to the Northern District of New York and not binding on any other District. Plea Agreement (Dkt. No. 4, Ex. C).
On October 27, 2003, a Rule 11 proceeding was held to ensure that Petitioner understood his rights and the consequences of signing the plea agreement. Govt's Brief (Dkt. No. 3) at 2. The transcript of the proceeding shows that Petitioner signed the plea agreement voluntarily. Plea Hearing (Dkt. No. 4, Ex. B). The Court also informed Petitioner that by signing the agreement, he waived the right to attack a sentence of less than 120 months. Plea Agreement (Dkt. No. 4, Ex. C). On April 22, 2004, Cobb was sentenced to 120 months incarceration and 8 years of supervised release. Govt's Brief (Dkt. No. 3) at 2-3.
Petitioner thereafter appealed to the Second Circuit. Id. at 3. Petitioner's attorney concluded that, after reviewing the record, there was no appealable issue that would be wholly non-frivolous. Anders Brief (Dkt. No. 4, Ex. A). Accordingly, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967), asking to be relieved as counsel. Id. The Second Circuit agreed with counsel, relieved counsel of his duties and denied the appeal. Govt's Brief (Dkt. No. 3) at 3; Mandate (Case No. 1:02-cr-0403, Dkt. No. 73).
Petitioner, acting pro se, now petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255. Petitioner's Petition (Dkt. No. 1). Petitioner alleges that he received ineffective assistance of counsel because (1) his appellate counsel filed an Anders brief against his wishes and (2) the plea agreement was not properly explained to him by counsel. Id. at 3-4. Petitioner further claims that the Government did not adhere to the plea agreement by allowing the U.S. Attorney for the Eastern District of New York to file additional charges. Id. at 4.
A waiver of the right to appeal a sentence contained in a valid plea agreement is enforceable. United States v. Morgan, 406 F.3d 135, 137 (2d Cir. 2005); United States v. Booker, 543 U.S. 220 (2005). Petitioner waived his right to attack his sentence of 120 months. His plea agreement specifically states:
WILLIAM COBB acknowledges that, after consultation with his defense counsel, he fully understands his rights to appeal, and/or to collaterally attack under 28 U.S.C. §2255, the sentence in this case. The Defendant waives all rights,... to appeal or collaterally attack any sentence of imprisonment of 120 months or less...
Plea Agreement (Dkt. No. 4, Ex. C) at ¶13.
Furthermore, during the Rule 11(b) proceeding, Petitioner specifically stated that he understood the above paragraph of the plea agreement. Plea Hearing (Dkt. No. 4, Ex. B) at 16-17. Petitioner knowingly and voluntarily waived his right to attack his sentence and, therefore, his Petition under 28 U.S.C. § 2255 is dismissed.
However, even if Petitioner did not waive his rights to attack his sentence, the Court finds that Petitioner's individual claims fail on the merits as well. Petitioner's claims are addressed below.
B. Ineffective Assistance of Counsel
For a habeas corpus petitioner to prevail on a claim of ineffective counsel, he must satisfy the two-part test as established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). First, the petitioner must establish that his attorney's performance "fell below an objective standard of reasonableness", and second, the petitioner must establish that there is a "reasonable probability" that but for counsel's error, the outcome of his case would have been different. Strickland,466 U.S. at 688-694. The Strickland test was originally formulated for claims of ineffective counsel in trial court proceedings, however later cases have applied the same test to appellate counsel. See, e.g., McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); Mayo ...