The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Now before the Court is the pro se petitioner's application to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the application is denied.
28 U.S.C. § 2255 Section 2255 provides, in relevant part, as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255. "[A] collateral attack on a final judgment in a federal criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." U.S. v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (citation omitted). The Court may dismiss a section 2255 petition without conducting a hearing if the petition and the record "conclusively show" that petitioner is not entitled to relief. 28 U.S.C. § 2255. As will be seen below, petitioner's arguments and submissions do not merit an evidentiary hearing.
The facts of this case were accurately set forth in Respondent's Response [#52] and Supplemental Response [#53] in this action, and need not be repeated in their entirety. For purposes of the instant Decision and Order, it is sufficient to note the following facts. In late June 2005, members of the Rochester Police Department used confidential informants to make purchases of marijuana from the downstairs apartment at 40 High Street ("the apartment") in the City of Rochester. On July 5, 2001, members of the Rochester Police Department executed a search warrant at the apartment. During the search police seized marijuana, a safe, a $20 bill in a kitchen drawer, and a firearm. Following the execution of the search warrant, the police searched petitioner, who was present in the apartment, and found on his person marijuana, as well as $500 in U.S. currency. According to police, petitioner made a statement to them that he had purchased the safe, and that he was aware of the $20 bill found in the kitchen drawer. During booking, petitioner also reportedly told police that 40 High Street was his residence.
Petitioner was indicted in case number 04-CR-6002 for violating 18 U.S.C. § 924(c)(1) (possessing a firearm in furtherance of a drug-trafficking crime) and 21 U.S.C. § § 841(a)(1) and 841(b)(1)(D) (possessing with intent to distribute marijuana). Petitioner was represented by Robert G. Smith, Esq. ("Smith"), Assistant United States Public Defender. Smith filed pre-trial motions, in which he sought, inter alia, to suppress the search and seizure of petitioner's person following the execution of the search warrant, as well as the statements petitioner allegedly made to the police. Smith also filed a motion seeking the disclosure of the identities of confidential informants. Following a hearing held on May 14, 2004, the Court granted petitioner's motion to suppress petitioner's statements concerning pedigree information in the government's case, but otherwise denied the application.
Petitioner's jury trial on indictment 04-CR-6002 began on May 24, 2004. At the close of the government's case, Smith moved for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The Court denied the application. Petitioner testified at trial. On May 27, 2004, the jury returned a verdict of guilty on both counts of the indictment.
Subsequently, on July 27, 2004, petitioner was charged in Indictment Number 04-CR-6054 with violations of 18 U.S.C. § 371 (conspiracy to commit offenses against the U.S.) and 18 U.S.C. § 922(a)(1)(A) (unlawfully engaging in the business of dealing firearms). Smith was assigned to represent petitioner on these charges.
Prior to sentencing in case 04-CR-6002, petitioner dismissed Smith as his attorney and retained new counsel, Louis Pilato, Esq. ("Pilato"). However, as Pilato indicated in an appearance before the Court on September 24, 2004, he was not retained to represent petitioner as to Indictment No. 04-CR-6054, but rather, Smith was continuing to represent petitioner in that case.
On October 25, 2004, in case 04-CR-6002, the Court sentenced petitioner to, inter alia, 60 months imprisonment on Count 1 of the indictment, and one (1) month imprisonment on Count 2, to be served consecutively to the sentence on Count 1. Pilato subsequently filed a Notice of Appeal on November 3, 2004.
On November 16, 2004, petitioner and the Government entered into a plea agreement in case 04-CR-6054. In the agreement, petitioner agreed to plead guilty to violating 18 U.S.C. § 922(a)(1)(A), in order to receive a sentence of not more than 33 months imprisonment. Moreover, petitioner agreed to withdraw his appeal in case 04-CV-6002, and to waive his right to appeal or collaterally attack his convictions or sentences in case 04-CR-6002 and case 04-CR-6054. Specifically as to the instant case, the plea agreement stated, in relevant part:
The defendant further agrees to knowingly waive appeal, modify pursuant to Title 18, United States Code, Section 3582(c)(2) and collaterally attack the conviction and sentence of 61 months imposed by the court in the case of Unites States v. Adrian King 04-CR-6002 CJS.
Upon sentencing, the defendant and counsel shall discontinue the appeal in the case of United States v. Adrian King 04-CR-6002 CJS.
(04-CR-6054, Plea Agreement pp. 11-12). The plea agreement, which the Court observed petitioner sign, further stated:
I have read this agreement, which consists of 16 pages. I have had a full opportunity to discuss this agreement with my attorney, Robert G. Smith, Esq. I agree that it represents the total agreement reached between myself and the government. No promises or representations have been made to me other than what is contained in this agreement. I understand all of the consequences of my plea of guilty. I fully agree with the contents of this agreement. I am signing this agreement voluntarily and of my own free will.
(Id. at 16). Both Smith and Pilato were present in court during petitioner's plea colloquy.
At the time of the plea agreement in case 04-CR-6054, the Court conducted an extensive plea colloquy, some relevant ...