The opinion of the court was delivered by: William M. Skretny United States District Judge
1. On June 29, 2005, Petitioner Alfred Cooper filed a Motion pursuant to 29 U.S.C. § 2255, requesting that the Court vacate, set aside, or correct his sentence.*fn1 Therein, Petitioner alleges that his plea was not knowing and voluntary and that he is entitled to be re-sentenced under United States v. Booker, 543 U.S. 220, 224, 125 S.Ct. 738, 160 L.Ed. 2d 621 (2005).*fn2
2. The relevant facts underlying Petitioner's plea and sentence are as follows. On October 23, 2003, Petitioner appeared before this Court, executed a Waiver of Indictment, and pled guilty to a one-count Information charging him with possession with intent to distribute and distribution of heroin within 1,000 feet of a public housing facility in violation of 21 U.S.C. § 860. That charge carried a possible maximum sentence of 40 years imprisonment, a $2,000,000 fine, or both. (Plea Agree., ¶ 1).*fn3
Under the terms of the Plea Agreement, Petitioner and the Government agreed that his total offense level, including a reduction for acceptance of responsibility, was 12, and that his criminal history category fell between a category IV and VI, resulting in a sentencing range of 30 to 37 months imprisonment, a fine of $3,000 to $2,000,000, and a period of supervised release of 6 years. (Plea Agree., ¶¶ 7-10)
Included in the Plea Agreement is Petitioner's acknowledgment that he knowingly waives the right to appeal, modify pursuant to Title 18, United States Code, Section 3582(c)(2), and collaterally attack any sentence imposed by the Court which falls within or is less than the sentencing range for imprisonment, a fine and supervised release set forth in Section II, above, notwithstanding the fact that the Court may reach the sentence by a Guidelines analysis different from that set forth in this agreement.
On March 19, 2004, this Court sentenced Petitioner to a 30-month term of imprisonment and a 6-year term of supervised release. The Clerk of the Court filed Judgment against Petitioner on March 31, 2004. (Docket No. 42). Petitioner did not appeal his conviction or sentence.
3. Twenty-eight U.S.C. § 2255 allows federal prisoners to challenge the constitutionality of their sentences.That section provides, in pertinent part, that:
[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.
It is well-settled that a federal prisoner may not use 28 U.S.C. § 2255 as a substitute for a direct appeal. United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998); see also Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed. 2d 277 (1994) ("Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal."). This is particularly true in cases where, as here, the petitioner was convicted pursuant to a guilty plea. Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998) (noting that "the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas") (quoting United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed. 2d 634 (1979)).
The Second Circuit has held that a "collateral attack on a final judgment in a criminal case is generally available under [Section] 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.'" Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)). Under 28 U.S.C. § 2255, Petitioner bears the burden of proving such a fundamental defect. See Galviz Zapata v. United States, 431 F.3d 395, 399 (2d Cir. 2005) (citingWilliams v. United States, 481 F.2d 339, 346 (2d Cir. 1973)).
Moreover, it is axiomatic that a defendant's knowing and voluntary waiver of the right to appeal a sentence within an agreed upon sentencing range is enforceable. See, e.g., United States v. Hernandez, 242 F.3d 110, 113 (2d Cir.2001); United States v. Djelevic, 161 F.3d 104, 106 (2d Cir.1998).*fn4 The change in sentencing law ushered in by Booker has not altered this general rule. The Second Circuit has determined that "an otherwise valid plea agreement and waiver of right to appeal a sentence, entered into before January 12, 2005, is enforceable even if the parties, at the time they entered into the agreement, erroneously believed that the United States Sentencing Guidelines were mandatory rather than advisory." United States v. Roque, 421 F.3d 118, 124 (2d Cir. 2005).
4. In the present case, Petitioner contends that his guilty plea -- and the waiver of his right to appeal his sentence included therein -- was not knowing and voluntary, because this Court "failed to explicitly mention the provision during the plea colloquy." (Pet. Mem., p. 5). This contention is belied by the transcript of Petitioner's October 23, 2003 plea colloquy. As previously noted herein, the written Plea Agreement, which was signed by Petitioner and his attorney, contains a waiver of his appeal rights. During Petitioner's plea colloquy, he represented to this ...