The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
On October 24, 2005, petitioner Jeffery S. Tschetter, proceeding pro se, filed the instant motion pursuant to 28 U.S.C.§2255, seeking to set aside, vacate or correct his sentence*fn2 . On December 19, 2005 the respondent filed a response and memorandum in opposition. On January 17, 2006, petitioner filed a traverse (reply) to the response and the matter was submitted to the Court for decision on February 3, 2006.
On March 4, 2004, petitioner was charged, in a three-count indictment, with violations of 18 U.S.C.§922(g)(1), 21 U.S.C. §§841(a)(1) and 844(a) - to wit, unlawful and knowing possession, in and affecting commerce, of a firearm by a felon; possession with intent to distribute a Schedule I controlled substance (marihuana); and possession of a substance and mixture containing a Schedule III controlled substance (hydrocodone). On August 13, 2004, petitioner appeared before this Court, executed a written plea agreement and entered a plea of guilty to the firearm possession charge (count one of the indictment). On January 14, 2005, this Court sentenced petitioner to a 52 month term of imprisonment, three years supervised release, no fine and a special assessment of $100. The remaining counts in the indictment were dismissed. Petitioner took no appeal from either the conviction or sentence.
The gravamen of this motion asserts ineffective assistance of counsel for failure to file a Notice of Appeal or Rule 35*fn3 correction of sentence motion. Petitioner claims that he instructed his attorney to file a Notice of Appeal because he believed that his criminal history was misrepresented and/or misinterpreted, and that the attorney failed to do so. He further claims that the attorney should have filed a Rule 35 motion in light of the United States Supreme Court's decision in United States v. Booker (543 U.S. 220 (2005), decided just two days prior to his sentence, wherein the United States Sentencing Guidelines were essentially declared advisory rather than mandatory.
28 U.S.C. §2255 allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under §2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. In sum, collateral relief under §2255 is intended "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 .'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir.1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Petitioner's motion alleging ineffective assistance of counsel, implicates constitutional concerns pursuant to (1), above.
The issue herein began with petitioner's belief at the time of the plea and at sentencing, that a twenty year old burglary conviction was improperly used to increase his criminal history category. Petitioner claims that he complained to his counsel about the misrepresentation of his criminal history "during the plea colloquy and the agreement that materialized thereafter" and that he "specifically" and "adamantly" told defense counsel to file an appeal of his sentence both before and after the pronouncement of sentence on January 14, 2005. He further claims that seven months later, when he inquired of his counsel of the status of his appeal, counsel claimed that the issue of appeal was never discussed. Petitioner also claimed that his common law wife had conversations with defense counsel regarding the appeal. Petitioner waived his attorney-client privilege and invited respondent to provide an affidavit from his defense counsel on this issue. No such affidavit was forthcoming. Petitioner replied that, "when the government's answer and affidavits are not conclusive against the movant, and if they raise disputed issues of fact [in a §2255 motion], a hearing must be held". (citing Machibroda v. United States, 368 U.S. 487 (1962)).
The respondent does not address this claim and instead argues that it is irrelevant because the old burglary conviction to which petitioner refers*fn4 was not used to enhance his criminal history category and thus, there was no sentencing issue to appeal. Further, respondent points out that, pursuant to the terms of the plea agreement, petitioner waived his right to appeal, modify or collaterally attack any sentence imposed by the Court which falls within, or is less than, the Sentencing Guidelines recommended range. It is undisputed that the Court's sentence was within this range.
This case is on all fours with, and falls squarely within the parameters of, Campusano v. United States (442 F.3d 770 (2d Cir. 2006)), wherein the United States Court of Appeals for the Second Circuit stated:
"The question presented in this case is whether an attorney who fails to file a notice of appeal requested by his client is constitutionally ineffective when the client waived appeal in his plea agreement. We hold that even after a waiver, a lawyer who believes the requested appeal would be frivolous is bound to file the notice of appeal and submit a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). When counsel fails to do so, we will presume prejudice, as required by Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and the defendant will be entitled to a direct appeal without any showing on collateral review that his appeal will likely have merit."
442 F.3d 771 - 72 (2d Cir. 2006). While Campusano was decided subsequent to the sentencing (and even the filing of the petition) herein, the caselaw which forms the underpinnings of its holding existed well prior. The authority of Campusano, therefore,is controlling and directs that the petition herein be granted if it is found that petitioner instructed his attorney to file the notice of appeal.
The Court, however, finds that there are factual questions with respect to whether petitioner made such an instruction herein. Petitioner submits, in sworn affidavit form, his statement and that of his common-law wife, that on the date he was sentenced he verbally instructed his attorney, Mr. Anthony Lana, to "appeal whatever sentence was given" but that Lana gave no response to the request. Petitioner acknowledges that when he contacted Lana in August 2005 to inquire of the status of the appeal, Lana claimed that the issue of appeal was never discussed prior to this latter date. Petitioner's common-law wife, Kelly Harrington, affirmed, however, that she contacted Lana in June, 2005 to inquire about the status of the appeal and was told by Lana that he did not have petitioner's file in his office and that there was nothing else that he could do because petitioner had already ...