The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
On April 21, 2006, petitioner Dwight Davis, proceeding pro se, filed the instant petition*fn2 pursuant to 28 U.S.C.§2255 ("§2255"), seeking to set aside, vacate or correct his sentence (Dkt. #40)*fn3 . On June 7, 2006, respondent filed a Motion to Dismiss the petition or an extension of time to file an answer in the event that the motion to dismiss is denied. The matter was submitted to the Court for decision on July 14, 2006.
BACKGROUND AND DISCUSSION
On September 6, 2002, petitioner pled guilty, in accordance with a plea agreement and upon waiver of indictment, to a one count information charging him with a violation of 21 U.S.C. §§841(a)(1), to wit - possession with intent to distribute a Schedule I controlled substance ("crack" cocaine). The sentencing date was repeatedly adjourned due to, inter alia, petitioner's purported ongoing cooperation with other government investigations. At the sentencing hearing on April 8, 2005 the Court granted the government's motion for a downward departure and sentenced petitioner under the Guidelines to a 37 month term of imprisonment, five years supervised release, no fine and a special assessment of $100. The pending criminal complaint was dismissed and petitioner was allowed to voluntarily surrender himself when notified of his designation by the Bureau of Prisons. It is undisputed that petitioner took no appeal from this sentence.*fn4
The gravamen of the petition seeks re-sentencing by the Court because, some time between the date of the plea and the date of sentence, the Bureau of Prisons cancelled its Shock Incarceration Program ("shock camp") and petitioner alleges that his eligibility for such was relied upon*fn5 when the Court sentenced him, therefore its cancellation would "necessitate a different sentencing outcome".
Respondent seeks to dismiss the petition on several grounds. First, it is undisputed that petitioner did not appeal the sentence imposed. Respondent therefore argues that he is procedurally barred from filing the instant §2255 petition. Second, petitioner's waiver of his right to appeal or collaterally attack the sentence in the plea agreement is sufficient basis for dismissal of the petition.
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 fell within, or was less than, the Sentencing Guidelines range stipulated and set forth in the plea agreement. The sentencing range stipulated in the plea agreement was between 51 and 63 months but also contemplated a possible motion by the government for a downward departure for substantial assistance. That motion was made and accepted by the Court at the time of sentencing, resulting in a sentence which undisputedly was less than the Sentencing Guidelines range set forth in the plea agreement.
More particularly, petitioner executed the subject plea agreement on September 6, 2002. It states therein that:
"The defendant understands that Title 18, United States Code, Section 3742 affords a defendant a limited right to appeal the sentence imposed. The defendant, however, 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 Guideline analysis different from that set forth in this plea agreement." Dkt. #28, ¶16).
It is well settled that a defendant may waive his/her right to appeal a sentence in a plea agreement. See 18 U.S.C.§3742(c); United States v. Ready, 82 F.3d 551, 555 (2d Cir. 1996); United States v. Yamitan, 70 F.3d 746, 748 (2d Cir. 1995). These waivers of appellate rights are valid and enforceable when they are entered into knowingly, intelligently and with the effective assistance of counsel, even when grounds for appeal arose after the plea agreement was executed. United States v. Monsalve, 388 F.3d 71, 73 (2d Cir. 2004); see also United States v. Rodriguez, 416 F.3d 123, 128 - 29 (2d Cir. 2005); United States v. Hayes, 412 F.3d 37, 38 (2d Cir. 2005)(per curiam); United States v. Morgan, 406 F.3d 135, 136 - 37 (2d Cir. 2005); United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000); Yametan, 70 F.3d at 747 - 48. This enforceable waiver also applies when a defendant agrees to waive the right to collaterally attack his/her sentence, as is done with a motion pursuant to §2255. Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001).
Nowhere in the petition herein is it alleged that the plea was unknowingly, involuntarily or not intelligently given. Because the petitioner does not challenge the validity of his guilty plea*fn6 and the sentence was within the terms of the plea agreement, petitioner's waiver of his right to collaterally attack his sentence is enforceable and the instant §2255 petition is necessarily prohibited and must be dismissed. E.g. Happy v. United States, 2005 WL 1579808 (W.D.N.Y. 2005) (Skretny, J)(plea agreement waiver enforceable even when court actually recommended the "shock camp" at sentencing and it was later abolished); see e.g., DeBarros v. United States, 2006 WL 2546492, *2 (W.D.N.Y. 2006) (Arcara, CJ) (waiver enforceable even when transfer to Canadian correctional facility, as contemplated in the plea agreement, was subsequently denied); Masterana v. United States, 2006 WL 328382 (W.D.N.Y. 2006) (Elfvin, J)(waiver enforceable, as sentence was below stipulated range and plea/waiver was knowing and voluntary); Carr v. United States, 2004 WL 2202563 (W.D.N.Y. 2004) (Arcara, CJ) (same).
Even if not waived or precluded, the petition has no merit because it is based on the clearly incorrect presumption that the availability of the "shock camp" was relied upon by the Court in imposing sentence.*fn7 There is no basis in fact for the making of such assumption. The Court has reviewed the record herein and finds that, prior to the date of sentencing, nowhere is the "shock camp" option presented or discussed. Further, it was only briefly mentioned during the sentencing proceedings. For example, it is not mentioned or contained in the plea agreement or presentence investigation report, nor was it remarked upon at the time petitioner entered his guilty plea. It was mentioned for the first time at the sentencing proceedings wherein defense counsel requested that petitioner be considered for shock camp, "if available". The Court asked the government what their position would be on this issue and, having been informed that the "shock camp" program was no longer available, succinctly stated "well, that takes care of that" and the issue was mentioned no further. It is obvious from the record that the sentencing decisions herein, not only did not rely on the "shock camp" option, but clearly did not even consider it as a factor in sentencing petitioner herein. Even if the Court had recommended the "shock camp", its abolishment would not be cause for re-sentencing under §2255. See Happy, supra.
Therefore, based upon all of the above, it is hereby ORDERED that respondent's motion (Dkt. #42) is GRANTED and the Clerk of the Court is ...