MEMORANDUM-DECISION AND ORDER*fn1
Petitioner Rod M. Sharpley ("Petitioner" or "Defendant") was arrested on July 12, 2002 and charged with violations of Title 18 United States Code, Section 2251(a), production, and attempted production of images of actual minors engaged in sexually explicit conduct. After a search warrant was executed upon his residence on July 13, 2002, Petitioner was also charged with a violation of Title 18, United States Code, Sections 922(g)(1) & 924(a)(2), possession of a firearm by a person previously convicted of a felony.
Petitioner pled guilty to two counts from the indictment regarding sexual conduct with a minor and one count from the indictment charging unlawful firearm possession pursuant to a written plea agreement filed on October 22, 2003. Plea Agreement (Dkt. No. 16, Ex. 2). At that time, Petitioner admitted that between 1999 and July 13, 2002, he took sexually explicit digital images of a male minor at his residence in Rensselaer, New York. Id. at 6-7. The images also depict Petitioner and the minor engaging in acts of oral and anal sex. Id. According to his plea, Petitioner knew the male was a minor at the time and he retained these images on his computer and on computer disks. Id. Petitioner also admitted that in July of 2002, he had a conversation with the mother of a 13 year old female in which they planned for Petitioner to secretly videotape this minor, and other children, changing into their bathing suits at a party at the mother's house. Id. Petitioner had discussed with the mother his intention to videotape himself having sex with this minor at the conclusion of the party. Id. On July 13, 2002, Petitioner arrived at the mother's house and set up the video camera; he was subsequently arrested. Id.
The plea agreement specified that Petitioner waived his right to appeal, and/or to collaterally attack the conviction and sentence in his case, except for the explicit right to appeal the issues of whether his conviction under 18 United States Code Section 2251(a) violated the Commerce Clause of the United States Constitution and whether a prior state conviction was valid and eligible for enhancing Petitioner's sentence.
On October 22, 2003, a Rule 11 proceeding was held to ensure that Petitioner understood his rights and the consequences of signing the plea agreement. Plea Minutes (Dkt. No. 16, Ex. 2). Petitioner acknowledged he was freely and voluntarily signing the agreement. Id. at 17. Petitioner was subsequently sentenced to 180 months of incarceration and five years of supervised release on May 11, 2004. Sentencing Minutes (Dkt. No. 16, Ex. 4) at 14-15.
Petitioner, acting pro se, now petitions this Court for a writ of habeas corpus, pursuant to 28 United States Code Section 2255, and seeks various forms of relief. Petitioner's Motion (Dkt. No.1).
A. Waiver of Appeal and Effect of Direct Appeal Decisions
It is well established that a defendant's voluntary and knowing waiver of the right to appeal is generally enforced. United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001). Such waivers can be a part of valid, enforceable, plea agreements. United States v. Morgan, 406 F.3d 135, 137 (2d Cir. 2005). In hearing a habeas petition, a district court is entitled to rely upon a Defendant's statements, made under oath and in open court at the time his plea is accepted, that he understands the consequences of the waiver and the limitations it places on his ability to further litigate and appeal. Hernandez, 242 F.3d. at 112. The record shows that the court in this case inquired as to whether the Petitioner had the capacity to understand his rights and whether he appreciated the consequences of his plea and waiver. Plea Minutes (Dkt. No. 16, Ex. 2) at 4-22. The Petitioner consistently responded that he understood his rights and the consequences of his plea, and furthermore that the facts laid out by the government were true and reflected the conduct that brought him before the court. Id.
Thus, the following knowing and voluntarily waiver by Petitioner is enforceable: The Defendant acknowledges that, after consultation with defense counsel, he fully understands the extent of his right to appeal, and/or to collaterally attack the conviction and sentence in this case. Other than his right to appeal the issues of whether his convictions under Counts 1 and 2 of Superceding Indictment 02-CR-333 violate the Commerce Clause fo the United States Constitution and the validity of his prior state conviction, the Defendant waives any and all rights, including those conferred by 18 U.S. C. § 3742 and/or 28 U.S.C. § 2255, to appeal or collaterally attack his conviction and any sentence of imprisonment of 180 months or less. . .
Plea Agreement (Dkt. No. 16, Ex. 3) at ¶13.
Petitioner has exercised the plea agreement's explicitly reserved right to directly appeal his convictions on limited grounds. United States v. Sharpley, 399 F.3d 123 (2d Cir. 2005). However, the Second Circuit denied the Petitioner's direct appellate motions and affirmed his convictions on the merits. Id. at 128. The Supreme Court then denied Petitioner's subsequent request for certiorari. Sharpley v. United States, 126 S.Ct. 78 (Mem) (2005). Thus, the questions raised by Petitioner regarding the constitutionality of the statute he was convicted under, and the length of his sentence, have seen resolution on the merits.*fn2
Accordingly, because the plea agreement is binding and Petitioner's limited right to appeal has seen resolution on the merits, Petitioner is procedurally barred from relitigating those issues that have been considered and decided upon adversely to him with a collateral attack under Section 2255. Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992); United States v. Natelli, 553 F.2d 5, 7 (2d Cir. 1977) (per curiam). Petitioner's additional claims regarding recidivist enhancement, entrapment, actual innocence, ...