The opinion of the court was delivered by: William M. Skretny United States District Judge
Presently before this Court is Petitioner Larry G. Watkins's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255 (Docket #93) and his Motion for Discovery (Docket #96). For the reasons discussed below, Petitioner's motions are denied.
On January 18, 2005, Petitioner appeared before this Court, waived indictment, and entered a plea of guilty to one count of conspiracy to possess with intent to distribute 50 grams or more of cocaine base, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A).
In light of Petitioner's prior drug felony history, Petitioner and Respondent agreed in the written plea agreement that Petitioner would plead guilty to a crime that would: carr[y] a maximum sentence of imprisonment of not less than 20 years and not more than life, a fine of $8,000,000, or both, a mandatory $100 special assessment, and a term of supervised release of at least 10 years and up to life. (Plea Agreement, Docket #74, ¶ 1).
The plea agreement explained that although Petitioner's sentencing range under the Guidelines would be 188 to 235 months, he was subject to a mandatory minimum term of 240 months:
12. It is the understanding of the government and the defendant that, with a total offense level of 33 and criminal history category of IV, and taking into account the applicable statutory minimum penalties, the defendant's sentencing range would be a term of imprisonment of 188 to 235 months, a fine of $17,500 to $4,000,000, and a period of supervised release of 5 years. Notwithstanding this, the defendant understands that at sentencing the defendant is subject to the minimum and maximum penalties set forth in paragraph 1 of this agreement, including a 240 month mandatory minimum term of imprisonment. (Docket #74, ¶ 12).
In the plea agreement, Petitioner waived his right to appeal or 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 . . ." (Docket #74, ¶ 18).
On May 25, 2005, this Court sentenced Petitioner principally to a term of imprisonment of 120 months (Docket #83), based on a government motion filed pursuant to Guidelines Section 5K1.1 and 18 U.S.C. § 3553(e). (Docket #77). Following imposition of the sentence, Petitioner filed a pro-se notice of appeal on June 20, 2005. (Docket #85). The Government then filed its own notice of appeal on June 23, 2005. (Docket #87). The parties subsequently entered into stipulation withdrawing both appeals. (Docket #90).
Petitioner filed his first post-conviction proceeding on July 21, 2006, pursuant to 28 U.S.C. § 2255. (Docket #93). The Government filed its opposition on September 1, 2006, arguing that Petitioner waived his right to collaterally attack his conviction in the plea agreement. (Docket #95). The Government further argued that Petitioner's claims were frivolous and his petition should be dismissed. (Docket #95).
In challenging the legality of the recorded conversation by the confidential source (CS) and Petitioner on September 27, 2001, Petitioner filed a motion seeking discovery pertaining to:
1. Any affidavit of consent in which any party to the communication signed consenting prior to the interception of the oral communication pursuant to 18 U.S.C. § 2511 (2) (c).
2. Any transcript of the proceedings in which would provide verification that a party of the communications consented prior to its interception.
3. Any other relevant documentation which would provide verification that the consent of one of the parties was given prior to the ...