The opinion of the court was delivered by: William M. Skretny United States District Judge
Presently before this Court is pro se Petitioner Jerry L. Davis, Jr.'s Motion to Vacate, Set Aside, or Correct his Sentence and Conviction pursuant to 28 U.S.C. § 2255, and his Motion for Bond. For the reasons discussed below, Petitioner's motions are denied.
On June 28, 2006, 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 cocaine in violation of 21 U.S.C. § 841(a)(1). (Docket Nos. 28, 29, 31.) That charge carried a possible maximum sentence of 20 years imprisonment, a $1,000,000 fine, or both. (Docket No. 30, ¶ 1.)
In the plea agreement, Petitioner and the Government agreed that the total offense level, including a reduction for Petitioner's acceptance of responsibility, was 23, and that Petitioner's criminal history category was III, which resulted in a Guidelines sentencing range of 57 to 71 months, a fine of $10,000 to $1,000,000, and a period of supervised release of 3 years. (Docket No. 30, ¶¶ 7-10.)
Included in the plea agreement is Petitioner's acknowledgment that he understands that [he] has no right to withdraw the plea of guilty based upon the Court's determination of [his] criminal history category; understands that the Court is not bound [sic] accept any Sentencing Guidelines calculation set forth in this agreement and [he] will not be entitled to withdraw the plea of guilty based on the sentence imposed by the Court; knowingly waives the right to appeal, modify pursuant to Title 18, United States Code, Section 3582(c)(2), and collaterally attack any component of a 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, ¶ 10 above, notwithstanding the manner in which the Court determines the sentence; understands that by agreeing to not collaterally attack the sentence, [he] is waiving the right to challenge the sentence in the event that in the future [he] becomes aware of previously unknown facts or a change in the law which [he] believes would justify a decrease in the [his] sentence. (Docket No. 30, ¶¶ 9, 12, 17, 18.)
On December 15, 2006, this Court sentenced Petitioner to a 70-month term of imprisonment, a 3-year term of supervised release, and declined to impose a fine. (Docket Nos. 38, 39.) It did so after finding that the proper Guidelines range was 70-87 months, based on a total offense level of 23 and a criminal history category of IV. (Docket No. 38.) The Clerk of the Court filed the sentencing judgment on December 20, 2006. (Docket No. 39.) Petitioner did not appeal his conviction or sentence.
On April 19, 2007, Petitioner filed the instant Motion to Vacate, Set Aside, or Correct his Sentence and Conviction pursuant to 28 U.S.C. § 2255. (Docket No. 43.) Respondent filed a response in opposition on June 8, 2007. (Docket No. 45.) Petitioner filed a Motion for Bond on June 20, 2007. (Docket No. 46.)
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.
The Second Circuit has held that a "collateral attack on a final judgment in a criminal case is generally available under § 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) (per curiam) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)).
B. Petitioner's § 2255 Motion
In his motion, Petitioner advances the following arguments: (1) this Court misapplied the Guidelines in violation of his constitutional rights; (2) this Court and defense counsel violated their ethical obligations; (3) the jury did not return a guilty verdict on his "mental intent"; and (4) he was tried and convicted by an unconstitutional jury. (Docket No. 43.)
In response, Respondent argues that Petitioner's motion must be denied because he waived his right to appeal or collaterally attack his sentence, and, in ...