The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
REPORT AND RECOMMENDATION
Galo Garcia, appearing pro se, brings this petition for writ of habeas corpus under 28 U.S.C. § 2255. Garcia pled guilty to one count of conspiracy to distribute and possess with intent to distribute heroin and was sentenced to 135 months of incarceration. He argues that he was denied effective assistance of counsel and improperly sentenced. For the reasons stated below, Garcia's petition should be denied.
Garcia was indicted for conspiracy to distribute heroin in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), and possession of a weapon in violation of 18 U.S.C. § 924(c). See Presentence Investigation Report, dated June 18, 2003 ("PSR") (annexed as Ex. C to Affirmation of Edward C. O'Callaghan, filed Oct. 15, 2007 (Docket # 236) ("O'Callaghan Aff.")), at 2; see also Indictment, filed Oct. 4, 2001 (Docket # 34 in 01 Cr. 945). On February 21, 2003, Garcia signed a plea agreement with the Government. See Letter to Thomas H. Nooter, dated Feb. 21, 2003 (annexed as Ex. B to O'Callaghan Aff.) ("Pl. Ag."). The plea agreement stipulated that upon Garcia's plea of guilty to conspiracy to distribute heroin, the United States Sentencing Commission Guidelines Manual ("Sentencing Guidelines") would call for an offense level of 33 and a sentencing range of 135 to 168 months. See Pl. Ag. at 2-3. The Agreement further noted that the charge to which Garcia was pleading carried a mandatory minimum term of 120 months' imprisonment. Id. at 3. In exchange for his plea, the Government agreed to dismiss any open counts against Garcia. Id. at 1.
The agreement provided that Garcia would not "file a direct appeal from, nor otherwise litigate under Title 28, United States Code, Section 2255 and/or 2241, any sentence within or below the Stipulated Sentencing Guidelines Range of 135 to 168 months." Id. at 4.
On March 21, 2003, Garcia entered a guilty plea before Judge Richard M. Berman. See Plea Transcript, dated Mar. 21, 2003 (annexed as Ex. A to O'Callaghan Aff.) ("Pl. Tr."). Garcia's attorney, Thomas H. Nooter, stated that he had reviewed the plea agreement with Garcia. Id. at 3-4. Nooter also reviewed with Garcia a document provided by the Court, entitled a "notification of rights," that informed Garcia of the implications of entering a plea. Id. at 4-5.*fn1
During the plea allocution, Judge Berman determined that Garcia was competent to enter an informed plea and that he understood the rights he was waiving by entering a plea of guilty. Id. at 14-17. Garcia confirmed that he had reviewed the indictment containing the charge against him, id. at 18; understood the charge against him, id.; discussed all aspects of his case with his attorney, id. at 13-14; and was satisfied with his attorney's representation, id. at 14, 18.
Garcia acknowledged that he understood that if he did not plead guilty and instead went to trial, any trial would be held before a jury that would have to agree unanimously that he was guilty. Id. at 15. Garcia confirmed that he was giving up his right to a trial. Id. at 17. He also confirmed that he had discussed with his attorney "how the sentencing guidelines might be applied," id. at 33, and that he understood that his sentence would be determined solely by Judge Berman, id. at 28.
Judge Berman reminded Garcia that his plea agreement "waives your appeal rights in the event that you are sentenced to within or below what's called the stipulated guideline range of 135 to 168 months." Id. at 30-31. Garcia confirmed that he understood and agreed to this provision. Id. at 31.
On July 7, 2003, Garcia appeared before Judge Berman for sentencing. See Sentencing Transcript, dated July 7, 2003 (annexed as Ex. D to O'Callaghan Aff.) ("S. Tr."). Judge Berman sentenced Garcia to 135 months in prison. Id. at 8. Judge Berman advised Garcia that "[t]o the extent [that he had] not already waived [his] appeal rights . . . [he had] the right to apply for leave to appeal." Id. at 11. Judge Berman also reminded Garcia that he agreed not to appeal a 135 month sentence. Id. A judgment of conviction was entered on July 9, 2003. See Judgment in a Criminal Case, dated July 9, 2003 (annexed as Ex. E to O'Callaghan Aff.). Garcia did not file a notice of appeal.
Garcia's petition is dated July 6, 2004. See Petition, filed Aug. 4, 2004 (Docket # 1 in 04 Civ. 6020) ("Petition"). The substantive portion of the petition consists, ...