The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
The record reflects that on June 19, 2003, following a criminal investigation conducted by law enforcement agents which sought to curtail illegal drug sales in the Syracuse, New York area, petitioner pro se Akim Betsey and numerous other individuals were indicted by a federal grand jury sitting in the Northern District of New York. See 03-CR-0243, Dkt. No. 1. That accusatory body subsequently returned a Superceding Indictment against Betsey and others. See 03-CR-0243, Dkt. No. 69 ("Superceding Indictment"). In that instrument, Betsey was charged with conspiring to violate 18 U.S.C. § 1962, the Racketeer Influenced and Corrupt Organization Act ("RICO"), through his membership in a criminal enterprise that involved himself and numerous other individuals. See Superceding Indictment, Count One. Betsey was also charged in that indictment with possessing with intent to distribute and distributing marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846. Superceding Indictment, Count Two.
On February 11, 2004, following negotiations between Betsey's appointed counsel and Assistant United States Attorney John Katko ("AUSA Katko"), the parties advised this Court that Betsey had entered into a plea agreement with the Government wherein he agreed to plead guilty to the first count in the Superceding Indictment, which charged him with violating 18 U.S.C. § 1962(d), in satisfaction of the charges brought against him in that accusatory instrument. See 03- CR-0243, Dkt. Nos. 229 (copy of Betsey's plea agreement with Government) (hereinafter "Plea Agreement") and 230 (minute entry relating to change of plea). In his Plea Agreement, Betsey also agreed to waive his right to appeal, or collaterally attack through a Motion to Vacate brought pursuant to 28 U.S.C. § 2255, his judgment of conviction as well as any sentence of imprisonment of 168 months or less. See id. at ¶ 11.
At the proceeding over which this Court presided wherein Betsey formally entered his change of plea, he admitted that he had engaged in the conduct alleged in the first count of the Superceding Indictment. See Transcript of Change of Plea (2/11/04) (03-CR-0243, Dkt. No. 373) ("Plea Tr.") at p. 7. AUSA Katko then discussed in detail the factual and legal bases for the charges brought against Betsey. See Plea Tr. at pp. 13-16. This Court then engaged in an extensive colloquy with Betsey during which he: i) admitted that he understood the nature of the charges against him; ii) declared that he was pleading guilty freely and voluntarily; iii) heard the evidence which the Government possessed against him that would be utilized by the prosecutor at trial; iv) admitted that he was responsible for between 50 and 150 grams of crack cocaine related to the conspiracy; and v) acknowledged that he was aware that if he was sentenced to a term of imprisonment of 168 months or less that he could not withdraw his guilty plea. See Plea Tr. at pp. 18-20. This Court thereafter concluded that Betsey was competent to enter the plea, that he understood the nature of the charges against him and the consequences of his guilty plea, and that he was voluntarily entering that plea. Id. at p. 22. This Court therefore accepted Betsey's guilty plea. Id.
On December 13, 2004, Betsey appeared before this Court for sentencing. See Transcript of Sentencing (12/13/04) (03-CR-0243, Dkt. No. 621) ("Sentencing Tr."). At that proceeding, this Court noted that the total offense level applicable to Betsey was 31 and that his criminal history category was level V. Id. at p. 7. Consequently, the Court noted that he was subject to a range of imprisonment under the United States Sentencing Guidelines of between 168 and 210 months. Id. This Court thereafter sentenced Betsey to a term of imprisonment of 168 months, the bottom of the range of imprisonment to which he was subject under the Guidelines. Id. at p. 8. Betsey did not file any appeal relating to his conviction or sentence.
On May 25, 2005, Betsey filed his Motion to Vacate, Set Aside or Correct his sentence pursuant to 28 U.S.C. § 2255. See 05-CV-0678, Dkt. No. 1 ("Motion to Vacate"). Attached to that pleading is a supporting memorandum of law ("Supporting Mem."). In his application, Betsey alleges that his trial counsel rendered ineffective assistance when he failed to object to defects which petitioner claims existed in the Superceding Indictment. See Motion to Vacate, Ground One. In his second ground, Betsey asserts that his conviction and sentence violate the principles announced by the Supreme Court in United States v. Booker, 543 U.S. 220 (2005). See Motion to Vacate, Ground Two. In a "supplement" Betsey filed on June 20, 2005 (see 03-CR-0243, Dkt. No. 619) ("Supplement"), Betsey acknowledges that the Supreme Court's decision in Booker may not be applied retroactively to his petition. See id. at p. 1. However, he asserts an additional claim for relief in his Supplement; he argues that this Court did not have any jurisdiction over him because the Superceding Indictment was jurisdictionally defective. See id. at pp. 2-4.
The Government filed its response in opposition to Betsey's Motion to Vacate and Supplement on September 9, 2005. 05-CV-0678, Dkt. No. 5. Included in that submission is a memorandum of law in opposition to Betsey's application. See Attachment to Dkt. No. 5 ("Resp. Mem."). Petitioner thereafter filed a reply memorandum of law in further support of the present motion. 05-CV-0678, Dkt. No. 7 ("Reply").
A. Waiver of Right to Appeal
Respondent initially argues that Betsey is precluded from raising his claims in this collateral challenge to his conviction in light of the waiver he executed in his Plea Agreement. See Resp. Mem. at pp. 9-10.
"It is well established in this Circuit that a knowing and voluntary waiver of the right to appeal is enforceable." United States v. Cunningham, 292 F.3d 115, 117 (2d Cir. 2002) (citing United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001)); see DeLeon v. United States, Nos. 02 CIV. 9745, 00 CR. 1236, 2003 WL 21769836, *3 (S.D.N.Y. July 30, 2003) (defendant's waiver of right to appeal sentence that is within an agreed upon Sentencing Guidelines range "is enforceable when a 'defendant ... knowingly and voluntarily enters into a plea agreement containing a waiver of appeal rights and obtains the benefits of such an agreement'") (quoting United States v. Difeaux, 163 F.3d 725, 728 (2d Cir. 1998)). Thus, where the hearing held in conjunction with a plea agreement establishes that the defendant entered into the agreement voluntarily and with an understanding of its terms, including the waiver of his right to file an appeal or collateral challenge to his conviction, the waiver provision is enforceable. See Liberato v. United States, Nos. 99 CR 137, 01 CIV. 3056, 2001 WL 930238, *5 (S.D.N.Y. Aug. 16, 2001) (citation omitted).
In the related criminal matter, Betsey specifically acknowledged during the plea allocution that he understood that, under the terms of the Plea Agreement, he was waiving his right to file either an appeal or a collateral attack regarding his conviction and sentence if he were sentenced to a term of imprisonment of 168 months or less. See Plea Tr. at pp. 17-19. Therefore, at first blush, it would appear that respondent properly claims that Betsey is necessarily barred from maintaining this action.
However, in Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192 (2d Cir. 2002), the Second Circuit noted that "a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, ...