The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
On March 15, 2007, Petitioner Robert Wall pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Petitioner now moves pursuant to 28 U.S.C. § 2255 seeking to vacate his conviction and sentence.
Petitioner argues that his counsel was ineffective for failing to: (1) appeal; (2) file a motion to suppress the fruits of warrantless search; (3) file a motion to dismiss the indictment; (4) discuss the addendum to the Pre-Sentence Report ("PSR") with Petitioner and object to the addendum; (5) file a motion to suppress allegedly coerced statements; (6) properly advise Petitioner that he would receive a term of incarceration (rather than a 10-year period of probation) if he pled guilty; and (7) object to Petitioner not being given an opportunity to address the court at sentencing. Petitioner also claims that he is actually innocent of the crime. Petitioner further alleges that: the Court lacked jurisdiction because the indictment did not name the victims of the crime; the forfeiture count is defective because it cites a subdivision of the forfeiture statute that has been repealed; and that the Court erred in allowing the victim impact statement to be relevant to sentencing. Finally, Petitioner submits that his sentence constitutes cruel and unusual punishment in violation of the 8th Amendment.
In the plea agreement, Petitioner waived the right to appeal or collaterally attack any sentence of 120 months or less. Because Petitioner was sentenced to 120 months imprisonment, absent some exception, he has waived the right to file this petition. See Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d Cir. 2002) ("There is no general bar to a waiver of collateral attack rights in a plea agreement."). Waivers are upheld provided they are given knowingly, voluntarily and competently. See United States v. Liriano-Blanco, 510 F.3d 168, 172 (2d Cir. 2007); Frederick, 308 F.3d at 195. However, "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, here, the plea agreement." Thus, a waiver will not be enforced where there is an allegation of ineffective assistance of counsel in connection with negotiating or entering of the plea or waiver. Frederick, 308 F.3d at 195-96; United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001). Whether the waiver is enforceable "turns on 'whether the ineffective assistance tainted the voluntariness of the plea or the waiver agreement itself.'" U.S. v. Cockerham, 237 F.3d 1179, 1184 (10th Cir. 2001) (quoting U.S. v. Vasquez, 194 F.3d 1321 (10th Cir. 1999)); see Hernandez, 242 F.3d at 113-14 ("We have suggested that a plea agreement containing a waiver of the right to appeal is not enforceable where the defendant claims that the plea agreement was entered into without effective assistance of counsel."); Jones v. U.S., 167 F.3d 1142, 1144-45 (7th Cir. 1999); U.S. v. White, 307 F.3d 336, 343-44 (5th Cir. 2002); Davila v. U.S., 258 F.3d 448, 450-52 (6th Cir. 2001). Thus, "claims of ineffective representation concerning sentencing generally do not survive the § 2255 waiver," Cockerham, 237 F.3d at 1184, "because . . . [they] relate only to the performance of defendant's attorney with respect to sentencing and [do] not go to the validity of the plea agreement itself." Cokerham, 237 F.3d at 1185 (citing Mason v. United States, 211 F.3d 1065, 1066 (7th Cir. 2000)).
Here, as discussed below, Petitioner may only raise the claims which go to whether he knowingly, voluntarily, and competently entered into the plea agreement. All other claims have been waived.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
A petitioner who claims ineffective assistance of counsel must: (1) show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms;" and (2) "affirmatively prove prejudice" by demonstrating that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 693-94 (1984). In applying this standard to guilty pleas, the petitioner must show that, "but for the counsel's errors, he would not have pled guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Petitioner has the burden of demonstrating that counsel failed to raise "significant and obvious issues" which if raised, would likely have been successful. Mayo v. Henderson, 13 F.3d 528, 533-34 (2d Cir. 1994).
a. FAILURE TO FILE AN APPEAL
Petitioner claims that his counsel, James Long, Esq., was ineffective for failing to file a direct appeal, despite the fact that Petitioner signed a plea agreement in which he waived the right to appeal a sentence over 120 months.
In Campusano v. United States, 442 F.3d 770 (2d Cir. 2006), the Second Circuit held that a petitioner may have been ineffectively assisted by counsel even where the petitioner expressly waived his right to appeal. There, the petitioner had signed a plea agreement in which he promised not to appeal his sentence "provided the sentence fell within a stipulated range of 108 to 135 months." Id. at 772. The district court had imposed a 108-month sentence, and counsel did not file a direct appeal. Id. The petitioner filed a Section 2255 motion alleging ineffective assistance of counsel, and claiming that he had timely requested his counsel to file a notice of appeal. Id. The Second Circuit remanded the case to the district court for an evidentiary hearing to "determine whether [petitioner] in fact instructed his attorney to file a notice of appeal. If [petitioner] did give such an instruction, he is to be allowed a direct appeal." Id. at 777.
Here, Wall alleges that Long failed to comply with his directive to file a notice of appeal. See Motion to Vacate at 1; see also Reply at 10. Further, Wall submitted three affidavits to the Court from people who claimed that they heard Wall timely ask his attorney to appeal. See Reply at 24-26. Long admits that Wall asked him to file an appeal, but claims that his request was not timely. See Affidavit of Attorney James Long, at ¶ 4. Therefore, this Court must conduct an evidentiary hearing to determine whether Wall timely instructed his attorney to file an appeal.
The Court must appoint counsel for a petitioner who qualifies for appointment of counsel under 18 U.S.C. § 3006A(g) whenever the Court determines that an evidentiary hearing is required to resolve an issue raised in a Section 2255 motion. See Rules Governing Section 2255 Cases in the United States District Courts Rule 8(c); see also Ocampo v. United States, 2006 WL 1686562, at *4 (N.D.N.Y. June 16, 2006). Magistrate Judge David Homer previously determined that Wall qualified for court-appointed counsel. Since Wall has been continuously incarcerated, it is doubtful that his financial situation has changed. See, e.g., Soto v. Walker, 2005 WL 2260340, at *4 (N.D.N.Y. Sept. 15, 2005) (McAvoy, S.J.). Therefore, the Clerk of the Court is directed to conditionally appoint counsel to represent Petitioner for purposes of this limited evidentiary hearing. However, to ensure that Wall has remained indigent during the course of this proceeding and is, therefore, eligible for appointed counsel, the Court directs Petitioner to complete, sign and return to this Court the attached in forma pauperis application. The Court will then review the application to confirm whether Wall is financially eligible for assigned counsel.
b. COUNSEL'S FAILURE TO FILE A MOTION TO SUPPRESS AN ALLEGEDLY WARRENTLESS SEARCH AND A CONFESSION
Petitioner next claims that his counsel failed to file a motion to suppress an allegedly warrantless search and confession and that, had the evidence been suppressed, he would not have pled guilty. Attorney Long admits that he did not move to suppress any evidence. Affidavit of James E. Long, May 6, 2008, at ¶ 6.
To prevail on this claim, Petitioner must show: (1) that his attorney would have been successful had he sought suppression; and (2) that had the evidence and/or confession been suppressed, that it was reasonably likely that Petitioner would have gone to trial rather than plead guilty. Hill v. Lockhart, 474 U.S. 52, 59 (1985). Attorneys are not required to file motions for which there is little basis of support. United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987). "[N]ot every possible motion need be filed, but rather, only those having a solid foundation." United States v. Nersesian, 824 F.2d 1294, 1322 (2d Cir. 1987).
Here, it is doubtful that a motion to suppress would have had a solid foundation. The F.B.I. were permitted into the home by Wall's mother (of which she was a resident). See Petitioner's Decl. at 1. Wall signed a consent to search. See Consent to Search, Dec. 10, 2003 and Statement of Robert Wall, Dec. 10, 2003. In that consent, Wall gave FBI Special Agent David C. Fallon permission to search his HP Pavillion computer and to access his Yahoo group account. Id. Although Petitioner claims that the law enforcement agents forced him to sign the consent to search, that is contrary to his sworn statements at the plea hearing that: (1) nobody threatened him with the use of force to induce him to plead guilty, see Plea at 9; (2) he discussed with his attorney, and understood, his chances if he decided to go to trial; "that is, chances of winning or losing, trial strategy and defenses," id at 5; (3) his attorney advised him of his rights in this case, id at 9; (4) he was satisfied with what his attorney had done for him, id; and (5) he was pleading guilty freely and voluntarily. Id. at 9-10.*fn1 His contention is also contrary to the statement of Agent Fallon who denies that Wall was coerced. It, thus, cannot be said that Attorney Long's conduct in failing to file a motion to suppress the results of the search was objectively unreasonable or that he was prejudiced thereby.
The Court will now turn to the issue of suppression of the confession. Whether a confession was voluntary depends on the totality of the circumstances surrounding that confession, including "both the characteristics of the accused and the details of the interrogation" that resulted in the confession. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Law-enforcement conduct is not coercive if a reasonable person would feel free to decline an officer's request, terminate the encounter, and refuse consent. See United States v. Drayton, 536 U.S. 194, 204 (2002). Here, Wall never told the FBI agents to leave. The FBI never told Petitioner that he was not free to leave. The agents did not draw their firearms. Petitioner was never handcuffed. See Id. at 205. ("[T]he presence of a holstered firearm . . . is unlikely to contribute to the coerciveness of the encounter"). In fact, Petitioner was not even arrested that day. Beyond "yelling," Petitioner does not claim that he was physically or psychologically coerced into making any statements. Also, Petitioner was questioned in his own home by plainclothes officers during an approximately 90 minute interview. A reasonable attorney could have concluded that a motion to suppress the confession would not have succeeded.
Further, by promptly entering into the plea, Wall obtained the benefits of a reduced guidelines sentence based on the acceptance of responsibility and reductions pursuant to U.S.S.G. § 3E1.1(b) and § 3E1.1(a). Wall further obtained the benefit of the government agreeing not to charge him with the more serious offense of the advertising or transmission of child pornography, which charges included mandatory minimum sentences and longer maximum sentences. Thus, in light of the evidence against Wall (even assuming the interview and search of his computer were suppressed) and the possible sentence ...