The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM DECISION AND ORDER
In July 2005, petitioner pled guilty to possession with intent to distribute cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1). In December 2005, petitioner was sentenced by this Court to 120 months imprisonment. Petitioner has filed the present motion (Dkt. No. 80) pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence on the following grounds:
(1) the sentence is invalid because the government failed to comply with 21 U.S.C. § 851 and improperly filed Enhanced Penalty Information; (2) the district court failed to comply with 21 U.S.C. § 851(b); and (3) that petitioner received ineffective assistance of counsel. The government opposes petitioner's motion. (Dkt. No. 82).
II. Factual and Procedural Background
The facts of this case, as briefly stated in the Plea Agreement executed by the parties, are as follows: On March 22, 2004, petitioner was a passenger in a 1998 Oldsmobile in the area of the 400 block of Catherine Street. Petitioner was searched and arrested. While in his motor vehicle, petitioner possessed approximately 15.76 grams of cocaine base (crack) which he intended to distribute.
On June 7, 2004, the government filed Enhanced Penalty Information and served the same upon the petitioner.*fn1 The government asserted:
Rommel Burdine, pled guilty in Onondaga County to Criminal Possession of a Controlled Substance in the Fifth Degree in violation of New York State Penal Law § 220.06(5) and sentenced to five years probation on or about January 30, 2002.
The foregoing conviction is intended to be relied upon by the United States in any sentencing of the defendant to increase his punishment in accordance with Title 21, United States Code, Section 841(b). All pursuant to Title 21, United States Code, Section 851.
On January 13, 2005, a two-count indictment was filed. Count 2 of the Indictment charged that petitioner: knowingly and intentionally possessed with intent to distribute approximately 15.76 grams of a mixture or substance containing a detectable amount of cocaine base (crack), a Schedule II controlled substance. In violation of Title 21, United States Code, Section 841(a)(1).*fn2 Pursuant to the written Plea Agreement, petitioner entered a plea of guilty to possession with intent to distribute cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1). As part of the Plea Agreement, petitioner agreed as follows:
1.b. Defendant admits he has previously entered a guilty plea in Onondaga County Court on December 5, 2001 to criminal Possession of a Controlled Substance in the Fifth Degree in violation of New York State Penal Law 220.06(5) for which he received youthful offender treatment.
2. Potential Penalties. Rommel Burdine understands that his guilty plea to Count 2 of the Indictment will subject him to the following potential penalties:
b. Mandatory minimum of imprisonment: 10 years. (21 U.S.C. 841(a)(1)(B)).
10. Waiver of Appeal and Collateral Attack. The Defendant acknowledges that, after consultation with defense counsel, he fully understands the extent of his rights to appeal, and/or to collaterally attack the conviction and sentence in this case, including by a challenge based upon United States v. Booker and United States v. Fanfan, 534 U.S. , 125 S.Ct. 738 (January 12, 2005) and their progeny. With the exception of challenging the applicability of his prior youthful offender finding as a penalty enhancement, Defendant waives any and all rights, including those conferred by 18 U.S.C. § 3742 and/or 28 U.S.C. § 2255, to appeal or collaterally attack his conviction and any sentence of imprisonment of 120 months or less, including any related issues with respect to the establishment of the Sentencing Guidelines range or the reasonableness of the sentence imposed. The Defendant acknowledges that the number of months specified above is not a promise of any particular sentence and is not binding on the Court. The Defendant agrees that, should the sentence imposed exceed 121 months, this would not permit his to withdraw his guilty plea or to appeal or collaterally attack his conviction, but would merely allow the Defendant to appeal or collaterally attack the sentence imposed by the Court, to the extent permitted by 18 U.S.C. § 3742 and/or 28 U.S.C. § 2255.
On July 18, 2005, petitioner formally entered a change of plea and admitted facts set forth in the Plea Agreement which the government asserted established his guilt. During the hearing, petitioner stated that he was pleading guilty freely and voluntarily:
THE COURT: Has any force or threat been used against you to induce you to plead guilty?
THE COURT: Are you pleading guilty freely and voluntarily?
On December 19, 2005, this Court sentenced petitioner to a term of 120 months. The issue of petitioner's right of appeal was addressed at sentencing:
THE COURT: Was there a waiver here? Yes, there was; there was a 120-month waiver.
MR. DUNCAN: Yes, Judge, and the exception is to allow the defendant to appeal the application of his prior youthful offender conviction.
THE COURT: So There will be - - You're going to appeal that issue?
THE COURT: Okay. That would be the only issue that would be appealed though?
Sentencing Transcript, p. 17.
Section 2255 allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. Morales v. U.S., 2008 WL 4761705, at * 3 (S.D.N.Y. 2008). A § 2255 petitioner may collaterally attack his sentence on very limited grounds. Indeed, a district court may only vacate or modify a sentence if 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." U.S. v. Addonizio, 442 U.S. 178, 183 (1979). To be otherwise subject to collateral attack, the sentence must suffer from an error of law that is either constitutional in magnitude or so fundamental as to result in a miscarriage of justice. See id.; Parsons v. U.S., 919 F. Supp. 86, 88-89 (N.D.N.Y. 1996). With these considerations in mind, the Court addresses the petition.
Section 851(a)(1), entitled Proceedings to establish prior convictions, provides as follows:
(a) Information filed by United States Attorney
(1) No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. Upon a showing by the United States attorney that facts regarding prior convictions could not with due diligence be obtained prior to trial or before entry of a plea of guilty, the court may postpone the trial or the taking of the plea of guilty for a reasonable period for the purpose of obtaining such facts. Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.
Imposition of an enhanced penalty is not automatic and such a penalty may not be imposed unless the government files an information notifying the defendant in advance of trial (or prior to the acceptance of a plea of guilty) that it will rely on that defendant's prior convictions to seek a penalty enhancement. Pryce v. U.S., 468 F.Supp.2d 588, 593 (S.D.N.Y. 2006) (holding that the purpose behind filing prior felony information is to put the defendant on notice that he is subject to an enhanced sentence and to give him the opportunity to challenge whether he was, in fact, so convicted). Section 851 "was designed to satisfy the requirements of due process and provide the defendant with reasonable notice and an opportunity to be heard regarding the possibility of an enhanced sentence for recidivism". U.S. v. Pritchett, 496 F.3d 537, 548 (6th Cir. 2007) (citing U.S. v. King, 127 F.3d 483, 489 (6th Cir. 1997)). Courts have repeatedly emphasized "the importance of interpreting § 851's notice requirements so as to avoid elevating form over substance." Id. (citing U.S. v. Layne, 192 F.3d 556, 576 (6th Cir. 1999)). "As long as the information provides clear notice to a defendant of the prior convictions (and the court gives an opportunity to attack [such] convictions ...), then the statute has been satisfied." U.S. v. Severino, 316 F.3d 939, 944 (9th Cir. 2003) (internal citations omitted).
The Second Circuit has held that, "[s]section 851's notice requirement reflects, essentially, two goals, first 'to allow the defendant to contest the accuracy of the information,' and second 'to allow defendant to have ample time to determine whether to enter a plea or go to trial and plan his trial strategy with full knowledge of the consequences of a potential guilty verdict' ". Vadas v. U.S., 527 F.3d 16, 23 (2d Cir. 2007) (citing U.S. v. Williams, 59 F.3d 1180, 1185 (11th Cir.1999)). The statute mandates that the information be filed before trial to give the defendants an opportunity to show they had not been previously convicted of those crimes subjecting them to increased penalties. Id. In Vadas, the Second Circuit held that there was no doubt that the petitioner was provided sufficient notice to allow the petitioner to accept (or to prepare to challenge) a sentence enhancement based on a previous conviction. Id. The Court noted that the government filed the notice one year before the petitioner's entry of a guilty plea and further, that the petitioner stated that he knew that he was subject to a mandatory minimum ten-year sentence on account of a prior felony drug conviction, the validity of which he never challenged. Vadas, 527 F.3d at 24. Thus, the Court found that the purposes of § 851 were fulfilled and that the filing was effective. Id.
In this case, petitioner argues that the Court improperly relied upon the Enhanced Penalty Information because the government erroneously filed the information prior to the grand jury indictment. Petitioner cites to no caselaw to support this proposition. ...