The opinion of the court was delivered by: William M. Skretny United States District Judge
Presently before this Court is Petitioner Steven D. Blumhagen's Motion to Vacate, Set Aside, or Correct his Sentence and Conviction pursuant to 28 U.S.C. § 2255. For the reasons discussed below, Petitioner's motion is denied.
On April 18, 2006, Petitioner appeared before this Court and pled guilty to Counts 1 and 16 of the Indictment, which charged him with conspiracy to commit mail fraud in violation of 18 U.S.C. § 371, and mail fraud in violation of 18 U.S.C. § 1341, respectively. (Docket Nos. 175, 179.) The charges together carried a possible maximum sentence of ten years imprisonment, a $500,000 fine, or both. (Docket No. 175, ¶ 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 I, which resulted in a Guidelines sentencing range of 46 to 57 months, a fine of $10,000 to $100,000, and a period of supervised release of up to three years. (Docket No. 175, ¶¶ 8-14.)
Included in the plea agreement is Petitioner's acknowledgment that he previously agreed in writing to waive a statute of limitations defense to the charges in Count 1 and Count 16 of the Indictment; understands that [he] has no right to withdraw the plea of guilty based on the Court's determination of [his] criminal history category; 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, ¶ 14 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. 175, ¶¶ 2, 13, 22.)
On December 15, 2006, this Court sentenced Petitioner to a term of imprisonment of 57 months on Count 1, and 48 months on Count 16, to run concurrently. (Docket Nos. 224, 227.) This Court also imposed a three-year term of supervised release on each count, to run concurrently, and restitution in the amount of $10,731,240.97.*fn1 (Docket Nos. 224, 227.) No fine was imposed. (Docket No. 227.) The Clerk of the Court filed the sentencing judgment on December 22, 2006. (Docket No. 227.) Petitioner did not appeal his conviction or sentence.
On December 28, 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. 230.) Respondent filed a response seeking dismissal of the petition on June 9, 2008. (Docket No. 235.) Petitioner filed a reply on June 20, 2008. (Docket No. 236.)
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. 28 U.S.C. § 2255.
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) his plea was coerced and involuntary; (2) the plea agreement is defective; (3) the "tolling" agreements are improper and unenforceable; and (4) he was denied effective assistance of counsel. (Docket No. 229.) Respondent argues that Petitioner's claims are procedurally barred and, in any event, lack merit.
1. Petitioner's Plea was Knowing and Voluntary
Petitioner claims that his plea was "coerced and involuntary" because his lawyer (1) failed to adequately explain the charges against him, (2) failed to provide him with "knowledge and understanding of basic issues," (3) gave him an incorrect plea agreement to review, and (4) ignored his request to ask this Court for an adjournment of the plea hearing. (Docket No. 229, ¶¶ 9 (A) (ii), (iii), (vi), and (ix).)
The Supreme Court has held that the "voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review." Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). In cases where a criminal defendant has procedurally forfeited a claim due to his or her failure to raise it on direct appeal, the claim may be raised in a § 2255 motion only if the defendant can demonstrate either: (a) cause for failing to raise the issue on appeal and prejudice resulting therefrom or (b) actual innocence. Rosario, 164 F.3d at 732. It is the petitioner's burden to show that his plea was not knowing and voluntary. See Hargrove v. United States, No. 03-CV-6634, 2004 WL 2123497, at *2 (W.D.N.Y. Aug. 10, 2004).
In the instant case, Petitioner admits that he did not file an appeal of his conviction or sentence. (Docket No. 229, ¶¶ 5, 6, 8.) As such, his claim that his plea was not knowing and voluntary is procedurally defaulted. Moreover, Petitioner does not assert any cause for failing to file an appeal, nor does he claim to be actually innocent.
Further, even if the procedural default were set aside and Petitioner's claim was reviewed on the merits, this Court is satisfied that the transcript of the plea allocution overwhelmingly demonstrates that Petitioner entered his guilty plea knowingly and voluntarily.
"A plea is voluntary when it is not induced by threats or misrepresentations, and the defendant is made aware of the direct consequences of the plea . . . [a] pleas is knowing and intelligent when the defendant is competent, aware of the charges and advised by competent counsel." United States v. Galbraith, 313 F.3d 1001, 1006 (7th Cir. 2002).
As it does with each criminal defendant entering a guilty plea, this Court adhered to the strictures of Rule 11 of the Federal Rules of Criminal Procedure and made every effort to ensure that Petitioner's plea was knowing and voluntary. The following exchanges occurred:
The Court: All right. In connection with this plea agreement and the entry of a plea as structured today, I take it that you consulted with everybody that you - - including yourself, but anybody else that you sought to consult with in terms of information gathering so that you can for yourself make an intelligent decision on whether to proceed forward, is that a fair statement?
Petitioner: I have, your Honor. Including my family members.
The Court: Okay. And you've had sufficient time to mull this all over and decide what ...