The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
On August 7, 2003, a Superseding Indictment was returned by a grand jury sitting in the Northern District of New York. See 03-CR-0243, Dkt. No. 69 ("Superceding Indictment"). That accusatory instrument alleged that petitioner pro se Anthony Jackson and others combined, conspired, confederated, and agreed to engage in a pattern of racketeering activity through their membership in a criminal enterprise known as the Boot Camp Gang. Id.
On January 15, 2004, following negotiations between Jackson's counsel and Assistant United States Attorney John Katko ("AUSA Katko"), the parties entered into a plea agreement relating to the Superceding Indictment. 03-CR-0243, Dkt. No. 199 ("Plea Agreement"). That agreement contained, inter alia, the factual basis for Jackson's guilty plea (see Plea Agreement at ¶ 4) and provided that, under the terms of the Plea Agreement, he was expressly waiving his right to appeal or collaterally attack his conviction and any sentence of imprisonment of 210 months or less. Id. at ¶ 11.
At the proceeding over which this Court presided wherein Jackson formally entered his change of plea, the Court informed him of the rights he would be waiving by entering a guilty plea and the consequences of that plea. See Transcript of Change of Plea of Anthony Jackson (03-CR- 0243, Dkt. No. 370) ("Plea Tr.") at pp. 2-4. After Jackson acknowledged that he was aware of those facts, id. at p. 4, the Court took his guilty plea and then elicited answers from him which established, inter alia, that he had not been threatened into changing his plea, he was not under any duress, and he was entering the plea voluntarily and of his own free will. Id. at pp. 6-11. AUSA Katko then discussed what the Government would have proven if the case had gone to trial, id. at pp. 13-15, and Jackson conceded that he had engaged in the acts summarized by the prosecutor which led to the criminal charges that were brought against Jackson. Id. at p. 15. AUSA Katko then declared on the record that although Jackson was not subject to any mandatory minimum term of imprisonment, he might nevertheless receive a maximum term of life imprisonment in light of his guilty plea. Id. at pp. 15-16. Jackson also acknowledged that his counsel had discussed the United States Sentencing Guidelines ("Sentencing Guidelines") with Jackson, and that he understood their application to his case. Id at p. 17. This Court then accepted his guilty plea. Id. at pp. 22-23.
At the sentencing hearing following Jackson's guilty plea, this Court found his Total Offense Level to be 31, his criminal history category to be V, and the applicable range of imprisonment under the Sentencing Guidelines to be between 168 and 210 months. See Transcript of Sentencing of Anthony Jackson (1/5/05) (03-CR-0243, Dkt. No. 623) ("Sentencing Tr.") at p. 9. The Court thereafter imposed a sentence of 189 months imprisonment on Jackson. Id.*fn2
Jackson filed an appeal of the foregoing with the Second Circuit. In an unpublished decision dated January 19, 2007, that court granted the Government's motion for "summary affirmance of Jackson's judgment of conviction and sentence," however it permitted Jackson to pursue a collateral challenge to his conviction relating to the voluntary nature of his guilty plea and the effectiveness of his trial counsel through a motion brought pursuant to 28 U.S.C. § 2255. See United States v. Edwards et al., No. 04-6558-cr, 214 Fed.Appx. 57, at *62 (2d Cir. Jan. 19, 2007).
On December 14, 2007, Jackson commenced the present action by filing a Motion to Vacate, Set Aside or Correct his Sentence. See 07-CV-1303, Dkt. No. 1 ("Motion to Vacate"). In his application, Jackson argues that his guilty plea must be set aside because he received the ineffective assistance of trial counsel in the related criminal matter. See Motion to Vacate. Specifically, he claims that such counsel: i) wrongfully represented to Jackson that he could not receive a sentence of imprisonment longer than ten years if he pleaded guilty; ii) improperly claimed that if Jackson elected to proceed to trial on the charges in the Superceding Indictment, he could be sentenced to a maximum term of life imprisonment; and iii) permitted Jackson to plead guilty to a Racketeer Influenced and Corrupt Organizations Act ("RICO") charge despite the fact that the Superceding Indictment did not contain allegations which, if proven, would have established his guilt of a RICO violation. See Motion to Vacate; see also Memorandum of Law in Support of Motion to Vacate (03-CR-0243, Dkt. No. 724).
The Office of the United States Attorney for the Northern District of New York, acting on respondent's behalf, filed a memorandum of law in opposition to Jackson's application. See 03-CR-0243, Dkt. No. 789. In that submission, respondent argues that the claims asserted by Jackson in this action are without merit and that his application must be denied. Id.
Petitioner thereafter filed a reply memorandum of law in further support of his Motion to Vacate. See 03-CR-0243, Dkt. No. 801. In that filing, Jackson reiterates his claims that his Motion to Vacate should be granted. Id.
A. Applicable Legal Standard
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const., amend. VI. Courts have long recognized this right to counsel as one that entitles a defendant to the right to the effective assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (citations omitted). Under the familiar two-part test of Strickland v. Washington, 466 U.S. 668 (1984), an individual who claims he received the ineffective assistance of counsel must demonstrate that the representation: i) "fell below an objective standard of reasonableness," id. at 688; and ii) prejudiced the petitioner. Id. at 694; see also Campusano v. United States, 442 F.3d 770, 773 (2d Cir. 2006) (citing Strickland, 466 U.S. at 688, 694).
B. Substance of Jackson's Claims
i) Representations of Counsel Regarding Maximum Sentence If Jackson Pleaded Guilty
Petitioner initially argues that trial counsel wrongfully advised Jackson that he could not receive a sentence of imprisonment longer than ten years if he entered a guilty plea before this Court. See Motion to Vacate, Point 1. Specifically, he claims that although the Plea Agreement did not specifically discuss the range of imprisonment to which he would be subject upon entering his guilty plea, trial counsel "affirmatively misled [Jackson] by stating that the plea agreement would result in a sentence of no more than 10 years imprisonment. [Petitioner] would have gone to trial rather than plead guilty if he knew that he could be sentenced to more than 10 years." Id. at p. 3. In support of this claim, Jackson has submitted an affidavit completed by Tiffany Waymon, the mother of Jackson's child, in which she declares, inter alia, that in January, 2004, she met with Jackson's counsel and two detectives, and that at that time, she was informed that Jackson "didn't feel he was guilty of everything the prosecution was accusing him of. And he did not want to take a deal for ten years. [Defense counsel] and the detectives then told [Waymon] that ten years would be the max [Jackson] would receive." See 03-CR-0243, Dkt. No. 724-2 ("Waymon Aff.") at ¶¶ 4-5. Petitioner also cites the transcript of the proceeding wherein he pleaded guilty in support of this claim. He notes that at that hearing, when this Court inquired of AUSA Katko whether he could provide a "ball park figure" concerning Jackson's sentence under the Sentencing Guidelines, the Government's attorney stated: "Worst case scenario, it's at a criminal history category IV, and assuming that, and he's a level 32, minus three for acceptance of responsibility, which the government believes he qualifies for, he would face a sentencing range of 121-151 months imprisonment." See Motion to Vacate at p. 5 (quoting Sentencing Tr. at pp. 16-17). He claims that the foregoing establishes that he received the ineffective assistance of counsel when he was sentenced to a term of 189 months imprisonment. Motion to Vacate at pp. 4-6.
Initially, the Court notes that Jackson's claims are refuted by the terms of his Plea Agreement into which he voluntarily entered.*fn3 Specifically, the terms of that agreement clearly provide that Jackson was subject to a maximum term of life imprisonment upon his guilty plea ...