The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Petitioner moves pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside or correct his sentence. In support of his motion, Petitioner advances the following grounds: (1) the Court violated his due process rights because it based his sentence on materially false information;
(2) Petitioner was not afforded the opportunity to contest the information used by the Court at sentencing; (3) Petitioner's counsel was ineffective because he did not challenge the viability of the sentencing guidelines; and (4) sentencing counsel was ineffective because he did not present scientific studies showing that viewers of child pornography are a low risk to recidivate. Petitioner also asserts that his waiver of direct appeal and collateral attack in the plea agreement was improper and invalid.
On July 17, 2007, Petitioner pled guilty to both counts of a two-count Superseding Information, specifically, possession of child pornography in violation of 18 U.S.C. §§ 2252A(9a)(5), (b)(2) and 2256(8)(A). Petitioner also acknowledged that he destroyed a tangible object (here, a company-issued laptop computer) in a federal investigation in violation of 18 U.S.C. § 1519. No appeal was taken from the judgment of conviction. On March 3, 2009, Petitioner filed this motion to vacate under 28 U.S.C. § 2255.
Under U.S.C. § 2255, a prisoner may move the court which imposed his sentence to vacate, set aside, or correct the sentence only if he asserts "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.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). "In this collateral attack upon his conviction, petitioner bears the burden of establishing by a preponderance of the evidence that he is entitled to relief." United States. v. Gallo-Lopez, 931 F. Supp. 146, 148 (N.D.N.Y. 1996); Parsons v. United States, 919 F. Supp. 86, 88-89 (N.D.N.Y. 1996). "If, upon the Court's review of the record, moving papers, and any attached exhibits and affidavits, 'it plainly appears ... that the movant is not entitled to relief', the Court may summarily dismiss petitioner's motion." Id. (citing Rule 4(b) of the Rules Governing Proceedings in the United States District Courts Under Section 2255 of Title 28, United States Code).
"Where a petitioner does not bring a claim on direct appeal, he is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom." Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993)(overruled on other grounds Massaro v. United States, 538 U.S. 500, 509 (2003))(citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). "One way for a § 2255 petitioner to satisfy both the cause and prejudice requirements is to prove that he received ineffective assistance of counsel." Gallo-Lopez, 931 F. Supp. at 148; Murray v. Carrier, 477 U.S. (1986). Awaiver of an appeal provision in a plea agreement generally does not constitute "cause" for failing to take a direct appeal. See Garcia-Santos v. United States, 273 F.3d 506, 508 (2d Cir. 2001); United States v. Pipitone, 67 F.3d 34 (2d Cir. 1995). Where, as here, there is a guilty plea, the Supreme Court has noted that "habeas review is an extraordinary remedy and will not be allowed to do service for an appeal. Indeed, the concern with finality served by the limitation on collateral attack has special force with respect to convictions based upon guilty pleas." Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828 (1998).
In the instant case, Petitioner waived his right of direct appeal and collateral attack in his plea agreement. If Petitioner's waiver of appeal is valid then he is procedurally barred from raising his due process claims through a § 2255 motion. Petitioner's motion requires an inquiry into whether the plea agreement at issue was constitutionally valid.
a. WHETHER PETITIONER WAIVED HIS RIGHT OF COLLATERAL ATTACK
There is no general bar to a waiver of appeal or collateral attack rights in a plea agreement. Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d Cir. 2002). "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." Id. "'[W]aivers of the right to appeal a sentence, like waivers of constitutional rights, are invalid unless they are voluntary and knowing.'" United States v. Monzon, 359 F.3d 110, 116 (2d Cir. 2004) (quoting United States v. Ready, 82 F.3d 551, 556 (2d Cir. 1996)). "Thus, a defendant's promise in a plea agreement to forgo the right to appeal a sentence is not enforceable unless 'the record "clearly demonstrates" that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary.'" Monzon, 359 F.3d at 116 (quoting Ready, 82 F.3d at 557). "Where the record clearly demonstrates that the defendant's waiver of her right to appeal a sentence within an agreed Guidelines range was knowing and voluntary, that waiver is enforceable." Monzon, 359 F.3d at 117.
"To raise a claim despite a guilty plea or appeal waiver, the petitioner must show that the plea agreement was not knowing and voluntary . . . because 'the advice he received from counsel was not within acceptable standards.'" Id; see Parisi, 529 F.3d at 138 (quoting United States v. Torres, 129 F.3d 710, 715-16 (2d Cir. 1997)). "In challenging the ineffectiveness of counsel in connection with a plea agreement, a defendant is challenging 'the constitutionality of the process by which he waived [his right to appeal].'" Parisi, 529 F.3d at 138 (quoting United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001)).
Everything that occurs prior to a guilty plea or entry into a plea agreement informs the defendant's decision to accept or reject the agreement. An ineffective assistance of counsel claim survives the guilty plea or the appeal waiver only where the claim concerns the advice the defendant received from counsel. Thus, although challenging the attorney's role in shaping the defendant's bargaining position cannot avoid the waiver, challenging the attorney's advice about that bargaining ...