The opinion of the court was delivered by: Joanna Seybert, U.S.D.J.
On August 8, 2008, Petitioner Christian Galarza ("Petitioner" or "Galarza") filed this Petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons below, the Court DENIES the Petition.
On January 9, 2005, Petitioner, along with others, attempted to rob a jewelry store located in Kings County, New York. Petitioner was arrested by the New York City Police Department on January 28, 2005. On December 5, 2006, this Court held a suppression hearing upon Petitioner's motion to suppress statements made to law enforcement officials; the Court later determined that Petitioner lied under oath at the suppression hearing.
On April 27, 2007, Petitioner entered into a plea agreement with the United States (hereinafter, the "Plea Agreement"). Petitioner pled guilty to one count of conspiracy to commit bank robbery pursuant to 18 U.S.C. § 1951 and one count of using a firearm in relation to a robbery pursuant to 924(c)(1)(A)(ii). Under the Plea Agreement, Petitioner agreed "not to file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a term of imprisonment of 135 months or less." (Plea Agreement ¶ 4.)
On August 7, 2007, this Court sentenced Petitioner to a term of one hundred twenty-five months. Judgment of the conviction was rendered on August 13, 2007. Petitioner did not file an appeal.
On August 8, 2007, Petitioner, proceeding pro se, filed a Petition arguing that he received ineffective assistance of counsel because his court-appointed attorney (1) demonstrated a lack of knowledge of the plea bargaining process, (2) failed to object to material inaccuracies in the Presentence Report ("PSR"), and (3) failed to meet the minimum American Bar Association standards. Additionally, Petitioner asserts that this Court failed to consider and apply the provisions of 18 U.S.C. § 3553(a) in his sentencing.
I. Petitioner Failed to File a Direct Appeal
"In general, a claim may not be presented in a habeas petition where the petitioner failed to properly raise the claim on direct review." Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007). It is well settled that a party who fails to take a direct appeal "and subsequently endeavors to litigate the issue via a § 2255 petition must 'show that there was cause for failing to raise the issue, and prejudice resulting therefrom.'" United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995) (quoting Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993)). Cause is defined as "something external to the petitioner, something that cannot be fairly attributed to him." Id. (internal quotations and citations omitted). Although Petitioner waived his rights to file an appeal, "[s]uch a waiver cannot constitute cause excusing a petitioner's failure to raise a claim on direct appeal." LoCurto v. United States, No. 05-CV-1327, 2006 U.S. Dist. LEXIS 13371, at *37 (E.D.N.Y. Mar. 10, 2006) (citing Garcia-Santos v. United States, 273 F.3d 506, 508 (2d Cir. 2001)).
Petitioner has not presented any basis for his failure to file an appeal. Thus, the Court is precluded from considering the merits of Petitioner's claims. See United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998) ("A motion under § 2255 is not a substitute for an appeal."); Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998); McFarlane v. United States, No. 07-CV-0169, 2008 U.S. Dist. LEXIS 11190, at *5 (E.D.N.Y. Feb. 14, 2008) ("A petitioner cannot assert claims, constitutional or otherwise, that he failed to raise at trial, sentencing or on direct appeal "unless he can establish both cause for the procedural default and actual prejudice resulting therefrom or that he is 'actually innocent' of the crime of which he was convicted.") (quoting DeJesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998)).
II. Effect of Petitioner's Waiver
Even if Petitioner presented cause for failing to appeal, Petitioner's claims would still be without merit. Petitioner waived his right to challenge his sentence under the terms of his Plea Agreement with the Government.
Under his Plea Agreement with the Government, Petitioner stipulated that he would not file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposed a term of imprisonment of one hundred thirty-five months or below. (Plea Agreement ¶ 4). "In general, a defendant's knowing and voluntary waiver of his right to appeal or challenge a sentence within an agreed guideline range is enforceable." United States v. Rosa, 123 F.3d 94, 97 (2d Cir. 1997).
However, the Second Circuit has held that there are certain situations in which a defendant may seek review of a sentence notwithstanding the existence of a waiver pursuant to a plea agreement. Such instances include: "1) the arbitrary practice of sentencing without [proffered] reasons which . . . could in some cases amount to an abdication of judicial responsibility subject to mandamus, . . . 2) the defendant's right to appeal on the grounds of ineffective assistance of counsel, . . . ; and 3) the arguably unconstitutional consideration of naturalized status." See id. at 98 (internal quotation marks and citations omitted); see also United States v. Jacobson, 15 F.3d 19, 23 (2d Cir. 1994). "The same principle[s] appl[y] to a waiver of a right to file a section 2255 petition." Garcia v. United States, No. 04-CV-6020, 2008 U.S. Dist. LEXIS 19438, at *8 (S.D.N.Y. Mar. 14, 2008).
Here, the Court finds that Petitioner knowingly and voluntarily waived his right to appeal. Thus, Petitioner may vacate his sentence only on limited grounds. With the exception of Petitioner's claim that he received ineffective assistance of counsel in ...