The opinion of the court was delivered by: Hurley, Senior District Judge
Petitioner Thomas Leano ("Petitioner" or "Leano") moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence arising from a 2005 conviction in this Court. For the reasons set forth below, the motion is denied.
On January 18, 2005 Petitioner was indicted by a grand jury and charged with distribution of and possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1) (C), to which he pled guilty on September 20, 2005, pursuant to a plea agreement.
In paragraph 4 of the plea agreement, Petitioner agreed not to "file an appeal or otherwise challenge the conviction or sentence in the event the Court impose[d] a sentence of 210 months or below." Paragraph 4 also provided that Petitioner "waives any right to additional disclosure from the government in connection with the guilty plea." When Petitioner appeared before Magistrate Judge Wall for the plea allocution on September 20, 2005 he admitted that in or about and between November 2003 and December 16, 2004 he knowingly and intentionally distributed and possessed with intent to distribute cocaine base. (Sept. 20, 2005 Tr. at 19-20.) At that time, Leano also filled out and signed a guilty plea questionnaire in which he acknowledged under oath that (1) he understood the charge to which he was pleading; (2) he read "each and every word"; (3) he had reviewed the plea agreement with his attorney; (4) he understood the agreement and each of its provisions; (5) he understood that he would not be able to challenge the conviction or sentence by appeal or otherwise if he were sentenced to 210 months or less; (6) his plea was voluntary; and (7) he was satisfied with the representation that his attorney had provided.
On April 21, 2006, Petitioner appeared before this Court for sentencing. At that time, the Court had the following colloquy with Leano:
What I want to do, as I mentioned a moment ago, was make inquiry of you concerning one of the provisions in the plea agreement. Paragraph 4, that's numbered paragraph 4 of the plea agreement, in the first sentence reads as follows: "The defendant will not file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a term of imprisonment of 210 months or below."
Mr. Leano, every convicted defendant has a right to appeal, and in this case an appeal would go to the Second Circuit, at least in the first instance. That's a valuable right that a defendant has, convicted defendant, in other words, to challenge the propriety and the legality of what transpired in court and have that reviewed by a higher court. So that's one way a convicted defendant can attack either his conviction and/or sentence.
Also, a defendant, a convicted defendant can -- and you're a convicted defendant because you took a plea -- convicted defendant has a right also to attack a conviction or sentence not by appeal, but by what they call a collateral attack, and that would be, for instance, some type of post sentence motion. One of the types of applications that's often made is an application for a writ of habeas corpus, which you might have heard that term. When a convicted defendant mounts that type of attack on a conviction or sentence the defendant is saying, for the reasons articulated, that one or more of his or her constitutional rights was violated by the court below and, accordingly, the conviction and/or sentence should not stand, and that again is a valuable right that every convicted defendant has. But like most rights or many rights, certainly, that can be surrendered or given up.
Now, under this plea agreement, you will be giving up your right to appeal or otherwise challenge your conviction or sentence should the sentence I impose today include a period of incarceration of 210 months or below.
As I have indicated, this was gone into when your plea was taken and it may very well be that you understood it. Again, out of abundance of caution, I want to go over it with you a little more specifically. Do you understand what I've said in that regard? (April 21, 2006 Tr. at 8-10.) Leano, who was under oath responded "Yes, sir." (Id. at 10. The Court then said to Leano: " All right. Under the circumstances, as I understand it, that provision which is part of the plea agreement is acceptable to you?" Again Leano, who was under oath responded "Yes, sir." (Id.)
A colloquy then followed regarding a letter the Court received from Leano: Court: In your letter, very briefly, but you did indicate, I think it was page nine, a comment about the - - or some level of dissatisfaction with Mr. Singer, although I think that I may be overstating it, it is what is it. What you wrote speaks for itself. But Mr. Singer has said that he's discussed it with you and it's his understanding at least that you'd like to proceed with him as your attorney.
One of the options that you would have is to make a motion to withdraw your plea. Whether that would be granted or not is another question, as you know. But that would be an option that you have, you could have the option to ask me to appoint another attorney. And if there's some reason that you and Mr. Singer can't function together consistent with your need for adequate representation, I certainly would entertain that and probably grant it. I wanted to make sure that you understand the various options.
Against that backdrop, is it your intention or do you desire to continue with Mr,. ...