The opinion of the court was delivered by: John G. Koeltl, District Judge
MEMORANDUM OPINION AND ORDER
The petitioner, Juan Faife (the "petitioner"), appearing pro se, moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The petitioner pleaded guilty to one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and to one count of the underlying substantive offense of distribution and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). Pursuant to a plea agreement (the "Plea Agreement") the petitioner waived his right to appeal or litigate under 28 U.S.C. §§ 2255 and 2241.
The petitioner argues he received ineffective assistance of counsel at the time of his sentencing, and that the waiver of the right to appeal or litigate under 28 U.S.C. § 2255 does not bar this section 2255 petition.
On November 16, 2006, the petitioner pleaded guilty pursuant to the Plea Agreement to one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and to one count of distribution and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). (Plea Tr. 12:5-13:16, 27:9-15; Plea Agr. 1.) On February 29, 2008, this Court sentenced the petitioner principally to a term of incarceration of 120 months on Counts One and Two, to run concurrently, followed by a three-year term of supervised release on both counts to run concurrently. (Sent. Tr. 26:18-27:7.)
In the Plea Agreement, the parties stipulated that pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1(c)(1), the base offense level for Counts One and Two of the superseding information was 38. (Plea Agr. 2.) After a two-level "safety-valve" reduction under U.S.S.G. § 2D1.1(b)(9) and a three-level reduction for acceptance of responsibility under § 3E1.1, the offense level was 33. (Plea Agr. 2.) The Government also calculated that the petitioner had zero criminal history points and accordingly, the parties stipulated that the petitioner was in Criminal History Category I. (Plea Agr. 3.) Based on these calculations, the Stipulated Sentencing Guidelines Range was 135 to 168 months imprisonment. (Plea Agr. 3.) The Plea Agreement also provided that 21 U.S.C. §§ 846 and 841(b)(1)(A) required a statutory minimum term of 120 months. (Plea Agr. 3.) However, the Government concluded that the petitioner was eligible for relief from the minimum statutory provision based on his satisfaction of the "safety-valve" criteria set forth in 18 U.S.C. § 3553(f). (Plea Agr. 3.) The Government sought a sentence within the Stipulated Sentencing Guidelines Range, without regard to the statutory minimum sentence. (Plea Agr. 3.)
The Plea Agreement contained a waiver provision by which the petitioner agreed that he "will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below this Stipulated Guidelines Range of 135 to 168 months." (Plea. Agr. 4.) The parties further agreed that any sentence within the Stipulated Sentencing Guidelines Range would be reasonable. (Plea Agr. 3.)
The petitioner entered his guilty plea on November 16, 2006, with the assistance of a Spanish interpreter. (Plea Tr. 1-2:16.) Before accepting the plea, this Court advised the petitioner of each of the constitutional rights he would be waiving by pleading guilty. (Plea Tr. 7:17-11:14.) The petitioner indicated his understanding and his desire to plead guilty. (Plea Tr. 7:17-19:14.) The petitioner indicated that he had discussed the waiver of indictment and his guilty plea with his attorney. (Plea Tr. 6:22-7:1.) The Court asked, "Are you satisfied with Mr. Leader and his representation of you?" (Plea Tr. 7:2-3.) The petitioner responded, "Yes." (Plea Tr. 7:4.) The petitioner acknowledged that he was waiving the right to prosecution by indictment and agreed to proceed by the superseding information, and the Court summarized the charges for him. (Plea Tr. 10:7-13:16.) The Court explained the maximum penalties for the crimes as well as the mandatory minimum sentences and the petitioner said that he understood. (Plea Tr. 14:22-17:7.) This Court then explained to the petitioner the operation of the advisory Sentencing Guidelines and the petitioner indicated that he understood. (Plea Tr. 17:21-19:14.)
The petitioner acknowledged that the Plea Agreement had been translated for him before he signed it and that he fully understood it. (Plea Tr. 19:15-20:20.) He confirmed that the Plea Agreement contained "everything that [he] underst[oo]d about [his] plea and [his] sentence." (Plea Tr. 20:8-10.) The petitioner stated that no promises or threats had been made to him to induce him to plead guilty, or to enter into the Plea Agreement. (Plea Tr. 20:17-20.)
This Court read to the petitioner the waiver provision in the Agreement. (Plea Tr. 20:21-25.) The Court asked, "Mr. Faife, do you understand you have given up or waived your right to appeal or otherwise challenge or litigate in any proceeding, including any habeas corpus proceeding, any sentence within the range of 135 to 168 months or any sentence below that range[?]" (Plea Tr. 20:25-21:4.) The petitioner responded, "Yes." (Plea Tr. 21:5.) The petitioner admitted his guilt, and explained the factual basis for his plea. (Plea Tr. 23:17-25:9.) The petitioner stated that he was entering his plea voluntarily and this Court accepted his plea and found that it was knowing and voluntary. (Plea Tr. 27:18-19, 28:8-15.)
Following this guilty plea, the petitioner's counsel wrote a letter to the Court, dated October 9, 2007, and requested a sentence below the Sentencing Guidelines Range based on various considerations including personal factors. (Pet'r's Mot. Ex. C.)
The petitioner appeared for sentencing before this Court on February 29, 2008, with the presence of a Spanish interpreter, who translated the entire proceeding for him. (Sent. Tr. 1-2:11.) After addressing several questions from the petitioner, this Court accepted the findings of fact in the Pre-sentence Report ("PSR"). (Sent. Tr. 23:18-19.) After considering the various sentencing factors set forth in 18 U.S.C. § 3553(a), the Court imposed a term of imprisonment of 120 months on Counts 1 and 2, to run concurrently, and a term of three years' supervised release on both counts to run concurrently. (Sent. Tr. 23:18-24:7.) The judgment setting forth the terms of the sentence was signed on March 3, 2008.
Notwithstanding the waiver of appeal contained in the Plea Agreement, the petitioner filed a pro se notice of appeal on March 14, 2008. The petitioner's counsel on appeal filed an Anders brief requesting to be relieved as counsel on the grounds that, first, the petitioner had waived his right to appeal, and second, there were no non-frivolous issues to be raised on appeal. (See Anders Br. 14-21.) The Government also filed a motion to dismiss the petitioner's appeal, or in the alternative, for summary affirmance. The Second Circuit Court of Appeals granted summary affirmance on February 23, 2009. See United States v. Faife, No. 08 Cr. 1333 (2d Cir. Mar. 17, 2009).
The petitioner then filed this motion on January 19, 2010, to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, in which he raises the claim of ...