The opinion of the court was delivered by: Ausa Hurley, Senior District Judge
Petitioner Nicholas Ashley ("Petitioner" or "Ashley") moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence arising from a 2006 conviction in this Court. Petitioner also seeks appointment of counsel and an evidentiary hearing on the matter. For the reasons set forth below, Petitioner's motion is denied in its entirety.
Petitioner was arrested in 2005 by the Federal Bureau of Investigation ("FBI") on charges that he purchased crack cocaine for distribution, in violation of 21 U.S.C. § 841. On September 26, 2005, pursuant to a written plea agreement, Petitioner pled guilty to possession of, with intent to distribute over five grams of crack cocaine base in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(iii).
The written plea agreement set forth, inter alia, that the charged count in the information carried a maximum term of imprisonment of forty years, a minimum term of imprisonment of five years, a minimum supervised released term of four years, a maximum release term of life, a maximum fine of $2,000,000, and a $100 special assessment fee. (Plea Agreement 1-2.) It further advised that the United States Sentencing Guidelines ("Guidelines" or "Guideline") were not mandatory but merely advisory and that the government estimated that the likely adjusted offense level for Petitioner was 26, calculated as follows:
Base Offense Level (2D1.1(c)(6)) 28 Less: Acceptance of Responsibility (3E1.1(a)) -2 Total: 26 (Plea Agreement at 2.) Assuming Petitioner fell within criminal history category III, the plea agreement advised that this level carried a range of imprisonment of 78 to 97 months. (Id.) Further, the following reductions were made available to Petitioner: (1) if Petitioner pled guilty on or before September 26, 2005, the government would move for a one point reduction, resulting in an offense level of 70 to 87 months, assuming Petitioner fell within criminal history category III, and (2) if at least twelve of Petitioner's co-defendants entered guilty pleas pursuant to plea offers, on or before a specified date, the government would move for a one point reduction, resulting in an offense level of 63 to 78 months, assuming Petitioner fell within criminal history category III. (Id. at 2-3.) In total, if Petitioner met the requirements, his adjusted offense level would be 24. (Id.) The plea agreement went on to state that "[i]f the Guideline offense level advocated by the Office, or determined by the Probation Department or the Court, is different from the estimate, [Petitioner] would not be entitled to withdraw the guilty plea." (Id.)
Under the plea agreement, Petitioner expressly waived his right to "appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a term of imprisonment of 97 months or below." (Plea Agreement at 3-4.)
On September 26, 2005, Petitioner and one of his co-defendants, Andre Boyd, pled guilty before Magistrate Judge William Wall. Petitioner was then sentenced before this Court on April 5, 2006. Prior to sentencing the following colloquy took place:
The Court: Mr. Ashley if you would be seated. As indicated, I just want to go over one aspect of the plea agreement with you. The plea agreement in No. 4 paragraph, reading as follows, the defendant will not file an appeal or otherwise challenge the conviction or sentence in the event the court imposes a term of imprisonment of 97 months or below, close quotes.
I know that you went over this when your plea was taken. As indicated during the plea allocution, if you do receive a sentence which includes a period of incarceration of 97 months or less, you would have no right to appeal your sentence or conviction.
Every convicted defendant typically does have a right to appeal, and in this case you would appeal to the Second Circuit. But like most rights, it can be surrendered or given up. Under this plea agreement, you would lose your right to appeal, again, if that condition occurred, so your sentence included a period of incarceration of 97 months or less.
And that was gone over on a prior occasion, but do you understand that?
The Court: The other aspect I would like to go over with you has to do with what they call a collateral attack. Sometimes a defendant will claim that the conviction and ...