The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:
Defendant George Bing Tonks (Tonks) petitions under 28 U.S.C. 2255 to vacate, set aside or correct his sentence, claiming ineffective assistance of counsel.
On November 27, 2007, Tonks pled guilty pursuant to a written plea agreement, dated June 18, 2007. The plea agreement stated "defendant will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 . . . any sentence within or below the Stipulated Guidelines Range [of] . . . 108 to 135 months . . . ." When the plea was taken, the Court specifically called this waiver provision to Tonks' attention. (Nov. 27, 2007 Tr. at 10:15-22.) Tonks said in open Court, while under oath, that he understood this waiver. (Id. at 10:22.) Tonks was sentenced within the Guidelines Range to 115 months.
Notwithstanding his waiver, Tonks appealed and raised the same scandalous grounds he raised before he voluntarily pled guilty. The Second Circuit affirmed his conviction. U.S. v. Catalano, et al., 372 Fed. App'x 168, 170, 2010 WL 1559067, at *2 (2d Cir. 2010). Tonks' 2255 petition returns to his scandal mongering, makes the same allegations, but now claims ineffective assistance of counsel. He contends that had defense counsel properly and competently investigated his scandalous allegations, somehow Tonks would not have been forced to plead guilty.
Tonks claims three types of ineffectiveness: (1) failure to investigate, subpoena, challenge, object or appeal issues relating to a claim of outrageous government conduct that he raised before the Court prior to his guilty plea (Mot. at 7.), and failure to request a competency hearing (id.); (2) failure to investigate, challenge, object or appeal his allegedly involuntary plea (id. at 10.); and (3) failure to challenge vindictive prosecution and fraud upon the Court (id. at 14.).
Tonks' petition is DENIED. Tonks voluntarily agreed to waive his right to collaterally attack his sentence and that waiver is enforceable. Further, the claims of ineffective trial and appellate counsel are without merit.
A. Tonks' Plea Agreement and Guilty Plea
On September 11, 2006, Tonks and his co-conspirators were charged in a two-count indictment with wire fraud conspiracy and a wire fraud scheme, in which Tonks solicited interest from people who wanted to appear in adult movies. (Criminal Indictment, Dkt 23; PSR ¶¶ 43, 47-48.) When people responded to the advertisements, they were solicited for "advance fees" for various costs such as screen testing, AIDS testing, and studio space. (PSR ¶ 14, 65.) Needless to say, the money went to Tonks, and when victims called, they were solicited for more money. (Id.)
On November 27, 2007 Tonks pled guilty to Counts One (conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349) and Two (wire fraud, in violation of 18 U.S.C. § 1343), pursuant to a plea agreement dated June 18, 2007. (Gov't Opp. Ex. A at 1.) The plea agreement stipulated a Guidelines sentencing range of 108 to 135 months' imprisonment, which Tonks agreed was reasonable in light of all the 18 U.S.C. § 3553(a) factors. (Id. at 3-5.) In addition, the Plea Agreement stated that:
[T]he defendant 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 the Stipulated Guidelines Range set forth above (108 to 135 months) . . . .
At the plea session, Tonks, under oath, said he understood the indictment's charges, appreciated the consequences of a plea of guilty and was satisfied with his counsel's advice and representation. (Nov. 27, 2007 Tr. at 4:10-22.) Further, Tonks said he had read the plea agreement, discussed it with counsel, and understood its parameters. (Id. at 8:11 to 9:3.) The Court specifically addressed the waiver of appeal and collateral attack provision. (Id. at 10:15-21.) Tonks stated what his criminal conduct was: From August 2001 to, I would say, June of 2006, I agreed with others to operate a business geared towards individuals seeking employment in the adult film industry. We began to defraud those individuals by seeking money from them to participate in films. As part of the conspiracy, I placed ads in newspapers around the country, soliciting individuals to work in the adult film industry. I also picked up money that was wired through Western Union to Manhattan. (Id. at 12:16-24.) In response to further questions, Tonks said he knew the wire transfers were coming from out of state, into New York State, and he acknowledged that he knew what he was doing was wrong. (Id. at 13 to 14:6.)
On May 6, 2008, the Court sentenced Tonks within the guidelines range set forth in the plea agreement to 115 months' imprisonment on Counts One and Two to run concurrently. (Dkt. ...