The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter is before the Court on Petitioner Valerie Morgan's Petition under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (d/e 1) (Petition). The Court now makes the initial consideration of Petitioner's Petition under Rule 4 of the Rules Governing § 2255 Cases, and finds that summary dismissal is warranted.
On April 26, 2004, pursuant to a written Plea Agreement, Morgan pleaded guilty to the charges of Wire Fraud in violation of 18 U.S.C. § 1343 (Count 3), as alleged in the Superseding Indictment (Case. No 03-30063, d/e 52), and Illegal Monetary Transaction in violation of 18 U.S.C. § 1957 (Count 13), as alleged in the Superseding Indictment. Pursuant to the Plea Agreement, Morgan waived her right to collaterally attack her conviction and/or sentence.*fn1 See Case No. 02-30063, Plea Agreement (d/e 188).
At the change of plea hearing, before accepting Morgan's pleas of guilty to Counts 3 and 13 of the Superseding Indictment, the Court conducted a thorough colloquy pursuant to Federal Rule of Criminal Procedure 11. During the Rule 11 colloquy exchange between the Court and Morgan, the Court repeatedly asked Morgan whether she was entering her plea knowingly and voluntarily, and Morgan responded affirmatively. When the Court asked her whether she had an opportunity to read the Plea Agreement and discuss the contents of the Agreement with her retained attorney, Bradley Stephenson, Morgan said "I did." When the Court asked Morgan whether she was satisfied with her attorney's representation, Morgan said "I am." Following the Rule 11 colloquy, the Court accepted Morgan's pleas of guilty to Counts 3 and 13 of the Superseding Indictment.
On May 2, 2005, Petitioner filed a Motion to Withdraw Plea (02-30063, d/e 216), based upon numerous grounds, including that: (1) the Government engaged in unjust misrepresentations, falsehoods, and unconstitutional coercive behavior, (2) the Government failed to allow her to enter an Alford plea, (3) the Government failed to accept her version and assertions about how Morgan & Associates (M&A) did work on the Moorman's project, (4) the Government blocked vital defense evidence, (5) the prosecutor told Petitioner that she would not have to agree to the charges if she pled guilty, only if she understood them; and that (6) her attorney was inexperienced in federal court. See North Carolina v. Alford, 400 U.S. 25 (1970). After a hearing, the Court rejected all of Morgan's claims because they were either baseless or belied by her own statements at the change of plea hearing. The Court thus did not find any basis to allow Petitioner's Motion to Withdraw Plea, and denied the Motion.
On May 12, 2005, this Court sentenced Petitioner to a total of 48 months of imprisonment on each of Counts 3 and 13, to run concurrently.*fn2 Petitioner was ordered to pay $524,161.19 in restitution. Petitioner was ordered to serve a term of three years of supervised release on each count of conviction, to run concurrently. On May 20, 2005, Petitioner filed a Notice of Appeal. On May 9, 2006, Petitioner filed a motion to dismiss her appeal, and the Court of Appeals accordingly dismissed Petitioner's appeal on May 10, 2006. Petitioner has now filed a § 2255 habeas petition.
As she did in the May 12, 2005, hearing on her Motion to Withdraw Guilty Plea, Petitioner raises similar arguments why her conviction and sentence should be vacated, set aside, or corrected pursuant to 28 U.S.C. § 2255. First, Petitioner argues that the Government engaged in prosecutorial misconduct and violated her right to due process by failing to search ADM/Moorman's and co-defendant Virginia Rainey's computer, which would have revealed that M&A billed Moorman's for services that it, in fact, had rendered.*fn3 She further contends that the Government engaged in prosecutorial misconduct, violated her right to due process, and perpetrated fraud upon the Court by conspiring with her former counsel Bradley Stephenson in coercing her to plead guilty.
Second, Petitioner argues that her former attorney Stephenson, whom she claims not only lacked experience in criminal prosecutions, but also lacked a sense of responsibility to his client, rendered ineffective assistance of counsel because: (1) he failed to bring M&A's billing information and other exculpatory evidence to the Court's attention; (2) he coerced her into entering into a Plea Agreement with the Government by making false promises, including his promise that she would be entering into an Alford plea; and (3) he failed to explain to her about the questions she would be asked at the change of plea hearing.
Paragraph 10 of the Plea Agreement provided as follows: The defendant also understands that she has a right to attack the conviction and/or sentence imposed collaterally on the grounds that it was imposed in violation of the Constitution or laws of the United States; that she received ineffective assistance from her attorney; that the Court was without proper jurisdiction; or that the conviction and/or sentence was otherwise subject to collateral attack. The defendant understands such an attack is usually brought through a motion pursuant to Title 28, United States Code, Section 2255. The defendant and the defendant's attorney have reviewed Section 2255, and the defendant understands her rights under the statute. Understanding those rights, and having thoroughly discussed those rights with the defendant's attorney, the defendant knowingly and voluntarily waives her right to collaterally attack the conviction and/or sentence. The defendant's attorney has fully discussed and explained the defendant's right to attack the conviction and/or sentence collaterally with the defendant. The defendant specifically acknowledges that the decision to waive the right to challenge any later claim of the ineffectiveness of the defendant's counsel was made by the defendant alone nothwithstanding any advice the defendant may or may not have received from the defendant's attorney regarding this right. Regardless of any advice the defendant's attorney may have given the defendant, in exchange for the concessions made by the United States in this plea agreement, the defendant hereby knowingly and voluntarily waives her right to collaterally attack the conviction and/or sentence. The rights waived by the defendant include his [sic] right to challenge the amount of any fine or restitution, in any collateral attack, including, but not limited to, a motion brought under Title 28, United States Code, Section 2255. Plea Agreement, ¶ 10.
The Seventh Circuit has explained that a plea agreement containing a clause that waives a petitioner's "right to file a § 2255 motion is generally enforceable unless the waiver was involuntary or counsel was ineffective in negotiating the agreement." Bridgeman v. United States, 229 F.3d 589, 591 (7th Cir. 2000)(citing Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000)). In order to assess the counsel's performance or conduct during the pleading phase, the Supreme Court has held that courts must apply the Strickland test. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985); Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, to prevail on her claim of ineffective assistance of counsel during the plea negotiation stage, Morgan must show that: (1) her attorney's performance was objectively unreasonable, and (2) such performance prejudiced her. Strickland, 466 U.S. at 687-88. The Court evaluates "the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. This Court's review of counsel's performance is "highly deferential." Id. at 689.
In the present case, the Court finds that by signing the written Plea Agreement and agreeing to the terms set forth in the Plea Agreement, and by stating in open court that she was knowingly and voluntarily pleading guilty, Petitioner waived her right to file a collateral attack based upon all of the grounds Petitioner now raises in her Petition, including her ineffective assistance of counsel claim. Other than her bare assertions, there is no evidence in the record to support Morgan's claims.*fn4 Morgan's assertions are further belied by her own statements during the change of plea hearing that:
(1) she was satisfied with her attorney's service, (2) she had thoroughly discussed the terms of the Plea Agreement with her attorney, (3) she was pleading guilty to the charges in Counts 3 and 13 because she was in fact guilty of the charges in her own mind, and (4) that she was knowingly and voluntarily giving up her right to collaterally attack her conviction and/or sentence. More importantly, this Court has already addressed all of the issues that Morgan now raises in her Petition during the evidentiary hearing held on May 12, 2005, on Morgan's Motion to Withdraw Guilty Plea.
With respect to Morgan's argument that the Government engaged in prosecutorial misconduct by failing to consider the fact that M&A actually performed work for Moorman's, this Court noted, at the hearing on May 12, 2005, that the Government had a legitimate basis for its theory that M&A did not perform any work for Moorman's. This Court further noted that the fact that the Government failed to accept Morgan's version of the story did not show that the Government violated Morgan's constitutional ...