The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On October 19, 2009, Petitioner filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (#1) and a Motion requesting sentencing proceedings (#1, p. 5; #2). On November 17, 2009, the Government filed a Motion to Dismiss (#4). On December 5, 2009, Petitioner filed a Response to the Government's Motion to Dismiss (#6).
This Court has reviewed the record in this case. Following careful and thorough review, this Court agrees with the Government that when Petitioner voluntarily entered into the Plea Agreement, he waived his right to pursue relief under 28 U.S.C. § 2255. Furthermore, Petitioner has failed to provide any evidence beyond a bare allegation that either his acceptance of the Plea Agreement was involuntary or that his counsel had provided ineffective assistance by improperly coercing him into accepting the Plea Agreement. Therefore, Petitioner's Motion (#1) is DISMISSED. Because Petitioner's Motion is dismissed, the Motion requesting sentencing proceedings (#2) is denied as MOOT.
On April 15, 2008, in Case No. 08-CR-20022, Petitioner was charged by indictment with two counts of distribution of five grams or more of cocaine base ("crack") (Counts 2 and 4); and one count of conspiracy to distribute and to possess with the intent to distribute, five grams or more of cocaine base ("crack") (Count 1) in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii).
On July 3, 2008, pursuant to a written plea agreement and with the assistance of retained counsel, Petitioner pled guilty to Counts 1 and 2 of the indictment. The Government agreed to dismiss Count 4 at the time of the sentencing. The agreement also provided that Petitioner would cooperate with the Government, and that, conditional upon Petitioner's substantial assistance, the Government could, at its sole discretion, make a motion at sentencing for a downward departure from the sentencing guideline range, and from the statutory minimum sentence. The written plea agreement stated, in pertinent part:
24. The United States and the defendant, while agreeing that the defendant is guilty of the conspiracy charged in Count 1 of the indictment, disagree on the amount of cocaine base "crack" involved in the conspiracy for which the defendant is criminally liable
25. The defendant understands and agrees that at the time of sentencing the Court may receive evidence and make a factual finding as to the amount of cocaine base "crack" involved in the conspiracy charged in Count 1 of the indictment, and that amount will then be used to determine the applicable mandatory minimum penalty, if any, and to calculate the applicable advisory Sentencing Guideline range. The defendant agrees that the Court will not be bound under this agreement by the positions of either party and will be free to make its own independent findings as to the amount of cocaine base "crack" for which the defendant is liable. An objection to the Court's ruling will not give the defendant any right to withdraw his guilty plea.
The written plea agreement also stated:
WAIVER OF RIGHT OF APPEAL FROM CONVICTION AND SENTENCE
26.... Understanding those rights, and having thoroughly discussed those rights with the defendant's attorney, the defendant knowingly and voluntarily waives the right to appeal any and all issues relating to this plea agreement and conviction and to the sentence... on any ground whatever, in exchange for the concessions made by the United States in this plea agreement.
WAIVER OF RIGHT TO COLLATERAL ATTACK
27.... The defendant's attorney has fully discussed and explained this waiver 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 notwithstanding any advice the defendant may or may not have received from the defendant's attorney regarding this right.
28. Regardless of any advice his attorney has given him one way or the other, in exchange for the concessions made by the United States in this Plea Agreement, specifically including the opportunity to cooperate with the United States and possibly provide sufficient substantial assistance to induce a motion for a downward deviation as set forth above, the defendant hereby knowingly and voluntarily waives his right to challenge any and all issues relating to his plea agreement, conviction and sentence, including any fine or restitution, in any collateral attack, including, but not limited to, a motion brought under Title 28, United States Code, Section 2255. The defendant acknowledges and agrees that the effect of this waiver is to completely waive any and all ...