The opinion of the court was delivered by: Judge Muir
On November 4, 2003, a federal grand jury returned a two-count indictment charging Lou Ann Badman with 1) conspiracy to distribute and possess with intent to distribute in excess of 500 grams of Methamphetamine, and 2) possession with intent to distribute in excess of 500 grams of methamphetamine. Badman ultimately pled guilty to the charge in count 1 and on February 23, 2006, we sentenced her to a 10-year term of imprisonment. The judgment was entered on March 2, 2005.
On March 6, 2006, Badman filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255. After notifying Badman of the options available to her pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999), Badman advised us on April 12, 2006, that she wished to withdraw her motion and file a subsequent "all-inclusive" § 2255 motion.
On April 24, 2006, Badman filed her supplemental § 2255 motion and a supporting brief. The government filed its opposition brief on May 15, 2006. Badman filed a reply brief on June 5, 2006, thereby ripening her § 2255 motion for disposition.
Title 28 United States Code § 2255 authorizes a federal prisoner to move the sentencing court to vacate, set aside, or correct a sentence if the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, .... 28 U.S.C. § 2255. Before considering whether Badman is entitled to any relief pursuant to that section based on the claims asserted in her § 2255 motion, we will set forth the relevant procedural and factual history of the underlying criminal proceedings.
The indictment and an arrest warrant were filed on November 4, 2003. Badman retained Attorney Joseph M. Devecka to represent her in this case. On December 1, 2003, Badman entered a plea of not guilty.
On December 22, 2003, a thirteen-page plea agreement was filed. In that document Badman, inter alia, "agrees to plead guilty to Count I of the Indictment ...." (Plea Agreement, p. 1, ¶1) Paragraph two on page two of the document confirms that "[c]ount 1 carries a mandatory minimum period of imprisonment of ten (10) years." Paragraph twenty-seven on pages ten and eleven provides as follows:
The defendant is aware that Title 18 United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging all of this, the defendant knowingly waives the right to appeal any sentence imposed within the statutory maximum, or the manner in which the sentence was determined, on the grounds set forth in Title 18, United States Code, Section 3742, or any other grounds. The defendant also waives the defendant's right to challenge any sentence or the manner in which the sentence was determined in any collateral proceeding, including but not limited to a motion brought under Title 28, United States Code, Section 2255. The defendant further acknowledges that this appeal waiver is binding only upon the defendant, and that the United States retains its right to appeal in this case. (Plea Agreement, pp. 10-11, ¶27)(Emphasis added)
A separate three-page document entitled "Statement of Defendant" was also filed in connection with Badman's plea agreement on December 22, 2003. In paragraph 4 on page 2 of that document, Badman represented the following: "I further understand that as part of the plea agreement, I am waiving my right to appeal and/or challenge my conviction and sentence, and the manner in which it was imposed." (Statement of Defendant, p. 2, ¶4) The closing paragraph of that document provides that she "fully understand[s] the foregoing statement, consisting of 2 typewritten pages."*fn1 (Statement of Defendant p. 3)
Badman's guilty plea hearing was held on January 29, 2004.
During that proceeding counsel and the court discussed the significance of the waivers contained in paragraph 27 of the plea agreement. Badman indicated that she understood all of the rights which she was giving up by pleading guilty, including the waivers addressed in paragraph 27 of her plea agreement. The following exchange regarding those waivers occurred at Badman's guilty plea proceeding:
Mr. Casey: May I raise something? Were you going to go over the waiver of appeal? There is a waiver of appeal in the agreement.
The Court: I didn't notice that. What paragraph is it?
Mr. Thompson: Paragraph 27.
Mr. Casey: Twenty-seven. Thank you.
The Court: All right. The Defendant knowingly waives the right to appeal any sentence imposed within the statutory maximum or the manner in which that sentence was determined on the grounds set forth in Title 18, Section 3742 or any other grounds. Why should we permit that?
Mr. Casey: Your Honor, the Defendant has agreed as part of a negotiation in reaching a plea agreement to waive her rights under that paragraph. It's been approved -- that procedure has been approved by the Third Circuit Court of Appeals. ... I think it should be permitted here, Judge, because I think she's getting a very favorable plea agreement. As Mr. Devecka knows, the quantity of methamphetamine that she's being held accountable for is less than could possibly be proved if we were to put on additional evidence at sentencing.
We have agreed not to do that and to hold her accountable only for the amount that was physically -- the actual drug that was possessed and not for amounts that could have been proved prior to that time. And I think Mr. Devecka would agree it would be in her interest to accept the plea agreement.
The Court: I don't know what you have to say, but I am very uneasy about Defendants giving up their right to appeal. Why do you think it should be done? What if we impose a sentence that is clearly wrong?
Mr. Devecka: I heard the testimony of the postal inspector at a suppression hearing in state court. He did not know what was in the packages that he did not actually inspect. So I'm not sure whether the government could show more than they have.
Mr. Casey: Well, Your Honor --
The Court: Wait. He's not answering my question. Why do you think she ought to waiver her right to appeal?
Mr. Devecka: Not for the reason given by the government. I have always been hesitant to blanket waiver any appeal on a sentence. But it was ...