The opinion of the court was delivered by: Judge Nora Barry Fischer
This matter is before the Court on a Motion to Vacate, Set Aside or Correct Sentence  under 28 U.S.C. § 2255 filed by Petitioner Vernon Jackson and as later amended in an Amended Motion.*fn1 (Docket No. 490-2). Petitioner claims that his Sixth Amendment right to effective assistance of counsel was violated because his counsel failed to file a notice of appeal after his sentencing, despite an explicit request from him to do so. The Government maintains that Petitioner's Motion should be denied as he waived his right to file a motion under 28 U.S.C. § 2255 and to appeal his sentence in a plea agreement and that his claims are otherwise meritless. Based on the following, said Motion  is DENIED.
On October 27, 2004, a Criminal Complaint and Arrest Warrant were issued for Petitioner, who was then arrested. (See Docket No. 1). After a detention hearing, Petitioner was held without bond pending trial. (Docket No. 8). Thereafter a federal grand jury in the Western District of Pennsylvania returned a one count indictment against Petitioner and seven co-defendants charging them with conspiracy to distribute and to possess with the intent to distribute one hundred (100) grams or more of heroin from in or around May 2004 to on or about October 27, 2004, in violation of 21 U.S.C. § 846. (See Docket No. 11). On March 30, 2005, a federal grand jury returned a one count superseding indictment against Petitioner and four co-defendants, charging them with conspiracy to distribute and to possess with the intent to distribute one kilogram or more of heroin from in or around 2002 to on or about October 27, 2004, in violation of 21 U.S.C. § 846. (Docket No. 67). Subsequently, the federal grand jury returned a six-count second superseding indictment against Petitioner and his co-defendants Duane Moore, Khalid Burris, Jacqulyn Jackson, William Payne and Douglas Caplan on August 20, 2005, adding money laundering charges.*fn2 (Docket No. 117). Jury selection and trial for this matter were set to commence on September 26, 2006.
A. Petitioner's Appointed Counsel
Petitioner changed his counsel several times throughout this matter. Initially, he was represented by Paul R. Gettleman, Esq., who later withdrew. (See text only entry of Jan. 9, 2006). Robert Stewart, Esq. was then appointed as Petitioner's counsel on September 13, 2005. (Docket No. 132). Mr. Stewart filed a motion to withdraw as counsel on June 2, 2006 citing a potential conflict of interest. (Docket No. 208). Said motion was granted by the Court on June 5, 2006. (Docket No. 209). Charles M. Schwartz, Esq. was next appointed as Petitioner's counsel on June 6, 2006. (Docket No. 210). Mr. Schwartz filed a motion to withdraw on July 18, 2006, citing multiple irreconcilable scheduling conflicts as trial was scheduled to commence on September 25, 2006 and last four to six weeks. (Docket No. 222). Said motion was granted by the court on July 21, 2006. (Docket No. 223).
Chris Rand Eyster, Esq. was then appointed to serve as Petitioner's counsel on July 21, 2006. (Docket No. 226). However, Petitioner filed a motion to appoint new counsel and to disqualify attorney Chris Rand Eyster, Esq. on August 21, 2006. (Docket No. 250). A motion hearing was held on September 25, 2006 before the Honorable Thomas Hardiman at which time testimony and argument were heard concerning Petitioner's motion as well as a motion to dismiss under the Speedy Trial Act filed by his counsel on September 24, 2006 and a motion to strike the venire panel. (Docket No. 299). With respect to the motion to disqualify counsel, Mr. Eyster represented to the Court that Petitioner expressed some dissatisfaction with him and his former counsel in that Petitioner believed "that the Government offered him a deal and he did not have an opportunity to communicate to myself whether he accepted it or rejected it." (Docket No. 484 at 5). Petitioner testified that Mr. Eyster made him miss a plea deal that the government had offered as he was unavailable to discuss it with him and did not schedule the change of plea. Id. at 5-8. Mr. Eyster than generally outlined the plea negotiations in which he was involved on Petitioner's behalf. Id. at 9.
He offered that the "missed" deal that Petitioner described involved Petitioner pleading guilty to count one of the second superseding indictment and the parties' stipulation that the amount of heroin for Guideline calculations purposes would be between one and three kilograms. Id. at 8-9. Mr. Eyster maintained that this deal was rejected by Petitioner because he would be facing a mandatory minimum of ten years and he wanted the stipulation to involve less than one kilogram, which would not subject him to the mandatory minimum. Id. at 9. He further stated that there were other deals, one of which involved both Petitioner and his wife/co-defendant Jacqulyn Jackson. Id. In that deal, Petitioner would plead guilty to counts one and two of the second superseding indictment, with certain stipulations, and Ms. Jackson would plead guilty to count one and stipulate to lesser amounts as well as receive the benefit of a 5k motion. Id. Mr. Eyster asserted that Ms. Jackson would not accept this deal which caused the negotiations to fall apart. Id. at 9-10. Both Mr. Eyster and Petitioner also offered statements regarding Petitioner's access to Jencks and other discovery materials. Ultimately, the Court denied Petitioner's motion to disqualify finding that there was communication between Petitioner and Mr. Eyster and that disqualification was not warranted under the circumstances. Id. at 15. The Court also denied Petitioner's motion to dismiss and his motion to strike the venire panel. Id. at 14-15, 25-27.
B. Petitioner's Guilty Plea
On September 26, 2006, Petitioner pled guilty in open court before the Honorable Thomas Hardiman to counts one and two of the second superseding indictment at Criminal No. 04-299: (1) conspiracy to distribute one kilogram or more of heroin from in or around 2002 to on or about October 27, 2004, in violation of 21 U.S.C. § 846; and (2) conspiracy to launder money instruments, from in or around May 2003 to on or about October 27, 2004, in violation of 18 U.S.C. § 1956(h). (Docket No. 304). Petitioner's guilty plea was made pursuant to the terms of a written plea agreement between Petitioner and the Government, signed on the date his guilty plea was entered. (See Docket No. 305).
1. Written Plea Agreement
In addition to the guilty plea on the above counts, the written plea agreement required Petitioner to "acknowledge responsibility for the conduct charged at counts 3, 4, 5, and 6 of the Second Superseding Indictment," pay a special assessment to the Clerk of Court, waive former jeopardy or double jeopardy claims, and waive certain appeal rights. (Docket No. 305 at 1-2). With regard to his appellate rights, Petitioner specifically agreed to:
[waive] the right to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, subject to the following exceptions:
(a) If the United States appeals from the sentence, Vernon Jackson may take a direct appeal from the sentence.
(b) If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, Vernon Jackson may take a direct appeal from the sentence.
The foregoing reservations of the right to appeal on the basis of specified issues do not include the right to raise issues other than those specified.
Vernon Jackson further waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any other collateral proceeding attacking his conviction or sentence. (Docket No. 305 at 2). The plea letter concludes with the following provision: "[t]his letter sets forth the full and complete terms and conditions of the agreement between Vernon Jackson and the United States Attorney for the Western District of Pennsylvania, and there are no other agreements, promises, terms or conditions, express or implied." (Docket No. 305 at 5). In addition, the final page states that: "I have received this letter from my attorney, Chris Rand Eyster, Esquire, have read it and discussed it with him, and I hereby accept it and acknowledge that it fully sets forth my agreement with the Office of the United States Attorney for the Western District of Pennsylvania. I affirm that there have been no additional promises or representations made to me by any agents or officials of the United States in connection with this matter." (Docket No. 305 at 6) The plea agreement is executed directly below this passage by Vernon Jackson dated 9/26/06 and as witnessed by Chris Rand Eyster, Esquire, counsel for Vernon Jackson. (Id.).
2. Change of Plea Hearing
At the change of plea hearing, Petitioner was placed under oath and asserted that he understood that any untruthful statements that he made were subject to penalties of perjury. (Docket No. 485 at 2-3). Petitioner was thirty-eight years old, high school educated, and asserted that he could read, write and understand the English language at the time of his guilty plea. (Docket No. 485 at 5-6). He acknowledged that he read and reviewed the entire indictment with his counsel, that he understood the charges against him, and that he intended to plead guilty to counts one and two of the second superseding indictment charging him with conspiracy to distribute heroin and money laundering, respectively. (Id. at 3-5). Petitioner was advised of all of his trial rights by the Court, which he asserted that he understood and that by pleading guilty to the charges he acknowledged he was waiving those rights, which he also understood. (Id. at 5-8).
The Court advised Petitioner of the possible penalties for each charge including that he was subject to "not less than ten years and not more than life imprisonment" for the heroin conspiracy and up to a maximum of twenty years for the money laundering conspiracy. (Id. at 9). Petitioner was also informed of the applicable terms of supervised release and the penalties associated with violating the conditions of supervised release. (Id. at 9-10).
The Court next informed Petitioner of the Sentencing Guidelines and the advisory nature of the same under the Supreme Court decision in Booker. (Id. at 10-13). Petitioner asserted that he understood that the Court could not compute the Guideline range for his case until after a Presentence Investigation Report was prepared and both parties had an opportunity to object to the same. (Id. at 11). After invitation from the Court, counsel for the Government and Petitioner both offered their projections as to the applicable Guideline range. (Id. at 12-13). Counsel for the Government indicated that he "had not done a detailed Guidelines calculation" but estimated that Petitioner's offense level would be 30 after a two level reduction for acceptance of responsibility which the Government had agreed to in the plea agreement. (Id.). That estimation in connection with his "best estimate" that Petitioner would have a criminal history category of II, resulted in an estimated Guideline range of 108-135 months except that Petitioner was subject to a mandatory minimum sentence of 120 months. (Id.). Petitioner's counsel generally agreed with that calculation except that he argued that Petitioner was entitled to a three level reduction for acceptance of responsibility. (Id.).
The Court explained to Petitioner and he confirmed that he understood that "after it has been determined what Guidelines range [ ] applies to a case, the Judge has the authority to depart from that Guideline range and impose a sentence that is more severe, that is, longer, or less severe, that is, shorter, than that called for by the Guidelines, as long as the sentence imposed is within the statutory range and is reasonable." (Id. at 13-14). Subsequently, the Court questioned Petitioner about his potential waiver of appellate rights, to which Petitioner answered in the affirmative. Specifically, the Court posed the following:
THE COURT: Do you also understand that, unless waived by agreement, you or the Government may have the right to appeal any sentence that I impose?
THE DEFENDANT: Yes, sir. (Docket No. 485 at 14). Thereafter, the plea agreement was handed to the Petitioner, who acknowledged that he had signed the agreement. (Id. at 14). He also answered affirmatively to questioning that he had read and reviewed the plea agreement fully with his counsel. (Id.). Further, Petitioner responded affirmatively that he understood the contents of the agreement and that such agreement was the entire understanding and agreement between him and the Government regarding the charges against him. (Id.).
Subsequently, Assistant United States Attorney Troy Rivetti, Esq., described to the Court the Government's evidence against the Petitioner, outlining his extensive role in conspiracies to distribute heroin and launder money. (Id. at 13-34). Petitioner replied in the affirmative when questioned if he agreed with the Government's description of his criminal conduct and asserted that he still intended to plead guilty to the charges against him. (Id. at 34). Petitioner's counsel, Chris Eyster, Esq., affirmed that the entry of a guilty plea by Petitioner was consistent with his advice to Petitioner. (Id.). Thereafter, Petitioner affirmed that he was not forced to plead guilty, that he had not been offered or promised anything in exchange for his guilty plea other than that set forth in the plea agreement and that his guilty plea was his own free and voluntary act. (Id. at 35). The Court next questioned Petitioner in the following manner:
THE COURT: Are you satisfied in all respects with the advice and representation of your counsel?
THE DEFENDANT: Yes, sir. (Id. at 35). Upon request of the Court, the terms of the plea agreement were then read in open court by Mr. Rivetti. (Docket No. 485 at 36-39).
Mr. Jackson agrees in part A of the letter that he will plead guilty to counts one and two of the second superseding indictment, which the Court has already reviewed with him here in open court today.
He acknowledges his responsibility for the conduct charged in counts three through six of the second superseding indictment and stipulates that that conduct charged therein can be considered by the probation office or the court in imposing sentence.
He agrees to pay a two hundred dollars special assessment. He waives any form of jeopardy or double jeopardy claims he had in connection with any related, civil or administrative, actions. He waives his right to take a direct appeal from the conviction or sentence, subject to two exceptions.
First, if the United States appeals from the sentence, then he can take a direct appeal from the sentence. And second, if the sentence exceeds the applicable statutory limits set forth in the United States Code, or the sentence unreasonably exceeds the guideline range determined by the Court, then he can take a direct appeal from the sentence.
The reservations [sic] of the right to appeal on the basis of those specified issues, it does not include the right to raise any other issues. He waives his right to file a motion to vacate his sentence under 28 U.S.C. section 2255, attacking the conviction or sentence with the right to file any other collateral proceeding attacking the conviction or sentence.
(Docket No. 485 at 36-37).
Finally, the Court found that Petitioner was competent, that he knew and understood his right to a jury trial and the consequences of waiving that right and that he knew what the maximum penalties were. (Id. at 40). The Court then approved the plea agreement and accepted Petitioner's guilty plea at counts one and two of the second superseding indictment at Criminal No. 04-00299. (Id.).
C. Petitioner's Position With Regard to Sentencing Factors
Prior to his sentencing, on December 1, 2006, Petitioner filed his Position With Regard to Sentencing Factors setting forth his objections to the Presentence Investigation Report. (Docket No. 326). In said Position, Petitioner's former counsel Chris Rand Eyster, Esquire argued that he was entitled to a 3-level reduction for acceptance of responsibility pursuant Guideline § 3E1.1(b) and advanced several arguments as to why Petitioner was entitled to downward departures from the Guideline range. (Id.). Pertinent here, it was also argued that Petitioner was entitled to a downward departure because of his "cooperation and Rule 11 proffer to the government [which] resulted in his wife's guilty plea reflecting her low level of culpability and saving the government the expense of prosecuting an innocent spouse." (Id. at ¶ 2(g)).
At the sentencing hearing on December 22, 2006, argument was heard by the Honorable Thomas M. Hardiman, who rejected Petitioner's objections to the sentencing guideline range computed by the Probation Office (Adjusted Base Offense Level 32, Criminal History Category III -151 to 188 months). (Docket No. 486 at 8-21). As set forth in his Position, counsel for Petitioner argued that Petitioner was entitled to a 3 level reduction for acceptance of responsibility, which the Government opposed.
MR. EYSTER: ... due to the circumstances of this case where Mr. Jackson received inadequate representation from counsel for nearly two years, it seems that the court should take this into account, the fact that Mr. Jackson cooperated by providing information to the Government which led to a fair assessment of his wife's involvement in ...