The opinion of the court was delivered by: Chief Judge Kane
Before the Court is Noe Leinheiser's motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 77), in which he alleges that he was denied effective assistance of counsel. The Government argues that, by his plea agreement, Leinheiser waived his right to bring a motion pursuant to § 2255, and that his motion should therefore be denied without reaching the merits of his allegations. For the reasons that follow, though the Court finds that Leinheiser did not waive his right to pursue his § 2255 claim, Leinheiser's motion will be denied because he has not shown that his counsel was constitutionally ineffective.
On January 7, 2004, a grand jury in the Middle District of Pennsylvania issued a three-count indictment charging Noe Leinheiser with sexual exploitation of children in violation of 18 U.S.C. § 2251, possession of child pornography in violation of 18 U.S.C. § 2252A, and transportation of minors with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423. (Doc. No. 1.) On February 25, 2004, Leinheiser appeared for his arraignment, at which he pleaded not guilty, and the Court appointed counsel to represent him (hereinafter referred to as "plea counsel"). Thereafter, a superseding indictment was filed, adding two additional counts of sexual exploitation of children and seeking forfeiture of certain property. (Doc. No. 10.) A second superseding indictment was filed on May 12, 2004, adding another two counts of sexual exploitation of children. (Doc. No. 20.)
Anticipating the commencement of trial on August 2, 2004, Leinheiser filed a motion in limine seeking to exclude certain videotapes and photographs of nude women who were adults at the time of videotaping, on the grounds that such evidence was irrelevant, unduly prejudicial, and improper character evidence. (Doc. No. 29.) The parties briefed the motion (Doc. Nos. 30, 32), and the attorneys submitted proposed voir dire questions (Doc. Nos. 31, 33).
On August 2, 2004, a jury was selected. Shortly after jury selection, Leinheiser signed a binding plea agreement with a plea to counts III, VII and VIII, and dismissal of the remaining counts. The plea agreement stipulated a sentence of twenty-two (22) years. (Doc. No. 34.) One of the counts involved sexual intercourse with a 16 year-old neighbor, but the plea agreement did not address it. Shortly after the plea agreement was signed, the Court met with the attorneys and indicated that it would not accept the guilty plea.
Two days later, the parties executed a second plea agreement with a stipulated sentence of twenty-five (25) years. (Doc. No. 40.) The plea agreement also contained the following provision by which Leinheiser agreed to waive his right to collaterally attack his sentence:
The defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the conviction and sentence imposed. Acknowledging all of this, the defendant knowingly waives the right to appeal any conviction and sentence imposed pursuant to this Agreement, on any and all grounds set forth in Title 18, United States Code, Section 3742 or any other grounds, constitutional or non-constitutional, including the manner in which that sentence was determined in light [of] Blakely v. Washington, 2004 WL 1402697 (June 24, 2004). The defendant also waives the defendant's right to challenge any conviction or 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. (Doc. No. 40, ¶ 21.) On August 4, 2004, the Court held a change-of-plea hearing, at which the Court conducted a colloquy with the defendant. At the conclusion of the hearing, the Court accepted the plea agreement and scheduled a date for sentencing.
On October 14, 2004, Leinheiser's counsel filed a motion to withdraw as counsel, in which he indicated that Leinheiser made certain accusations against him that limited his ability to provide effective representation. (Doc. No. 47.) The Court granted the motion, permitted counsel to withdraw, appointed new counsel (hereinafter "sentencing counsel") to represent Leinheiser, and on November 15, 2004, sentenced Leinheiser to the stipulated term of twenty-five years' imprisonment. (Doc. Nos. 48, 53.) No appeal was filed.
In December 2005, Leinheiser filed a motion to vacate his sentence, in which he alleged that plea counsel provided ineffective assistance during the plea negotiations. (Doc. No. 77.) Thereafter, the Court issued an administrative order pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999), and Leinheiser elected to proceed with the motion. (Doc. Nos. 83--87.) The Court then issued a show cause order directing the United States Attorney's Office to respond, and on July 10, 2006, the Government filed a brief in opposition, arguing solely that Leinheiser waived his right to collaterally attack his sentence. (Doc. No. 90.) Leinheiser filed a reply on July 21, 2006. (Doc. No. 91.)
The Court then issued an order appointing counsel to represent Leinheiser (Doc. No. 92), and the Court held an evidentiary hearing on Leinheiser's motion. The parties thereafter submitted proposed findings of fact and conclusions of law. (Doc. Nos. 132, 143, 145.)
1. On January 7, 2004, Leinheiser was indicted on charges of sexual exploitation of children in violation of 18 U.S.C. § 2251, possession of child pornography in violation of 18 U.S.C. § 2252A, and transportation of minors with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423.
2. On February 25, 2004, Leinheiser appeared for his arraignment at which he pleaded not guilty, and the Court appointed plea counsel to represent him.
3. On March 31, 2004, a superseding indictment was filed against Leinheiser, and on May 12, 2004, a second superseding indictment was filed.
4. Plea counsel, acting on Leinheiser's behalf, filed a motion in limine seeking to preclude certain video evidence on the grounds that such evidence was inadmissible under the Federal Rules of Evidence.
5. On August 2, 2004, after jury selection and after discussions with plea counsel during which counsel explained the terms of a plea agreement to Leinheiser, the parties signed a plea agreement with a stipulated sentence of twenty-two years.
6. After the Court indicated its unwillingness to accept the plea agreement, the Government prepared a plea agreement with a ...