The opinion of the court was delivered by: DuBOIS, J.
This case arises out of two interrelated convictions of petitioner, Keith Waters, for crimes related to the distribution of cocaine base. In 2000, petitioner was indicted for conspiracy to distribute cocaine base and aiding and abetting the distribution of cocaine base. Petitioner pleaded guilty to three counts of aiding and abetting such distribution within 1,000 feet of a school zone and was sentenced, inter alia, to 151 months incarceration. In 2001, defendant was indicted a second time for conspiracy to distribute cocaine base; in 2003, he was found guilty of this charge after trial by jury. The first sentence imposed in the 2001 case, life imprisonment, was reversed based on the then-recent Supreme Court decision in United States v. Booker, 543 U.S. 220 (2005); on remand, petitioner was sentenced to, inter alia, a term of thirty years in the 2001 case.
In 2005, petitioner succeeded in challenging his guilty plea in the 2000 case on the ground of ineffective assistance of counsel. According to petitioner's testimony, counsel explained to him that a guilty plea would permanently dispose of all conspiracy charges and would protect him from reindictment for conspiracy. Defense counsel was not called as a witness to confirm or deny that statement. The court concluded that such alleged advice was contrary to the provisions of the plea agreement, which said nothing about a permanent disposition of all conspiracy charges. In the absence of contrary evidence, the court ruled that this advice of counsel was ineffective and, accordingly, the judgment and sentence were vacated. Petitioner remains incarcerated on the conspiracy conviction in the 2001 case.
Currently before the Court is petitioner's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. Petitioner argues that his 2001 conviction should be vacated on the ground that, inter alia, the 2001 indictment was motivated by prosecutorial vindictiveness. For the reasons that follow, petitioner's motion is denied.
On September 6, 2000, petitioner was indicted ("2000 Indictment") and charged with one count of conspiracy to distribute cocaine base, three counts of aiding and abetting the distribution of cocaine base, and three counts of aiding and abetting the distribution of cocaine base within 1,000 feet of a school. United States v. Waters, No. 00-CR-522-02 (E.D. Pa. Sept. 6, 2000). The 2000 Indictment charged that petitioner and Clifton Junius conspired together to distribute cocaine base from on or about June 21, 2000 to on or about July 20, 2000. (2000 Indictment 1.)
Following his arrest on July 20, 2000, petitioner cooperated with the government, proffering on multiple occasions and otherwise assisting the government in its investigation. (DEA Reports of Investigation, Ex. 1 to Pet'r Reply.) During the proffer sessions, the government informed petitioner that it believed that he was involved in a conspiracy larger than that alleged in the 2000 Indictment-the Coach conspiracy-and petitioner discussed with the government events that occurred before the June 21, 2000 start date of the conspiracy alleged in the 2000 Indictment. (§ 2255 Hr'g Tr. 6, Oct. 7, 2005, No. 00-CR-522-02, Ex. B to Gov't Surreply; DEA Reports of Investigation.) Thereafter, petitioner ceased cooperating because he feared for his life. (§ 2255 Hr'g Tr. 30--32, June 1, 2009, No. 01-457-02.)
On December 18, 2000, petitioner, represented by Brian McMonagle, Esquire, entered into a guilty plea agreement ("Plea Agreement") with the government. In the Plea Agreement, petitioner and the government agreed, inter alia, that petitioner would plead guilty to Counts 3, 5, and 7 of the 2000 Indictment, aiding and abetting the distribution of cocaine base within 1,000 feet of a school in violation of 21 U.S.C. § 860 and 18 U.S.C. § 2. (Plea Agreement ¶ 1, Ex. A to Gov't Surreply.) The government agreed to move at sentencing to dismiss the other counts of the 2000 Indictment as to petitioner, including the conspiracy charge. (Id. ¶ 4.) The Honorable Robert F. Kelly presided over a change of plea hearing on December 18, 2000. At the hearing, following a colloquy held pursuant to Federal Rule of Criminal Procedure 11, Judge Kelly accepted petitioner's plea of guilty to Counts 3, 5, and 7 of the 2000 Indictment, and the government stated its intention to move for the dismissal of the remaining counts at sentencing.
On October 1, 2001, petitioner was sentenced by Judge Kelly to 151 months incarceration and ten years of supervised release on Counts 3, 5, and 7 of the 2000 Indictment; the conspiracy count and the other counts to which petitioner did not plead were dismissed. Thereafter, petitioner appealed to the United States Court of Appeals for the Third Circuit, raising only the issue of "whether the government must show that the drugs seized from a defendant contained sodium bicarbonate in order to demonstrate by a preponderance of the evidence that they are crack for sentencing purposes." United States v. Waters, 313 F.3d 151, 152 (3d Cir. 2002). The Third Circuit held that "the District Court did not err when it found that the government had shown that the substance was crack, even though it did not contain sodium bicarbonate . . ." and affirmed the judgment. Id.
On August 8, 2001, before petitioner was sentenced in the 2000 case, he was charged in a sealed indictment ("2001 Indictment") with one count of conspiracy to distribute cocaine base. United States v. Waters, No. 01-CR-457-02 (E.D. Pa. Aug. 8, 2001). The alleged conspiracy occurred from on or about January 1, 1992 to on or about May 28, 2001. (2001 Indictment 3--4.) The 2001 Indictment was unsealed on September 6, 2001. In the Superseding 2001 Indictment filed on August 7, 2002, the overt acts listed included the three sales from the 2000 Indictment to which petitioner had pled guilty. (Superseding 2001Indictment ¶¶ 45--47.)
The trial on the Superseding 2001 Indictment began on January 27, 2003 before then Chief Judge James T. Giles. Petitioner was represented by Guillermo L. Bosch, Esquire. On March 27, 2003, petitioner was found guilty of conspiracy to distribute cocaine base. On August 22, 2003, Judge Giles sentenced petitioner to life imprisonment and twenty years of supervised release. Petitioner appealed that sentence. On July 7, 2005, in a non-precedential opinion, the Third Circuit affirmed petitioner's conviction but remanded the case for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). United States v. Waters, 138 F. App'x 460, 463 (3d Cir. 2005). On October 28, 2005, Judge Giles sentenced petitioner to thirty years incarceration (to run concurrently with the sentenced imposed by Judge Kelly in the 2000 case) and twenty years of supervised release.
Petitioner appealed his conviction in the 2001 case to the Third Circuit on the ground of prosecutorial misconduct with respect to the Plea Agreement in the 2000 case. On appeal, petitioner argued that the government, by indicting him in the 2001 case, reneged on its promise that his guilty plea in the 2000 case would resolve all known criminal prosecutions pending against him. The Third Circuit affirmed the conviction, holding that petitioner's argument was without merit as "the government never agreed in the plea agreement in the prior prosecution to refrain from bringing additional charges against [petitioner] related to his involvement in [the Coach] drug organization." United States v. Waters, Nos. 05-5744, 05-4914, 06-1821, 2007 WL 2783349, at *2 (3d Cir. Sept. 26, 2007) (non-precedential).
On March 11, 2004, petitioner filed a pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C.§ 2255 in the 2000 case ("First § 2255 Motion"). Judge Kelly appointed Patrick J. Egan, Esquire, to represent petitioner and held an evidentiary hearing on October 7, 2005. The critical question presented by the First § 2255 Motion was whether McGonagle provided ineffective assistance of counsel with respect to petitioner's Plea Agreement. Petitioner argued and testified at the hearing that "McGonagle advised that a guilty plea would completely dispose of the conspiracy charge against him involving the alleged drug transactions in June/July 2000." Mem. & Order of Dec. 13, 2005, at 9, No. 00-CR-522-02. McMonagle was not called to testify at that hearing, and there was no contrary evidence regarding his claimed advice to petitioner. Petitioner contended that, in reliance on this advice, he entered into the Plea Agreement based upon the understanding that he would not be reindicted on any conspiracy charge involving the alleged drug transactions from the June/July 2000 period. Id. at 9--10.
Analyzing petitioner's claim under Strickland v. Washington, 466 U.S. 668 (1984), Judge Kelly concluded that as the Plea Agreement did not provide for a permanent disposition of all conspiracy charges and as McMonagle's claimed advice was to the contrary, McMonagle's assistance fell "below the range of competence demanded of attorneys in criminal cases." Id. at 13. Judge Kelly likewise concluded that such advice had a prejudicial impact on petitioner, who demonstrated that there was a reasonable probability that but for McMonagle's errors, he would not have pled guilty. Id. at 15. Accordingly, Judge Kelly ruled that petitioner's guilty plea was not voluntary and intelligent, and he vacated the judgment and sentence. Id. at 16. A review of the docket discloses that, on June 27, 2007, the retrial on the 2000 Indictment was continued to December 3, 2007. There are no docket entries after June 27, 2007.
Petitioner remains incarcerated on the conspiracy conviction in the 2001 case, serving the thirty-year sentence imposed by Judge Giles. On September 17, 2008, petitioner filed the instant Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 ("Second § 2255 ...