The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is Defendant's motion filed pursuant to 28 U.S.C. § 2255.*fn1 In his motion, Defendant claims that his counsel did not explain to him the appropriate sentence he could receive, believing he would receive a 37 month sentence when, in fact, he received a 60 month sentence. He also claims he was unaware he was giving up his right to appeal and challenge his sentence. He also claims this court did not grant him any leniency in his sentence. The first two allegations are claims of incompetency of counsel.
Before addressing the ineffective assistance of counsel claims, this court must first determine whether Defendant has knowingly and intelligently waived his right to appeal pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 2255.
At the change of plea proceeding, a Spanish speaking interpreter was present. Defendant was advised by the Government at that proceeding that paragraph 32 of the plea agreement provides for a waiver of appeal -- both direct and collateral. (Transcript of Change of Plea Proceeding ("Tr.") at pp. 20-22.) This court also advised Defendant that he waived his right to appeal his conviction and sentence, either directly or collaterally. (Tr at p. 8.) He was further advised that he could file an appeal, but whether the court of appeals would address it was within the court of appeals discretion. (Tr. at p. 8.)
Defendant cites two cases for the proposition that a defendant can never knowingly and intelligently waive the right to appeal or collaterally attack a sentence that has not yet been imposed, United States v. Raynor, 989 F. Supp. 43 (D.D.C. 1997) and United States v. Demetrius Johnson, 992 F. Supp. 437 (D.D.C. 1997). Counsel for Defendant has, however, cited Third Circuit case law contrary to the above holdings. United States v. Howard, 319 F. Appx. 165 (3d Cir. 2009); United States v. Khattak, 273 F.3d 557, 561 (3d Cir. 2001).
At the change of plea proceeding, Defendant was asked whether the plea agreement had been translated for him. He replied in the affirmative. (Tr. at p. 9.) He was asked whether he had any questions about his rights and he replied in the negative. (Tr. at pp. 12-13.)
In light of the above, this court finds Defendant understood the waiver of appeal and that the waiver was knowingly and intelligently entered.
B. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, Defendant must establish that (1) the performance of counsel fell below an objective standard of reasonableness; and (2) the errors of counsel prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
The first prong requires a defendant to show that counsel was not functioning as counsel as guaranteed by the Sixth Amendment. Id. at 687. The benchmark for judging any claim of ineffectiveness of counsel is "whether counsel's conduct so undermined the proper functioning of the adversarial process ...