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United States v. Whitner

October 30, 2009

UNITED STATES
v.
REGIE WHITNER



The opinion of the court was delivered by: Donetta W. Ambrose Judge, United States District Court

OPINION AND ORDER

SYNOPSIS

In this criminal action, Defendant pleaded guilty to a single count of violating 21 U.S.C.§ 846. Subsequently, he was sentenced to a term of imprisonment of 235 months. He has filed a Petition pursuant to 28 U.S.C. § 2255, seeking to vacate his sentence. Defendant raises several grounds for his Motion, including the invalidity of his waiver of appeal and collateral attack rights. Primarily, the Motion is based on an allegedly deficient plea colloquy in violation of Fed. R. Crim. P. 11, and on ineffective assistance of counsel with respect to the plea and on appeal.*fn1 I have carefully reviewed all of Defendant's submissions.

For the following reasons, the Motion will be denied and no certificate of appealability shall issue.

OPINION

I. APPLICABLE STANDARDS

Relief is available under Section 2255 only under exceptional circumstances, when the claimed errors of law are "a fundamental defect which inherently results in a complete miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed. 2d 417 (1962).

A district court need not hold an evidentiary hearing on a Section 2255 motion if the motion, files, and records show conclusively that the defendant is not entitled to relief. United States v. Ritter, No. 02-2604, 93 Fed. Appx. 402, 2004 U.S. App. LEXIS 5692, at *4 (3d Cir. Mar. 26, 2004). Under these standards, a hearing is unnecessary in this case, and I will dispose of the Motion on the record.

Finally, a pro se pleading is held to less stringent standards than pleadings drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed. 2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed. 2d 652 (1972). Thus, a pro se habeas petition should be construed liberally. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998). I will consider Defendant's Motion according to these standards.

II. DEFENDANT'S MOTION

A. Waiver

I first address the Government's contention that Defendant has waived the right to file the present Motion. Defendant and his counsel both signed a plea agreement that contained the following language:

[Defendant]....waives the right to file a motion to vacate sentence under 28 U.S.C. 2255 attacking the conviction or sentence or the right to file any other kind of collateral proceeding attacking the conviction or sentence.*fn2

Defendant and his counsel signed the following statement, appended to the plea agreement:

I have received this letter from my attorney...have read it and discussed it with him, and I hereby accept it and acknowledge that it fully sets ...


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