The opinion of the court was delivered by: Padova, J.
Defendant has filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, asking that we vacate his conviction and sentence based on ineffective assistance of counsel and breach by the Government of his Guilty Plea Agreement. The Government has filed a Motion to Dismiss the § 2255 Motion on the grounds that Defendant waived his right to collaterally challenge his conviction and sentence. For the following reasons, the Motion to Dismiss is granted.
On September 27, 2006, Defendant was charged with (1) one count of trafficking in counterfeit goods, in violation of 18 U.S.C. §§ 2320 and 2 (Count I); (2) one count of conspiracy to smuggle goods, in violation of 18 U.S.C. § 371 (Count II); and (3) nine counts of money laundering of amounts greater than $10,000, in violation of 18 U.S.C. § 1957 (Counts III-XI). The charges against Defendant arose from his participation in a scheme in which he fraudulently imported blank watch parts, maintained and operated a clandestine counterfeit Rolex watch-making factory, sold thousands of counterfeit Rolex watches to vendors and customers, and paid amounts exceeding $10,000 into several accounts with money derived from trafficking in counterfeit goods. Defendant was arrested in Vietnam on December 7, 2007. On October 6, 2008, Defendant pled guilty to all counts of the indictment and agreed not to contest forfeiture of $2,273,166 and all counterfeit goods and manufacturing equipment seized by the government.
Defendant's Guilty Plea Agreement contains the following provision: In exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law.
This waiver is not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived. (Plea Agreement ¶ 8.) Notwithstanding the waiver, the Guilty Plea Agreement permits Defendant to file a direct appeal of his sentence if the Government appeals from the sentence; or, if the Government does not appeal, Defendant is permitted to file a direct appeal, but may raise only the following claims: "(1) the defendant's sentence on any count of conviction exceeds the statutory maximum for that count...; (2) the sentencing judge erroneously departed upward pursuant to the Sentencing Guidelines; [or] (3) the sentencing judge... imposed an unreasonable sentence above the final Sentencing Guideline range determined by the Court." (Id.)
We held a change of plea hearing, at which Defendant had the assistance of an interpreter, on October 6, 2008. After questioning Defendant regarding his willingness to enter into and understanding of the Guilty Plea Agreement, and finding that he was competent to plead, that his guilty plea was voluntary, and that there was a factual basis for the guilty plea, we accepted his guilty plea. (10/6/08 N.T. at 34.) On March 11, 2009, Defendant was sentenced to a term of 72 months imprisonment followed by 3 years of supervised release, and was ordered to pay a special assessment in the amount of $1,100, and restitution in the amount of $2,273,166.
Defendant appealed his judgment of conviction and sentence to the United States Court of Appeals for the Third Circuit on March 23, 2009. The Government moved to dismiss his appeal based upon the appellate waiver in Defendant's Guilty Plea Agreement. That motion was granted by the Third Circuit, which dismissed the appeal on July 21, 2009. United States v. Tran, No. 09-1841, Order (3d Cir. July 21, 2009).
On August 4, 2009, Defendant filed his pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 and an accompanying Memorandum of Law (the "Memorandum"). He filed a supplemental pleading adding an additional ground for relief on August 18, 2009. Defendant seeks relief from his judgment of conviction and sentence based on four claims of ineffective assistance of counsel and on the ground that the Government breached his Guilty Plea Agreement. The Government filed the instant Motion to Dismiss on September 10, 2009, asking that we enforce Defendant's waiver of the right to collaterally attack his conviction and dismiss the § 2255 Motion. Defendant filed a response to the Motion to Dismiss on September 21, 2009 in which, inter alia, he requested an evidentiary hearing.
We held a Hearing on November 18, 2009 to address all outstanding motions. During the Hearing, we asked Defendant why he had requested an evidentiary hearing and what evidence he intended to submit at such a hearing. Defendant proffered that his counsel advised him that if he pleaded guilty he would receive a sentence of only 30 months but that he would receive a sentence of 60 months if he did not plead guilty and was convicted at trial; that the presentence investigation report incorrectly calculated his offense level for sentencing purposes; that he would not have pleaded guilty had he known that his total offense level would be greater than 24 or that he would receive a sentence of more than 30 months; that he engaged in counterfeiting on his own and without any associates; and that he was a first-time offender and wished to be considered for the safety valve. Defendant further indicated that he would not call any witnesses at an evidentiary hearing.
Title 28, United States Code, Section 2255 provides as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). "In order to prevail on a Section 2255 motion, the movant's claimed errors of law must be constitutional, jurisdictional, 'a fundamental defect which inherently results in a complete miscarriage of justice,' or 'an omission inconsistent with the rudimentary demands of fair procedure.'" United States v. Perkins, Crim. A. No. 03-303, Civ. A. No. 07-3371, 2008 WL 399336, at *1 (E.D. Pa. Feb. 14, 2008) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
The United States Court of Appeals for the Third Circuit has held that a waiver of appellate or collateral rights is enforceable provided that (1) it was entered into knowingly and voluntarily; (2) no specific exception set forth in the agreement applies; and (3) enforcement of the waiver would not work a miscarriage of justice. United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008) (citing United States v. Jackson, 523 F.3d 234, 243-44 (3d Cir. 2008); see also United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir. 2001); United States v. Shedrick, 493 F.3d 292, 297-98 (3d Cir. 2007). To evaluate whether enforcement of a waiver would result in a miscarriage of justice, the Third Circuit has adopted a number of factors that must be considered, including: "'the clarity of the error, its gravity, its character..., the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result.'" Khattak, 273 F.3d at 563 (quoting United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001)). While the miscarriage-of-justice determination ...