The opinion of the court was delivered by: Judge Nora Barry Fischer
This matter is before the Court on a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 filed by pro se Petitioner Vasile Ciocan. (Criminal No. 07-182, Docket No. 123; Criminal No. 07-398, Docket No. 27). Petitioner claims that his sentence should be vacated because his counsel was ineffective, and that the Court erred at sentencing by failing to award him downward departures for extraordinary remorse and his pretrial conditions. (Id.). The Government filed a Motion to Dismiss the Petitioner's Motion on the basis that he waived his right to file a motion under 28 U.S.C. § 2255 in a plea agreement with the Government. (Criminal No. 07-182, Docket No. 128; Criminal No. 07-398, Docket No. 32).*fn1 Based on the following, the valid waiver in Petitioner's plea agreement will be enforced; therefore, the Government's motion is GRANTED, and Petitioner's motion is DENIED, as moot.
II. Factual Background and Procedural History
On May 8, 2007, a federal grand jury returned a three-count indictment against Petitioner at Criminal No. 07-182. (Docket No. 25). The indictment charged him with conspiracy in violation of 18 U.S.C. § 371, bank fraud in violation of 18 U.S.C. § 1344(1), and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). (Id.). This indictment also included forfeiture allegations against Petitioner. (Id.). On November 13, 2007, Petitioner and the Government filed a consent to transfer Petitioner's case at Criminal No. 07-360 in the United States District Court for the Northern District of Ohio to this Court for plea and sentencing, where it was assigned Criminal No. 07-398. (Criminal No. 07-398, Docket No. 1). In that case, the one-count indictment charged Petitioner with access device fraud in violation of 18 U.S.C. § 1029(a)(3). (Id.; Docket No. 1-2).
Thereafter, on December 7, 2007, Petitioner pled guilty to Counts Two and Three of the indictment at Criminal No. 07-182 and to Count One of the indictment at Criminal No. 07-398, pursuant to a written plea agreement with the Government. (Docket Nos. 59, 60; see also Transcript of Change of Plea Hearing, Docket No. 129). The Government agreed to move to dismiss Count One of Criminal No. 07-182. (Docket No. 60). In addition to Petitioner's guilty plea to Counts Two and Three at Criminal No. 07-182 and Count One at Criminal No. 07-398, the written plea agreement required him to "acknowledge responsibility for the conduct charged in Count One of the Indictment at Criminal No. 07-182," pay a special assessment to the Clerk of Court, waive former jeopardy or double jeopardy claims, pay mandatory restitution, and forfeit his right to certain property listed therein (Docket Nos. 60, 60-1). He also agreed to waive the right to initiate post-conviction proceedings challenging his sentence. Specifically, the plea agreement provides that:
Vasile Ciocan waives the right to take a direct appeal from his conviction or sentence, at either Criminal No. 07-360 or Criminal No. 07-182, under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, subject to the following exceptions:
(a) If the United States appeals from the sentence, Vasile Ciocan may take a direct appeal from the sentence.
(b) If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, Vasile Ciocan may take a direct appeal from the sentence.
Vasile Ciocan further waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any other collateral proceeding attacking his conviction or sentence. (Docket No. 60 at ¶ A. 7). The plea agreement concludes, stating that "[t]his letter sets forth the full and complete terms and conditions of the agreement between Vasile Ciocan and the United States Attorney for the Western District of Pennsylvania, and there are no other agreements, promises, terms or conditions, express or implied." (Docket No. 60 at 5). Further, Petitioner asserted that "I have received this letter from my attorney, William Schmalzreid, Esquire, have read it and discussed it with him, and I hereby accept it and acknowledge that it fully sets forth my agreement with the Office of the United States Attorney for the Western District of Pennsylvania. I affirm that there have been no additional promises or representations made to me by any agents or officials of the United States in connection with this matter." (Id. at 5-6). The agreement is executed by Vasile Ciocan on October 12, 2007, and signed as witnessed by: William Schmalzried, Esquire, Counsel for Vasile Ciocan. (Id. at 6).
Prior to sentencing, Petitioner, through counsel, set forth numerous factual objections to the presentence investigation report as well as objections affecting Petitioner's total advisory offense level and criminal history, which, in turn, arguably affected his advisory guideline range. (Docket No. 78). The Court issued its Tentative Findings and Rulings on April 4, 2008, sustaining certain of Petitioner's factual objections but overruling others. (Docket No. 81). Accordingly, the Court calculated Petitioner's total offense level as 13, his criminal history category as I, and the applicable advisory guidelines range as 12 to 18 months imprisonment. (Id. at ¶ IV.1).
On April 15, 2008, the Court held a sentencing hearing. As all of Petitioner's prior convictions had occurred in Canada, the Government moved for an upward departure under U.S.S.G. § 4A1.3(a)(2)(A), which provides that foreign convictions may be considered in sentencing if a defendant's criminal history is substantially underrepresented. The Court granted the motion and increased Petitioner's criminal history category to V, which changed the guidelines range to 30 to 37 months. (See Docket No. 84). At Criminal No. 07-182, the Court sentenced Petitioner to 37 months imprisonment at Count Two and added 24 months imprisonment at Count Three, said terms to be served consecutively. (Docket No. 85). The Court then sentenced Petitioner to a term of 37 months imprisonment at Count One at Criminal No. 07-398, to run concurrently with the term imposed at Criminal No. 07-182. (Id.). Petitioner also received concurrent terms of supervised release and was ordered to pay restitution. (Id.). Petitioner then appealed his sentence to the Court of Appeals for the Third Circuit. (Docket No. 93); see also United States v. Ciocan, 332 Fed. Appx. 773 (3d Cir. June 10, 2009)(not-precedential).
In his direct appeal, the Court of Appeals addressed Petitioner's contentions that (1) this Court erred in considering his foreign convictions in increasing his criminal history category, (2) he did not use "sophisticated means" for purposes of a guideline enhancement, (3) his plea agreement was not knowing and voluntary, and (4) that the Court violated Article 36(1)(b) of the Vienna Convention on Consular Relations and Optional Protocol on Disputes. Ciocan, 332 Fed. Appx. at 776. The Court of Appeals affirmed the Court's judgment and sentence. Id. In so ruling, the Third Circuit found that upon review of the entire record, including the Court's "extensive plea colloquy," Petitioner had knowingly and voluntarily pled guilty, despite his argument that his plea was not knowing and voluntary because the Court failed to apprise him of his rights to be represented by counsel at all stages of the proceedings and to compel the attendance of witnesses. Id. Of note, the appeals court held that this Court "adequately informed Ciocan of his rights, and Ciocan indicated that he understood them." Id.*fn2
Petitioner filed the pending pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 on February 8, 2010. (Docket No. 123). Petitioner claims that his sentence should be vacated, alleging that his counsel was ineffective, and the Court erred at sentencing in failing to grant him downward departures for exceptional remorse and pretrial conditions. (Id.). Subsequently, on February 9, 2010, the Court entered an Order pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999), advising Petitioner that all federal constitutional claims must be included in a single habeas corpus petition and of his right to: (1) withdraw the pending petition and file one new, all-inclusive § 2255 petition setting forth every ground which may entitle him to relief from the conviction and sentence, provided that such motion is filed within the one year statute of limitations; (2) amend the § 2255 petition presently on file with any additional claims or materials within 120 days; or (3) choose to have the petition ruled on as filed. (Docket No. 126). That same day, the Government filed a Motion to Dismiss the petition on the basis that Petitioner waived his right to file same in his plea agreement. (Docket No. 128).
Petitioner filed a response to the Court's February 9, 2010 Order with the Clerk of Court on March 10, 2010, asserting that he wished to proceed with his motion to vacate, as previously filed. (Criminal No. 07-398, Docket No. 33).*fn3 No further briefing has been received by the Court nor requested by the parties. Accordingly, ...