The opinion of the court was delivered by: McLaughlin, J.
Lawrence Mendte, a newscaster at KYW, pled guilty on August 22, 2008, pursuant to a plea agreement, to an information charging him with one count of violating 18 U.S.C. §§ 1030(a)(2)(C) and 1030(c)(2)(B) by breaking into the private e-mail accounts of Alycia Lane, another newscaster at KYW. He was sentenced on November 24, 2008, to three years probation, a $5,000 fine, and a $100 special assessment. Two conditions of probation were that the defendant spend six months in home confinement with electronic monitoring and perform 250 hours of community service.
After Mr. Mendte served his six months of home confinement and completed his community service, he filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 in which he seeks specific performance of an alleged agreement by the government to charge him with a misdemeanor, instead of a felony, or, in the alternative, the vacating of his sentence and underlying guilty plea.
The government has filed a motion to dismiss the motion on the ground that the defendant signed a plea agreement in which he expressly waived all rights to appeal or to collaterally attack his conviction, sentence, or any other matter relating to the prosecution. The language of the plea agreement is clear as to its purpose and effect to bind Mr. Mendte and the government to its provisions. The language from paragraph 10 of the plea agreement states that Mr. Mendte waived his right to appeal his conviction or sentence, subject to specific exceptions that are not present here, and that he waived his right to collaterally attack his conviction and sentence by way of a § 2255 motion (or otherwise).*fn1
The United States Court of Appeals for the Third Circuit has held that a collateral waiver provision contained in a plea agreement is enforceable if it (1) was knowing and voluntary, and (2) does not work a miscarriage of justice. United States v. Mabry, 536 F.3d 231, 237 (3d Cir. 2008). This waiver is enforceable unless Mr. Mendte establishes that his waiver was not knowing or voluntary or that upholding the waiver would constitute a "miscarriage of justice."
The Court conducted a detailed plea colloquy with the defendant who was under oath. Early in the colloquy, the Court questioned Mr. Mendte about his relationship with his counsel.
THE COURT: And have you retained Mr. Schwartz, who's seated next to you as your counsel?
MR. MENDTE: I have, Your Honor.
THE COURT: Have you had a sufficient opportunity to discuss your case with Mr. Schwartz?
MR. MENDTE: Yes, I have, Your Honor.
THE COURT: Are you satisfied with Mr. Schwartz's representation of you?
MR. MENDTE: I am, Your Honor.
Hr'g Tr. 6:23-7:6, Aug. 22, 2008.
After an oral recitation of the essential terms of the plea agreement by the government to which the defendant agreed, id. at 11:10-12:13, the Court asked to see the signed plea agreement and questioned the defendant about it.
THE COURT: Mr. Mendte, I'm looking at a document that has the caption of your case on it, and it's entitled "guilty plea agreement." It is six pages. On the sixth page there are four signatures, one of which appears to be yours as well as the signature of Mr. Schwartz, Ms. Hoffa and Mr. Levy from the United States Attorney's Office. Sir, is that your signature?
THE COURT: And therefore, did you sign this document?
THE COURT: Did you read it before you ...