The opinion of the court was delivered by: Conti, District Judge.
Pending before the court is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (the "§ 2255 Motion") (Docket No. 85) filed by petitioner,*fn1 Robert Davies ("petitioner" or "Davies"), a motion for appointment of counsel for any § 2255 Motion proceedings (Docket No. 99), and a motion for release from sentence and stay of supervised release pending the § 2255 Motion decision (Docket No. 101). After reviewing the Motion, petitioner's plea agreement (the "Plea Agreement") (sealed at Docket No. 62), the transcript of the hearing on petitioner's change of plea (Docket No. 98), the transcript of the hearing on petitioner's sentencing (Docket No. 84), and the submissions of the government (Docket No. 96) and petitioner (Docket Nos. 86 and 100), the court will deny petitioner's motion because the record shows clearly that petitioner voluntarily waived his right to attack collaterally his sentence. As a result, petitioner's motions to appoint counsel and for release from sentence and stay of supervised release pending the § 2255 Motion decision will be denied as moot.
On November 28, 2007, the government filed a criminal complaint (the "Complaint') (Docket No. 1) in the United States District Court for the Western District of Pennsylvania, charging Davies with knowingly traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with another person, in violation of 18 U.S.C. §§2423(b) and (e), on or about November 4, 2007. An affidavit of a Federal Bureau of Investigation (the "FBI") special agent, Gregory J. Craig ("Agent Craig"), which was attached as an exhibit to the Complaint, stated, in part:
3. On or about November 5, 2007, Special Agent Gregory J. Craig was contacted by the City of Washington Police Department in Pennsylvania. Lt. Dan Stanek of Washington Police Department relayed that an individual named Robert Richard Davies, age 32, was arrested in Pennsylvania in connection with an interstate, "traveler" child exploitation investigation.
4. The investigation began on November 4, 2007, when Cecil Township Police Officer Richard Egizio was on patrol at approximately 12:45 AM. In the course of responding to another call, Officer Egizio noticed a vehicle pulled off on the side of Klinger Road, with three individuals standing outside. After responding to the other call, Officer Egizio returned to Klinger Road and checked on the vehicle, which he had deemed suspicious. The driver of the car was identified as Robert Davies of Conneaut, Ohio, and the two passengers were minor female children, aged 14 and 15 years old, who reside in the City of Washington, Pennsylvania. The minor children claimed to have met Davies that very evening and further explained that Davies had told them he was 19 years old, despite his actual age of 32 years. (Craig Aff. 2, Nov. 28, 2007) (Docket 1-1.)
On December 14, 2007, petitioner made an appearance before a magistrate judge, who noted that petitioner was detained by a district judge in the Northern District of Ohio. (Docket No. 7). A federal public defender was appointed to represent petitioner. (Docket No. 9.)
Following a preliminary examination on December 17, 2007, a magistrate judge found probable cause existed to support a finding that petitioner committed the offense. (Docket No. 12.) The next day, a federal grand jury returned a one-count indictment charging petitioner with knowingly traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with another person, as defined in 18 U.S.C. § 2423(f)(1), in violation of 18 U.S.C. §§ 2423 (b) and (e). (Docket No. 14.) On December 27, 2007, petitioner was arraigned before a magistrate judge and entered a plea of not guilty. (Docket No. 20.)
In October 2008, Attorney Komron J. Maknoon ("Maknoon") entered a notice of attorney appearance for petitioner in this case. (Docket No. 35.) At petitioner's change of plea hearing held on May 27,*fn2 2009, the Plea Agreement, which was signed by Davies and Maknoon (Docket No. 62), was entered as an exhibit to be maintained under seal*fn3 by the court. At that hearing, petitioner entered a plea of guilty to count one of the indictment at criminal number 07-436.
On June 3, 2010, petitioner filed a motion for release and stay of supervised release pending resolution of his 28 U.S.C. § 2255 Motion.
During Davies' change of plea hearing, he testified under oath that the prosecutor accurately portrayed the underlying factual background when asked by the court to review the government's evidence with respect to count 1. (Change of Plea Hr'g Tr. 32, May 27, 2009.) The prosecutor stated:
If we had a trial we would show that the investigation began on November 4th of 2007. Cecil Township Police Richard Egizio was on patrol. It was approximately 12:45 a.m. He was responding to another call, and he noticed at that time a vehicle pulled off the side of Klinger Road with three individuals standing outside that car. He went on and responded to that call, but took note of that car, and on return, he went to the Klinger Road location and checked on that car, because he had deemed it suspicious.
The driver of the car was identified as Robert Davies of Conneaut, Ohio. The two passengers were minor female children, age 14 and 15, who reside in the city of Washington, Pennsylvania. The minor children claimed to have met Mr. Davies that very evening, and they further explained that he had told them that he was 19 years old, despite his actual age of 32 years.
After being transported to the Cecil Township Police station, the minors' parents were contacted, and the minors were interviewed in greater detail. The minors reported that while they were both at the home of the 14-year-old, they had been using the computer to talk to, to guys, and that's in quotes, on a pre-teen chat site. The 14-year-old primarily engaged in chatting, although the 15-year-old was also present. The. [sic]
[In] [t]he course of the chatting, they encountered an individual who identified himself on screen as, true 2 - - that's the number two - - self, and nasty man for sluts, who was later determined to be Davies. They furthered this discussion on Yahoo chat.
The minors claim to have provided their correct ages, and the individual that they chatted with said he was a 19-year-old male from Pittsburgh. The discussion became sexual. Mr. Davies asked questions about the sexual experience of the 14-year-old girl. According to the minors, Mr. Davies asked if he could see what they looked like, and in response, the 14-year-old sent three photos of herself that were clothed, and directed him to her MySpace site so he could see the photograph of the 15-year-old.
According to the minors, Davies sent three photographs of himself via the computer, none sexually explicit.
In the course of instant messaging, Mr. Davies obtained the home telephone number of the 14-year-old. According to the minors, Mr. Davies called her home telephone, and they talked for approximately ten minutes. This has been corroborated with phone records. The 14-year-old estimated that the phone call took place at approximately 7:30 to 8:00 p.m. on November 3rd.
Mr. Davies asked further sexual questions, including whether the two minors would engage in a threesome, and he asked whether he could pick them up. Via the Internet, he asked whether the 14- year-old would, quote, wear something sexy, end quote, when he picked them up, and what color, quote, thong and bra you got on, and, maybe you will let me see it, end quote.
According to the 14-year-old, it was approximately 11:30 p.m. when she received a call from Davies, who said he was in Washington, PA near a Wendy's restaurant. The minor gave him directions to her house, and she had previously provided her address during the computer chat.
Shortly thereafter, Mr. Davies arrived at her home, where she resides with her grandmother. The minor snuck out of the house, and they got into Mr. Davies' car.
The driving time from Conneaut, Ohio to Washington, Pennsylvania is approximately three hours. The 14-year-old suggested, consistent with previous sexually explicit chats, that they travel to a horse farm in Cecil Township, Pennsylvania. While they were looking at horses, Officer Egizio drove by, and that's what prompted the detention and arrest of Mr. Davies.
After interviewing those minors, Washington police officer John Yankosec traveled to the home of the 14-year-old in order to obtain her computer, by consent from her guardian, her grandmother. When the officers prepared to seize the computer, the contents of the computer screen displayed the sexually explicit chat that had gone on between Davies and the 14-year-old, including their sexually graphic discussion about horses and other animals.
In the chat, for example, Mr. Davies inquires of the minor whether she ever made a horse ejaculate, and other animal-focused sexual talk.
On November 4th, 2007, after midnight sometime, Mr. Davies made a statement to Officer John Yankosec at the Washington Police Department. He admitted to conversing with the minors on a computer on pre-teen sites, and eventually to Yahoo instant messaging. He did not deny that the content of the chats was sexual, explaining it was just a way to know somebody. He admitted to traveling from his home in Ohio, and he also admitted to talking to the minors on the telephone.
According to the minors, as corroborated by Mr. Davies, no sexual conduct had actually taken place here in Pennsylvania as of the time of his arrest.
That, in summary, your Honor, along with some other forensic and documentary evidence, would be what we'd present at trial. (Id. at 28-32.)
Pursuant to the Plea Agreement petitioner agreed, among other things, that he would: 1) plead guilty to count of the indictment charging him with knowingly traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with another person, as defined in 18 U.S.C. § 2423(f)(1), in violation of 1Title 8 U.S.C. §§ 2423 (b) and (e); 2) assist law enforcement in investigating violations of state and federal laws from 2005 until the present and provide evidence concerning crimes of violence, including child sexual assault; 3) provide all documents and physical evidence within his possession concerning the investigation; 4) submit to a polygraph examination if asked to so do; 5) testify, if requested; 6) forfeit to the United States all property subject to forfeiture under 18 U.S.C. § 2253(a)(3), including a Dell XPS 400 desktop computer, a Dell Dimension desktop computer, a Seagate external hard drive, and related storage media; 7) register as a convicted sex offender under the law of any state where he resides, is employed, carries on a vocation, or is a student; 8) waive the right to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3741, subject to three exceptions*fn4 (Plea Agm't ¶¶ A.1, 2, 5-8, 11); and 9) waive "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." (Id. ¶ A.12.)
The United States Attorney agreed, among other things: 1) not use against Davies any information or evidence provided by him in the course of his assistance in the investigation; 2) move that the court reduce the offense level by three levels for Davies' acceptance of responsibility and timely notification to the government of his intention to enter a plea of guilty; 3) timely move to advise the court, if appropriate, of Davies' substantial assistance to law enforcement authorities in the investigation or prosecution of other persons; 4) and, in the event that a term of imprisonment was imposed upon Davies, recommend that he be placed in a secure institution. (Id. ¶¶ B.1, 3, 4, 6.)
Davies and the government (the "parties") agreed that the maximum penalties that may be imposed upon Davies with respect to count one were: a term of imprisonment of not more than thirty years; a fine of $250,000; a term of supervised release of at least five years and up to life; and a special assessment under 18 U.S.C. § 3013 of $100.00. (Id. ¶ C.1.(a)-(d).) The parties stipulated that: 1) the applicable sentencing guideline provision is United States Sentencing Commission § 2G1.3; 2) the base offense level shall be twenty-four; 3) a two-level increase applies because the offense involved a knowing misrepresentation of petitioner's identity; 4) a two-level increase applies because the offense involved the use of a computer to persuade, induce, or entice a minor to engage in sexually prohibited conduct; and 5) after a three-level reduction for petitioner's acceptance of responsibility, the resulting offense level is twenty-five. (Id. ¶ C.2.)
B. Change of Plea Hearing
During his change of plea hearing in open court, petitioner informed the court that he wished to change the not guilty plea he previously entered at count one of the indictment at criminal number 07-436 to a plea of guilty. (Change of Plea Hr'g Tr. 2.) The court informed petitioner that before the court accepted petitioner's guilty plea, the court would ask petitioner a number of questions to assure the petitioner's guilty plea was valid. (Id.) The court requested petitioner to tell the court if he did not understand any of the questions or at any time wished to consult with his attorney, since it was essential to a valid plea that petitioner understand each question before he answered. (Id.)
Petitioner informed the court that he was thirty-three years old, completed high school and some college, and spoke and understood English. (Id. at 3.) Petitioner informed the court that his medication and alcohol consumption within the last twenty-four hours was limited to his taking of anti-psychotic and anti-depressant medication, which did not impair his ability to understand anything but actually helped him function. (Id. at 4.) Petitioner indicated that he understood that he was in court for the purpose of waiving his right to a jury trial and entering a guilty plea. (Id. at 5.)
After Maknoon and the prosecutor each stated that neither had any doubt about petitioner's competence to plea at that time, the court found Davies competent to plead. (Id.) Davies affirmed on the record that he had ample time and opportunity to discuss the case with his attorney. (Id.) The court asked petitioner:
THE COURT: Are you fully satisfied with the counsel, representation, and advice given to you in this case by your attorney, Mr. Maknoon.
THE DEFENDANT: Yes, I am.
THE COURT: Mr. Davies, do you understand that you have the right to plead not guilty to any charge against you, and to persist or continue in the not guilty plea?
THE DEFENDANT: Yes, I understand.
THE COURT: In other words, do you understand that you do not have to change your plea?
THE DEFENDANT: I understand.
THE COURT: Do you understand, if you would continue to plead not guilty and do not change your plea, you would have the right to trial by jury?
THE DEFENDANT: I understand that. (Id. at 5-6.)
The court asked petitioner whether he understood that if he continued to plead not guilty he had numerous rights, including, but not limited to:
1) plead not guilty and persist in that plea, 2) have an attorney provided at all phases of the processing of the charge at no cost to him if he could not afford an attorney, 3) have a speedy trial by a judge and jury on the charge against him contained in the indictment at criminal number 07-436, 4) petitioner's presumption of innocence at trial, 5) petitioner not having to prove his innocence, 6) the government having to prove his guilt by competent evidence beyond a reasonable doubt before petitioner could be found guilty, 7) a unanimous jury verdict in order to find petitioner guilty on the charge against him, 8) participate in jury selection, 9) call witnesses, 10) testify or not testify at trial, and 11) a jury trial. (Id. at 6-9.) Petitioner answered that he understood each of those rights. The court asked petitioner:
THE COURT: Mr. Davies, having discussed your rights with you, do you still wish to plead guilty?"
THE DEFENDANT: Yes, I do.
Petitioner affirmed that he discussed with his attorney the charge in the indictment to which he intended to plead guilty. The court asked Davies:
THE COURT: Do you understand that you are charged in Count 1 of the indictment with travel with intent to engage in illicit sexual conduct on or about November 3rd, 2007, in violation of Title 18, United States Code, Sections 2423 (b) and (e)?
THE DEFENDANT: I understand.
The court confirmed that petitioner understood that the United States Sentencing Guidelines promulgated by the United States Sentencing Commission are advisory and are one of the factors the court would consider in determining petitioner's actual sentence. (Id.)
The court asked petitioner if he discussed with his attorney how the sentencing guidelines might apply in petitioner's case. (Id. at 11.) Petitioner responded, "Yes, I have." (Id.) Petitioner acknowledged that he understood that the court would not be able to determine the guideline range for his case until after the presentence report had been prepared and he and the government had an opportunity to challenge the reported facts. (Id.) The court asked petitioner if he understood that the sentence imposed may be different than the guideline range his attorney had discussed with him. Petitioner responded, "I understand that." (Id.)
Petitioner testified that he understood that he may have the right to appeal any sentence imposed by the court, unless he had waived that right by agreement. (Id. at 12.) Petitioner also affirmed that he understood that "if the sentence imposed is more severe, meaning greater, than [he] expect[ed], [he] will still be bound by [his] guilty plea and will not be able to withdraw it[.]" (Id.)
The court explained to petitioner that the maximum penalties to count one are a term of imprisonment of not more than thirty years, a fine of $250,000, and a term of supervised release up to life. (Id. at 13.) Petitioner acknowledged to the court that he understood that he may be required to forfeit certain property to the government as part of his sentence. (Id.) Petitioner affirmed that he understood that if the court accepted his guilty plea, he would be adjudged guilty of a sex offense. (Id. at 14.) With respect to whether ...