The opinion of the court was delivered by: Judge Conner
Presently before the court is Toney Sabater's motion (Doc. 52) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Sabater complains that he was prejudiced by ineffective assistance of counsel, in two respects. First, he claims that his counsel failed to properly investigate his case and conduct legal research before encouraging him to plead guilty. (See Doc. 53 at 6). Second, he contends that his counsel failed to fully explain the plea agreement to him. (See id. at 9). Sabater also argues that the court should reduce his sentence because one of his prior convictions, which enhanced his sentence for the instant offense, was vacated. (See id. at 13). In opposition to the pending motion, the government asserts that Sabater validly waived his rights to both direct and collateral appeals. (See Doc. 66 at 8). The government also contends that Sabater's claims do not constitute manifest injustice that would make Sabater's waiver unenforceable. (See id. at 8). For the reasons that follow, the court will deny Sabater's motion (Doc. 52).
I. Statement of Facts & Procedural History
A grand jury indictment, which was returned on November 2, 2005, charged Sabater with (1) criminal conspiracy to distribute and possess with intent to distribute 500 grams and more of cocaine hydrochloride, see 21 U.S.C. § 846, and (2) distribution and possession with intent to distribute 500 grams and more of cocaine hydrochloride, see 21 U.S.C. § 841(a)(1). Sabater pled not guilty to this indictment during an initial appearance on January 25, 2006.
On June 14, 2006, a superceding information was filed, charging Sabater with two counts of interstate travel "in aid of racketeering enterprises," see 18 U.S.C. § 1952(a)(3). On the same day, a plea agreement signed by Sabater was filed with the court, and it included a provision under which he waived his "right to appeal any conviction and sentence" and his "right to challenge any conviction or sentence [. . .] in any collateral proceeding, including but not limited to a motion brought under Title 28, United States Code, Section 2255." (Doc. 30 ¶ 32). The final provision of the agreement is an acknowledgment indicating that Sabater read the agreement, "carefully reviewed every part of it" with counsel, and that he "fully understand[s] it" and "voluntarily agree[s] to it." (See id. at 15-16). Sabater pled guilty to the superceding information on July 3, 2006.
At Sabater's change of plea hearing, while he was under oath, the court repeatedly questioned Sabater about his understanding of the plea agreement, including the specific provision limiting his right to appeal or bring a collateral attack, and whether his counsel had discussed it with him. Sabater gave affirmative responses to all such questions. Subsequently, the court sentenced Sabater to 115 months' imprisonment, 3 years' supervised released, a $500 fine, and a $200 special assessment. The Third Circuit affirmed the conviction and sentence, and the Supreme Court denied Sabater's petition for a writ of certiorari. Sabater now moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Sabater admits that he signed the plea agreement containing the appeal waiver. (Doc. 53 at 9). As previously noted, however, he alleges that he did not receive effective assistance of counsel, and he contends that the waiver was therefore invalid. He also argues that the court should resentence him because one of the state convictions which caused him to qualify as a career offender at his original sentencing has been vacated.
A criminal defendant can waive both the right to appeal and the right to bring a collateral attack, provided that the waiver is made voluntarily and knowingly-that is, "with knowledge of the nature and consequences of the waiver." U.S. v. Mabry, 536 F.3d 231, 236-37 (3d Cir. 2008). In addition to examining the knowing and voluntary nature of the waiver, the court must also consider whether enforcing the waiver would result in a miscarriage of justice. Id. at 237, 242-44.
A. Knowing and Voluntary Nature of the Waiver
The court will first consider whether defendant has waived his right to bring a collateral attack, such as a § 2255 motion. See U.S. v. Mabry, 536 F.3d 231, 236-39 (3d Cir. 2008). Sabater contends that, as a result of ineffective assistance of counsel, his waiver was not knowingly and voluntarily made. (Doc. 53 at 4). The Third Circuit has already determined that Sabater knowingly and voluntarily waived his right to a direct appeal, and he does not dispute this conclusion. He argues, however, that he has not properly waived his right to collateral review, including habeas corpus. (See Doc. 67 at 14-15). He also suggests that his affidavit presents new facts which distinguish the pending question from the issue that was previously presented to the Third Circuit.
It is Sabater's burden to "present an argument that would render his waiver unknowing or involuntary." Mabry, 536 F.3d at 237.*fn1 The allegations contained in Sabater's affidavit suggest that he did not knowingly and voluntarily waive his appeal rights.*fn2 However, these allegations are contradicted by his "[s]olemn declarations in open court[,]" which "carry a strong presumption of verity." Zilich v. Reid, 36 F.3d 317, 320 (3d Cir. 1994) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). They are also undercut by the written plea agreement, which Sabater had opportunity to review, and the in-court colloquy (see Doc. 48 at 9-10, 16-17); see also United States v. Sabater, 270 F. App'x 219, 220-21 (3d Cir. 2008) (summarizing the evidence that Sabater's right to appeal was voluntarily, knowingly, and intelligently waived). During the colloquy, the court asked Sabater numerous questions about his understanding of the plea agreement, including the waiver provision in particular, and the court afforded Sabater the opportunity to ask questions about the waiver provision or any other provision of the agreement. (Doc. 48 at 9-10, 16-17). In light of the overwhelming evidence that Sabater's waiver was knowingly and voluntarily made, the allegations contained in his affidavit are not sufficient to persuade the court to the contrary.
B. Miscarriage of Justice
The court must also examine whether enforcement of the waiver would give rise to a miscarriage of justice. Rather than "earmark[ing] specific situations" in which waivers of appeals should be invalidated, the Third Circuit has directed courts to consider the following factors before concluding that a waiver is invalid: "[t]he clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), 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." United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001) (quoting United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001)). The court must also "look to the underlying facts to determine whether a miscarriage of justice would be worked by enforcing the waiver." Mabry, 536 F.3d at 243. Sabater presents two grounds on which the court could ...