The opinion of the court was delivered by: Sean J. McLaughlin United States District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendant Tommie Dunlap's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. In his motion, Dunlap alleges that his conviction and sentence should be vacated because his attorney failed to file a direct appeal despite Dunlap's request to do so. For the reasons which follow, the motion will be dismissed.
On March 10, 2009, Dunlap was indicted by a grand jury and charged with possession with intent to distribute and distribution of fifty or more grams of crack cocaine in violation of Title 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(iii). See United States v. Dunlap, 1:09-cr-12-SJM-1 (W.D. Pa filed March 10, 2009). On September 30, 2009, Dunlap entered a plea of guilt pursuant to a written plea agreement. Paragraph A(4) of the plea agreement stated that Dunlap "waive[d] the right to take a direct appeal from his conviction or sentence" and "waive[d] 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." See Dunlap Plea Agreement, ¶ A(4). The appellate waiver provision also contained two limited exceptions (neither of which are applicable here). Id. The agreement concluded with a paragraph in which Dunlap, by signing, averred that he had read and discussed the plea agreement with his attorney. (Id. at p. 6).
On January 11, 2010, Dunlap was sentenced to 140 months incarceration and five years of supervised release. On April 9, 2010, Dunlap filed a pro se notice of appeal nunc pro tunc which was dismissed by the Third Circuit on August 30, 2010, as untimely filed.
On August 9, 2010, Dunlap filed the instant motion to vacate judgment. The government filed a response in opposition on September 17, 2010. This matter is ripe for review.
Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside or correct a sentence "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." 28 U.S.C. § 2255. When a motion is made under 28 U.S.C. § 2255, the question of whether to order a hearing is committed to the sound discretion of the district court. In exercising that discretion, the court must accept the truth of the petitioner's factual allegations unless they are clearly frivolous on the basis of the existing record. United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). Further, the court must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the petitioner is not entitled to relief. Id. Upon consideration of Dunlap's motion for relief, the government's response thereto, and the pleadings and documents of record, I conclude that no hearing is necessary because Dunlap has waived his right to file a collateral attack of his sentence.
In his motion, Dunlap argues that his attorney rendered ineffective assistance by failing to file a requested direct appeal. He cites the well-established principle that an attorney "who disregards his client's explicit instructions to appeal renders ineffective assistance." Hodge v. United States, 554 F.3d 372, 379 (3rd Cir. 2009) (citing Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)). The government responds that Dunlap's motion should be dismissed for lack of subject matter jurisdiction because he waived his right to file a direct appeal and to collateral review in his plea agreement.
It is well-settled that an appellate and habeas corpus waiver provision in a plea agreement must be enforced, if entered into voluntarily and knowingly, unless to do so would work a miscarriage of justice. United States v. Mabry, 536 F.3d 231, 236-37; United States v. Khattak, 273 F.3d 557, 558 (3rd Cir. 2001). When a petitioner raises a challenge to the validity of an appellate waiver, the court has an "affirmative duty both to examine the knowing and voluntary nature of the waiver and to assure itself that its enforcement works no miscarriage of justice." Mabry, 536 F.3d at 237. A waiver is knowing and voluntary if the plea colloquoy "inform[s] the defendant of, and determine[s] that the defendant understands, the . . . terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence." Federal Rule of Criminal Procedure 11(b)(1)(N); Mabry, 536 F.3d at 238-39. In determining whether a miscarriage of justice would occur if an otherwise valid waiver were enforced, the Third Circuit has suggested the following flexible factors for consideration:
[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, ...