The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before this Court is Petitioner Kareem Darby's ("Darby") pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion"). For the reasons set forth below, this Motion is denied.
Darby was charged by a federal grand jury with the following: one count of possession of five or more grams of cocaine base ("crack") in violation of 21 U.S.C. § 846 (a)(1); possession of a firearm in furtherance of a drug trafficking crime in violation of 21 U.S.C. § 924(c); and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922 (g)(1). On February 5, 2007, Darby appeared before this Court and entered a guilty plea. At that time, Darby agreed to the following factual basis to support the guilty plea:
[o]n August 8th of 2005, Mr. Darby was inadvertently released from State custody with approximately one year remaining on his sentence. Several attempts were made by the Philadelphia Sheriff's Department to contact Mr. Darby, to have him turn himself in. Although Darby was reached by telephone, he never turned himself in.
On August 22nd, 2005, the Honorable James Fitzgerald, III, issued a bench warrant for Mr. Darby's arrest. This fugitive case was assigned to the Philadelphia Sheriff's Deputies Eddie Velez and Ralph Lake.
On September 27, 2005, at approximately 4:00 a.m., Sheriff's Deputies Velez and Lake were conducting surveillance at 4066 Balwynne Park Road, the home of Carmella Carson. Carson was the girlfriend of Mr. Darby at the time.
At approximately 5:00 a.m., Mr. Darby was observed leaving the apartment through a rear door. Mr. Darby walked to a car parked behind the residence in a public driveway and opened the trunk.
At this time, Deputy Lake approached Mr. Darby and identified himself.
Mr. Darby looked at Lake and made a throwing motion toward the interior of the trunk. Lake was unable to see what Darby threw into the car. However, he heard a thud which he believed was consistent with a heavy object hitting the floor of the trunk. Mr. Darby then took off running leaving the trunk open. Both Lake and Velez gave chase.
As the deputies pursued Mr. Darby, he ran into a wooden area behind Ms. Carson's home. The deputies heard Darby yell as if he had injured himself. The deputies continued to search for Mr. Darby in the wooded area. Darby was located hiding under the brush in the wooded area. Darby was arrested and searched incident to his arrest by Deputy Velez. Velez located 97 packets of cocaine base, crack, inside of Darby's pocket. The total weight of the cocaine base, crack, was 8.092 grams. (N.T. 14-16, 2/5/07.)
Darby entered the plea pursuant to a written guilty plea agreement with the government. The parties agreed, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(c), that Darby should be sentenced to 120 months imprisonment for the offenses. Darby agreed that, with very little limited exceptions, he would neither appeal nor present any collateral challenge to his conviction or sentence.*fn1
On May 23, 2007, Darby filed two pro se Motions-- one for the withdrawal of his guilty plea and the second for the appointment of new counsel. On May 31, 2007, Darby's Motion for appointment of new counsel was granted.*fn2 On October 1, 2007, a hearing was held on the
Motion to withdraw the guilty plea. In a Memorandum Opinion dated November 16, 2007, we denied the Motion. See United States v. Darby, No. 06-220, 2007 WL 4081218, at *1 (E.D. Pa. Nov. 16, 2007). We held a sentencing hearing on December 4, 2007, and determined that the offense level under the advisory Sentencing Guidelines was 152 to 175 months imprisonment. Nonetheless, we imposed the parties' recommended sentence of 120 months imprisonment, and a term of supervised release of five years. On December 7, 2007, Darby appealed our denial of his Motion to Withdraw his guilty plea to the Third Circuit Court of Appeals, and on April 16, 2009, that Court affirmed ...