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United States of America v. Kevin Rankin


June 14, 2011


The opinion of the court was delivered by: Rufe, J.


Pending before the Court are Kevin J. Rankin's ("Petitioner" or "Defendant") Habeas Corpus Motions to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255*fn1 and the Government's Motion to Dismiss the same.*fn2


On October 25, 2005, a federal grand jury in the Eastern District of Pennsylvania returned an indictment charging Petitioner with two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) ("firearm possession case").*fn3 While the firearm possession case was pending, Petitioner was also indicted on January 16, 2007 by a separate federal grand jury in the Eastern District of Pennsylvania for one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371; three counts of making false statements to a federally insured financial institution in violation of 18 U.S.C. § 1014; one count of willful failure to file a tax return in violation of 26 U.S.C. § 7203; one count of willfulfailure to file tax returns in violation of 26 U.S.C. § 7203; and four counts of making or subscribing a false tax return in violation of 18 U.S.C. § 7206(1) ("fraud case").*fn4 Petitioner faced a total statutory maximum of 128 years imprisonment, a 5-year period of supervised release, a $2.6 million fine, a $1,025 special assessment, and restitution to the IRS of at least $247,000.*fn5 Petitioner's motion to sever trials on Counts One and Two in the firearm possession case was granted on July 23, 2007.*fn6 On July 25, 2007, a jury returned a guilty verdict on Count Two in the firearm possession case. As a jury waited in a separate courtroom to commence his trial on Count One, Petitioner chose to enter a change of plea for the remaining firearm (Count One) and for the fraud and tax-related charges pending against him, and entered into a written plea agreement with the Government.*fn7 At the time, Petitioner was represented by experienced criminal defense attorneys of his choice-Edwin Jacobs, Jr., Christopher Warren, and Robert Madden.

Under the terms of the plea agreement, Petitioner agreed "not to challenge the guilty verdict returned by the jury on July 25, 2007 in Criminal [Action] No. 05-615-1 . . . ."*fn8 In the agreement, Petitioner further agreed that, with very limited exceptions, he would neither appeal nor present any collateral challenge to his conviction or sentence. Specifically, the appellate waiver provision of the plea agreement stated that:

In exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law.*fn9 The only exceptions to this waiver were if the government filed an appeal, or if certain conditions were present such as:

(1) defendant's sentence on any count of conviction exceeds the statutory maximum for that count . . . ; (2) the sentencing judge erroneously departed upward pursuant to the Sentencing Guidelines; (3) the sentencing judge, exercising the Court's discretion pursuant to United States v. Booker, 125 S. Ct. 738 (2005), imposed an unreasonable sentence above the final Sentencing Guideline range determined by the Court.*fn10

In exchange for these waivers, the Government agreed that it would recommend to the Court that Petitioner receive a three-level downward adjustment pursuant to U.S.S.G. § 3E1.1(a) and (b) for Petitioner's timely acceptance of responsibility of his crimes and for assisting authorities in the investigation or prosecution of his own misconduct by timely notifying the Government of his intent to plead guilty and timely providing complete information about his own involvement in the offenses.*fn11 The plea agreement, as signed by Petitioner, also made it clear that it contained "no additional promises, agreements or understandings other than those set forth in this written guilty plea agreement, and that no additional promises, agreements or understandings [would] be entered into unless in writing and signed by the parties."*fn12 Additionally, the plea agreement stated that Petitioner was "satisfied with the legal representation provided by [his] lawyer; the defendant and [his] lawyer . . . fully discussed this plea agreement; and the defendant [was] agreeing to plead guilty because the defendant admits that he is guilty."*fn13 Petitioner signed a separate two-page Acknowledgment of Rights, the first paragraph of which stated his understanding that he has the right to "not have to plead guilty," and that "if [he] plead[s] guilty, [he will] have waived [his] right to appeal, except as set forth in the appellate waiver provisions of [his] plea agreement."*fn14

At Petitioner's July 26, 2007 Change of Plea hearing, at which Petitioner was represented by his three attorneys,*fn15 the Court conducted a full colloquy with Petitioner. During the colloquy, the Court reviewed with Petitioner, in great detail, the plea agreement to determine whether Petitioner was competent and capable of entering an informed plea, and to determine whether he knowingly, intelligently, and voluntarily gave up his rights to a trial by pleading guilty and entering into the underlying guilty plea agreement. The Court also explored whether the Petitioner understood the charges against him and the terms of the plea agreement.*fn16

The Court first extensively explored Petitioner's competence, asking whether he had ever taken any drugs, prescribed or otherwise, had ever received in-patient or out-patient treatment for chemical addiction, either drugs or alcohol, whether such treatment had ever been recommended to him or whether it was a component of Petitioner's prior probation, when the petitioner had last consumed alcohol and whether he had taken any drugs, prescribed or over-the-counter, in the last 24 hours.*fn17 Petitioner responded that he had never undergone treatment for drug or alcohol abuse, had taken only prescription drugs and only those for treatment of his heart condition, and, within the last 24 hours, had ingested prescription medications for that heart condition, aspirin and two glasses of wine but had stopped drinking at 6:00 p.m. the prior evening.*fn18 The Court further explored whether his prescription heart medications might affect his ability to understand the proceeding and the plea agreement:

The Court: So when you take this medication that you just listed for me, there's four prescription meds plus aspirin. You said you have had your medications in the last twenty-four hours, did you?

The Defendant: Yes, Your Honor, I took it last night.

The Court: When you take this medicine, does it affect your ability to understand what you are doing, or [affect] your comprehension in any way?

The Defendant: I don't think so.*fn19

In addition, the Court also asked Petitioner whether his hearing impairment affected his ability to understand or hear the proceedings:

The Court: Now, I know also, because I heard you testify in the trial - -was it Tuesday you testified that you wear hearing aids?

The Defendant: I do, Your Honor.

The Court: So can you hear me now?

The Defendant: I can, Your Honor.

The Court: Do you have any trouble understanding or hearing what I am asking of you?

The Defendant: I do not.*fn20

Petitioner also confirmed that he had been represented by his counsel of choice for a few years, had discussed the indictment and cases with them, and was satisfied with their representation.*fn21

The Court further explored with Petitioner his understanding of the appellate waiver provisions of the plea agreement. The Court first asked the Government to orally explain the terms of the plea agreement, including the provisions of the appeal waiver, on the Record:

Mr. Schwartz: We also have an appellate waiver. The parties agree - the defendant agrees that he will not appeal either his conviction in the trial or any other matters, including post sentencing appeals through a 2255, with a very limited carve out.

The defendant could appeal his sentence if the government was to appeal this Courts [sic] sentence. The defendant could also appeal his sentence if the government does not appeal, but if this Court was to sentence the defendant in excess of the statutory maximum of any of the particular counts, or if this Court was to erroneously depart upwards pursuant to the guidelines, or if this Court was to[,] exercising [its] discretion pursuant to Booker, impose an unreasonable sentence that is above the final guideline range determined by the Court.

If any of those conditions were to apply, the defendant would be able to appeal. Otherwise he waives his right to appeal any other matter.*fn22

After reviewing the essential terms of the plea agreement with Petitioner's counsel and counsel for the Government, the Court then entered into a colloquy with the Petitioner. Petitioner confirmed that he had reviewed, signed, and discussed the plea agreement with his counsel:

The Court: . . . . Are these essentially the terms of your plea agreement as you understand them to be?

The Defendant: Yes, Your Honor.

The Court: And did you review your plea agreement? The written plea agreement, did you read it?

The Defendant: I did, Your Honor.

The Court: Did you review that plea agreement with your attorneys? The Defendant: I did.

The Court: All of them on each case?

The Defendant: Yes.

The Court: All right. And did you sign the plea agreement?

The Defendant: I did, Your Honor, I did.*fn23

The Court also assured itself that Petitioner's plea was not the result of promises, assurances or terms associated with the agreement but not contained within the agreement or of any other improper factors:

The Court: . . . . And this plea agreement that was signed has attached to it a two page acknowledgment of rights form. Now, let me ask you this. Other than the promises contained in this plea agreement that we just reviewed together, is there any other promise made to you that's not disclosed in this record, that could have or did induce you to plead guilty?

The Defendant: No, Your Honor. . . . .

The Court: . . . Let me ask you, Mr. Rankin, did anyone make any threats to you in order to force you or induce you to plead guilty?

The Defendant: No, Your Honor.

The Court: So, in your mind, Mr. Rankin, are there any other terms of an agreement that [were] considered by you in any way, whether they were represented by the government, by one or more of your attorneys, by a sidekick, an[] employee, a relative, any information that convinced you you should plead guilty whether it's under duress, threat, intimidation, force, or assurances or promises? Other than what I know in writing? The Defendant: No, Your Honor.*fn24

Additionally, the Court assured itself that Defendant understood specifically the issues the Plea Agreement precluded him from challenging:

The Court: Do you understand that by pleading guilty you are giving up your right to challenge the indictments that were returned against you?

The Defendant: I do.

The Court: In the tax case --The Defendant: I do.

The Court: -- because you passed that right in the felon in possession case. Because you did litigate pretrial motions in that one already. But, you're also giving up your right to challenge the Grand Jury proceedings that obtained the indictments.

The Defendant: Yes, Your Honor.*fn25

The Court and Petitioner then reviewed the rights he was waiving, including his rights to proceed to trial, to participate in jury selection, to be presumed innocent and the Government's burden of proof at any trial, to confront witnesses, to testify or decline to testify without adverse inference, along with other related trial rights.*fn26 During that colloquy, when asked if Petitioner understood that were he to proceed to trial and be found guilty, he would have the right to appeal that verdict to the Court of Appeals for the Third Circuit, Petitioner said he did.*fn27 The Court then explored in detail whether Petitioner understood the scope of the appellate rights he was waiving under the plea agreement and the ramifications of the waiver:

The Court: Do you understand that the only grounds to appeal from a guilty plea would be if I imposed an illegal sentence, or there were error in the proceeding or sentencing proceeding?

The Defendant: I do, Your Honor.

The Court: And so, do you understand that by pleading guilty you give up your right to appeal from any conviction after trial?

The Defendant: I do, Your Honor.

The Court: Well, let's talk about what your appellate rights would be if you didn't have these waivers in your plea agreement. Normally you would have a right to appeal any sentence I would impose on you to the higher court, the Third Circuit Court of Appeals, which could then modify, set aside your sentence, or make me resentence you. Do you understand that?

The Defendant: I do, Your Honor.

The Court: The government has that same right of direct appeal. Do you understand that?

The Defendant: Yes.

The Court: You would also have a right to bring a later proceeding, such as a collateral attack by filing a petition that we call a habeas corpus motion, and you would file that petition in this Court, to either vacate, set aside, or correct your sentence. Do you understand that?

The Defendant: Yes, Your Honor.

The Court: Your guilty plea agreement today greatly limits those rights to appeal, and prevents you, by your agreement, from using any later proceedings, such as a collateral attack and habeas corpus to challenge either your conviction, your sentence, or any other matter. Are you clear on that?

The Defendant: Yes, Your Honor.

The Court: According to your plea agreement, and [the Government's attorney] already reviewed this on the record, but I'll do it one more time, on page ten you can only appeal from your sentence if the government appeals from the sentence in a direct appeal. Then you may file a direct appeal of your sentence. Is that clear?

The Defendant: I understand.

The Court: But, if the government does not file a direct appeal of the sentence, then you can only file a direct appeal on the following three claims.

One, if your sentence on any one count of conviction exceeds the statutory maximum for that amount. . . . Two, if I, as the sentencing Judge in your cases, make a mistake and depart upward from the applicable sentencing guideline ranges. Now, I will tell you the guidelines are advisory, they're not mandatory, so this would be a discretionary departure on my part. And if I do so erroneously you can appeal. Do you understand that?

The Defendant: I understand, You Honor.

The Court: And Third, if I[,] as the sentencing Judge, exercising my discretion again pursuant to United States versus Booker, which says that I sentence according to the sentencing statute, 18 United States Code, Section 3553[,] [i]f I impose an unreasonable sentence[,] that sentence being above the final sentencing guideline range, which we calculate and approve at the time of sentence. Do you understand that?

The Defendant: I do, Your Honor.

The Court: Do you have any questions about the waivers of your post conviction and appellate rights?

The Defendant: I do not, Your Honor.*fn28

After reviewing the elements of the charged crimes to which Petitioner was pleading guilty that day, the Court once again pointedly asked Petitioner: "Do you understand that by pleading guilty and waiving all the rights we've been discussing, you cannot later come to this or any Court and claim that your rights were violated or that you're not guilty? Do you understand that?"*fn29 Petitioner unequivocally replied: "I understand that."*fn30

Finally, before finding that Petitioner was competent and capable of entering an informed, knowing and competent plea,*fn31 the Court explored with Petitioner and counsel for both parties the voluntariness of Petitioner's plea:

The Court: Did anyone threaten you, coerce you, or force you in any way to plead guilty today?

The Defendant: No, Your Honor.

The Court: Has any other plea agreement been entered into this case, other than what we already talked about, stated on the record here?

The Defendant: No, Your Honor.

The Court: Has your decision then to change your plea to guilty in both cases, the firearms case and the tax case, the 2005 case and the 2007 case, has your decision to change your pleas from not guilty to guilty been made of your own free will?

The Defendant: Yes, Your Honor.

The Court: Having heard from me what your rights are if you plead not guilty and proceed to trial on the remaining charges, and what may occur if you plead guilty and proceed to sentencing at a later date, do you still wish to give up your rights to a trial and plead guilty, Mr. Rankin?

The Defendant: Yes, Your Honor.

The Court: Thank you. Do any counsel have any doubt as to Mr. Rankin's competence to enter this plea?

Mr. Schwartz: None from the government, Your Honor.

Mr. Warren: No doubt, Judge.

The Court: And are each counsel satisfied that Mr. Rankin's willingness to plead guilty is voluntary and made with full understanding of the nature of the charges, the maximum penalties provided by law . . . and of his legal rights to contest those charges?

Mr. Schwartz: That's correct, Your Honor.

Mr. Warren: We're satisfied, Judge.

The Court: And are each counsel satisfied that his plea is not based on any plea agreement, except those terms disclosed on this record?

Mr. Schwartz: That's correct, Your Honor.

Mr. Warren: We're satisfied, Judge.*fn32

At the end of the Change of Plea Hearing, Petitioner orally professed his plea of guilt to all pending Counts in open court.*fn33

Prior to the sentencing hearing scheduled for May 19, 2008, the Probation Office's Presentence Investigation Report calculated Petitioner's total offense level under the advisory Sentencing Guidelines to be 24 after a 3-level downward adjustment for Petitioner's acceptance of responsibility for the charged offenses and timely notification of his intent to plead guilty, pursuant to U.S.S.G. §§ 3E1.1(a) and (b). With a criminal history category of II, the advisory sentencing guideline range was 57--71 months.*fn34 Exercising its ultimate discretion, the Court sentenced Petitioner to serve concurrent terms of imprisonment of 36 months on each Count of conviction, five years' supervised release, a special assessment of $1,025, restitution of $216,293, and a $10,000 fine for all Counts in both criminal matters.

On July 29, 2009, Petitioner filed the pending Section 2255 motions alleging: (1) his guilty plea was involuntary because it was induced by ineffective assistance of his tax counsel and the Government's misrepresentations and that his waiver of appeal and trial rights was due to misrepresentations by the government; (2) he was denied effective assistance of counsel because he was not advised of his counsel's "personal difficulties and dependence," counsel failed to move to dismiss the complaint and indictment for violations of the Speedy Trial Act, failed to attack false allegations in the probable-cause affidavit, and failed to pursue plausible alternative defense strategies; (3) prosecutors engaged in misconduct by destroying and suppressing evidence, including newly discovered and exculpatory evidence, and by threatening and influencing witnesses;*fn35 (4) "unwarranted conduct" took place that "had a chilling effect" on proposed witnesses, defense counsel, jurors and spectators; and (5) Petitioner was actually innocent of the prior offenses that increased his criminal history score and of the charges in the 2005 and 2007 indictments.*fn36 On October 23, 2009, the Government filed a motion to dismiss

Petitioner's Section 2255 motion on grounds that Petitioner waived his rights to appeal or collaterally attack the sentence and/or pretrial rulings issued by the Court in the underlying criminal matters.


Criminal defendants can waive both constitutional and statutory rights, including the right to file a direct appeal or collaterally attack a sentence, so long as that waiver is knowing and voluntary.*fn37 When reviewing a motion to dismiss a Section 2255 Petition on grounds that a defendant waived the right to collateral review, Courts should consider: "(1) whether the waiver of the right to appeal [the] sentence was knowing and voluntary; (2) whether [any] specific exceptions set forth in the agreement prevents the enforcement of the waiver . . . ; and (3) whether enforcing the waiver would work a miscarriage of justice."*fn38

Turning to the first inquiry, Petitioner claims, without any supporting facts, that his Guilty Plea and appeal waiver were involuntary because they were induced by the ineffectiveness of his counsel and by misrepresentations made by the government. Petitioner's motion, however, provides no information as to howhis tax counsel was ineffective or what misrepresentations were made by the government that induced the plea and appeal waiver. And this Court's colloquy with Petitioner, who averred in open court that he had earned his juris doctor degree, belies his claims. First, the Court assured itself, through careful colloquy with Petitioner, that he could hear and understand the proceedings despite his hearing impairment, and was competent to enter the plea and participate in the plea hearing that day. And, as the record demonstrates, the Court, on two occasions during the Change of Plea Hearing, asked Petitioner whether his plea had been induced by anything not contained in the Guilty Plea Agreement or by threats or force, and Petitioner assured the Court that it had not. The Court also asked Plaintiff whether he had read, signed and reviewed the Plea Agreement with his three attorneys, and whether he was satisfied with their performance, and Petitioner assured the Court that he was. The Court also meticulously reviewed with Petitioner the appeal waiver provisions of the plea agreement, and Petitioner confirmed that he understood the specific provisions of the waiver, its breadth and the limited exceptions. The Court's determination that Petitioner knowingly and voluntarily entered into the plea agreement in general, and the appellate waiver provisions in particular, was based on its assessment of Petitioner's responses to the Court's inquiries. Additionally, the voluntariness of the appeal waiver is also confirmed by the fact that the Petitioner reaped substantial benefits from the plea agreement, such as a significant reduction in the calculation of the final advisory guidelines range.*fn39 Petitioner has alleged no facts that cause the Court to alter its conclusion that Petitioner entered into the Plea Agreement, including the appeal waiver, knowingly and voluntarily. Petitioner's conclusory assertion that his plea agreement was induced by unidentified misrepresentations by the Government and unidentified ineffective assistance of counsel cannot overcome the clear record evidence that Petitioner's waiver was knowing and voluntary.

Because Petitioner entered into the plea agreement and appeal waiver knowingly and voluntarily, the Court next considers whether the issues raised by Petitioner's Section 2255 motion are among the exceptions to the waiver.*fn40 Here, Petitioner does not challenge any sentencing issue excepted from the waiver in the Guilty Plea Agreement: The Government has not appealed the sentence, and Petitioner does not challenge his sentence on grounds that: (1) the sentence exceeds the statutory maximums; (2) the Court erroneously departed upward pursuant to the sentencing guidelines; or (3) the Court imposed an unreasonable sentence above the Sentencing Guidelines range. Nor could Petitioner challenge his sentence on these grounds since he was sentenced to a term of imprisonment below the applicable Guidelines range.

Having determined that Petitioner's appeal waiver was entered knowingly and voluntarily and that no waiver exceptions apply, the Court must next determine whether to enforce Petitioner's appeal waiver. The Court may entertain Petitioner's Section 2255 motion only if enforcing the waiver would work a miscarriage of justice.*fn41 The "miscarriage of justice" exception is narrow and applies only in extraordinary circumstances.*fn42 That term "connotes something grave and out of the ordinary,"*fn43 and courts should find such waivers unenforceable only "sparingly and without undue generosity."*fn44 Thus, a knowing and voluntary appeal waiver precludes appeal or collateral attack based both "debatable legal issues" as well as blatant legal error.*fn45

The Third Circuit has not delineated specific situations that give rise to a miscarriage of justice, directing instead that courts take a fact-specific approach and consider a range of factors to determine whether a waiver is unenforceable:

[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.*fn46

At all times, however, the guiding principle is whether enforcement works a miscarriage of justice.*fn47 To date, this Circuit has rarely found circumstances in which enforcement would result in a miscarriage of justice, such as where the defendant should have been permitted to withdraw the guilty plea,*fn48 and where the government breached its obligations under the plea agreement.*fn49

The Third Circuit has, however, identified certain ineffective assistance of counsel claims where enforcing an appeal waiver would work a miscarriage of justice: where a petitioner claims that ineffective assistance of counsel tainted the plea proceedings such that the waiver itself was the product of ineffectiveness;*fn50 where ineffectiveness prevented a defendant from understanding his plea agreement;*fn51 and where counsel failed to timely file an appeal raising an issue explicitly exempted from the waiver in the plea agreement.*fn52 Though the Third Circuit has not addressed whether allegations of counsel's ineffectiveness will, in all circumstances, invalidate a waiver,*fn53

district courts in this Circuit and other circuit courts have declined to find that claims of ineffective assistance of counsel unrelated to the plea process render a waiver unenforceable.*fn54

Here, Petitioner alleges that his counsel was ineffective for failing to: (1) move to dismiss the initial complaint and indictment on grounds that the Speedy Trial Act was violated; (2) challenge the false allegations contained in the probable cause affidavit; (3) to pursue alternative defense strategies; and (4) advise him of counsels' "personal difficulties and dependence." But Petitioner does not allege that any of these purported failings were in any way related to the plea agreement and waivers of appeal; thus his claims fall outside of the category of ineffective assistance claims for which a waiver may be deemed unenforceable. Further, this Court clearly explained to Petitioner that he was giving up all rights to challenge his indictment; and Petitioner asserted that he understood he was waiving those rights. Petitioner's bald assertions of ineffectiveness are unsupported by any factual averments as to how the Speedy Trial Act was violated and for which indicted offenses, what false allegations were made, what alternative defense strategies were available and why failure to pursue them rendered counsels' performance ineffective, and what personal difficulties and dependencies his attorneys had.*fn55 Finally, each of the alleged instances of ineffectiveness occurred prior to Petitioner's Guilty Plea Agreement and his colloquy with this Court, wherein he averred he was satisfied with his attorneys' performance. Accordingly, the Court finds no miscarriage of justice in enforcing the waiver and foreclosing Petitioner's habeas claims on these grounds.

Petitioner also asserts, however, that his guilty plea was induced by ineffective assistance of counsel, arguably raising a claim that falls within the category of appeals for which a waiver may be found unenforceable. But even where a petitioner claims that ineffectiveness tainted a plea agreement, a waiver does not become unenforceable unless the record demonstrates "'that the claim that the waiver was the result of ineffective assistance of counsel was meritorious.'"*fn56

Under Strickland v. Washington, Petitioner bears the burden of demonstrating that the performance of his attorney or attorneys was deficient and that Petitioner was prejudiced by that deficiency.*fn57 Thus, Petitioner must show that his attorneys' performance fell "below an objective standard of reasonableness, and that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different."*fn58 But there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound . . . strategy."*fn59 Applying this standard here, Petitioner cannot meet his burden to demonstrate any meritorious claim that the waiver was induced by ineffective assistance of counsel because Petitioner has alleged no facts whatsoever as to how counsel was ineffective or how any ineffectiveness induced his plea agreement. Appeal waivers would be meaningless if they were rendered unenforceable by purely conclusory allegations of ineffective assistance during negotiation of a plea agreement.

Petitioner also alleges (1) prosecutorial misconduct, claiming that the prosecutor suppressed and destroyed evidence, failed to produce exculpatory evidence, and threatened witnesses; (2) that he is not guilty of prior convictions that factored into his criminal history score and is innocent of the underlying offenses in this case; and (3) that the petit jury was unconstitutionally selected. Petitioner's claims fall within the broad scope of his knowing and voluntary appeal waiver.*fn60 As with Petitioner's ineffectiveness claims, Petitioner fails to make sufficient factual allegations supporting any of these claims.*fn61 Without more, none of them fall within the narrow scope of the miscarriage-of-justice exception to enforcement of appeal waivers: Petitioner has alleged no error at all, let alone grave errors or exceptional circumstances. Further, Petitioner stated in his colloquy with this Court that he understood that by pleading guilty, he could not appeal on grounds that he was actually innocent of the charges or that his constitutional rights were violated and could not challenge the jury verdict in the firearms case.

Accordingly, as demonstrated by the record in this matter, Petitioner knowingly and voluntarily waived his right to appeal and collaterally attack his sentence, and has set forth no facts from which this Court can find that enforcing the waiver would work a miscarriage of justice. The Court therefore finds that Petitioner's claims for collateral relief are foreclosed.*fn62

And because Petitioner has not made a substantial showing of the deprivation of a constitutional right,"*fn63 the Court also declines to issue a certificate of appealability.


For the foregoing reasons, the Court will deny Petitioner's Section 2255 Motion and grant the Government's Motion to Dismiss.

An appropriate Order follows.

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