The opinion of the court was delivered by: Judge Conner
Presently before the court is the pro se motion (Doc. 1724) of defendant Pedro Rivera ("Rivera") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255,*fn1 and Rivera's motion (Doc. 1726) for leave to proceed in forma pauperis. In his § 2255 motion, Rivera contends that: (1) he received ineffective assistance of counsel in violation of his Sixth Amendment rights; and (2) the court committed sentencing errors.*fn2 In response, the government filed a motion (Doc. 1732) to dismiss Rivera's habeas petition, asserting that Rivera waived his right to appeal any conviction and sentence on direct or collateral appeal, including through a motion brought under 28 U.S.C. § 2255. For the reasons that follow, the court will grant the government's motion (Doc. 1732) to dismiss, grant Rivera's motion (Doc. 1726) to proceed in forma pauperis, and dismiss Rivera's motion (Doc. 1724) to vacate, set aside, or correct sentence.
I. Statement of Facts & Procedural History
On September 6, 2007, Rivera pled guilty to criminal conspiracy to distribute and possess with intent to distribute cocain hydrochloride, in violation of 21 U.S.C. § 846. (Doc. 531). Pursuant to a plea agreement (Doc. 472), Rivera waived indictment by a grand jury, and he pled guilty to a two-count felony information. (See Doc. 531). Rivera's plea agreement contained a broad waiver of appellate rights. (See Doc. 472 ¶ 38).
The court sentenced Rivera on November 24, 2009, to 100 months imprisonment, payment of a fine and fees of $2,100, and three years of supervised release. (Doc. 1509). On October 4, 2010, Rivera timely filed the instant motion (Doc. 1724) to vacate, set aside, or correct his sentence pursuant to28 U.S.C. § 2255, and a motion (Doc. 1726) for leave to proceed in forma pauperis. The government filed a motion (Doc. 1732) to dismiss Rivera's § 2255 motion on November 3, 2010. The motions have been fully briefed and are ripe for disposition.
II. Motion for Leave to Proceed in Forma Pauperis
Rivera seeks leave to proceed with his § 2255 motion in forma pauperis. (Doc. 1726). The federal in forma pauperis statute, 28 U.S.C. § 1915, "is designed to ensure that indigent litigants have meaningful access to the federal courts." Neitzke v. Williams, 490 U.S. 319, 324 (1989) (citation omitted). Leave to proceed in forma pauperis is based upon a showing of indigence. Deutsch v. United States, 67 F.3d 1080, 1085 n.5 (3d Cir. 1995) (citing Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 1990)). A petitioner seeking leave must file an affidavit of poverty with the court. A court may grant leave to proceed in forma pauperis if it is satisfied that the petitioner is without resources to pay the costs and fees of the proceeding. Id.
In his affidavit, Rivera states that he is currently unemployed, has not received any form of income within the past 12 months, nor does he own any real estate or any other valuable property. (See Doc. 1726). Based on these facts, the court finds that Rivera is without sufficient resources to pay the costs and fees of the proceeding. Accordingly, the court will grant Rivera's motion for leave to proceed in forma pauperis.
III. Motion to Vacate, Set Aside, or Correct Sentence
In his § 2255 motion, Rivera alleges that he received ineffective assistance of counsel, and that the court committed sentencing errors in its classification of Rivera as a career offender. (See Doc. 1725). The government moves to dismiss the motion, contending that Rivera waived his right to appeal his sentence under the terms of his plea agreement. (See Doc. 1732). Whether Rivera waived his right to appeal is a threshold issue that the court will address first.
It is well-settled that "[c]riminal defendants may waive both constitutional and statutory rights, provided they do so voluntarily and with knowledge of the nature and consequences of the waiver." United States v. Mabry, 536 F.3d 231, 236 (3d Cir. 2008). The right to appeal-a statutorily created right, see 18 U.S.C. § 3742- is among those rights which may be waived. Mabry, 536 F.3d at 236 (citing Jones v. Barnes, 463 U.S. 745, 751 (1983); see also United States v. Khattak, 273 F.3d 557, 561 (3d Cir. 2001). A defendant's waiver of appellate rights is enforceable if entered knowingly and voluntarily and enforcement does not effect a miscarriage of justice. See Mabry, 536 F.3d at 237. The court must, therefore, specifically examine whether the waiver was knowing and voluntary, and whether enforcement would cause a miscarriage of justice. Id.; see also United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001) ("Waivers of appeal, if entered into knowingly and voluntarily, are valid, unless they work a miscarriage of justice.").
In the instant matter, the record is replete with evidence that Rivera's appeal waiver was knowing and voluntary. The court first turns to the written guilty plea agreement. See United States v. Gwinnett, 483 F.3d 200, 203-04 (3d Cir. 2007) (examining written plea agreement). Paragraph thirty eight of Rivera's guilty plea agreement states:
Appeal Waiver. The defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the conviction and sentence imposed. Acknowledging all of this, the defendant knowingly waives the right to appeal any conviction and sentence, including a sentence imposed within the statutory maximum, on any and all grounds set forth in Title 18, United States Code, Section 3742 or any other grounds, constitutional or non-constitutional, including the manner in which that sentence was determined in light of United States v. Booker, 125 S. Ct. 738 (2005).
The defendant also waives the defendant's right to challenge any conviction or sentence or the manner in which the sentence was determined in any collateral proceeding, including but not limited to a motion brought under Title 28, United States Code, Section 2255. The defendant further acknowledges that this appeal waiver is binding only upon the defendant, and that the United States retains its right to appeal in this case. (Doc. 472 ¶ 38). The language of the written plea agreement is straightforward. The waiver agreement, broad in scope, clearly indicates that Rivera waived his right to appeal any conviction and sentence on any grounds, constitutional or statutory. Indeed, the plea agreement expressly delineates Rivera's waiver of the right to challenge his conviction in a collateral proceeding, includingthrough "a motion brought under Title 28, ...