The opinion of the court was delivered by: Stengel, J.
On July 24, 2008, a federal grand jury returned a fifty-six count superceding indictment charging Concetta Jackson and her two co-defendants with use of a minor to produce visual depictions of sexually explicit conduct in violation of 18 U.S.C. § 2251(a)(1).*fn1 Specifically, Miss Jackson was charged in thirty of those counts. On September 2, 2008, pursuant to a carefully negotiated written plea agreement with the government, Miss Jackson entered a guilty plea to Count 46s. She agreed that, with limited exceptions, she would neither appeal nor present any collateral challenge to her conviction or sentence. Upon the government's motion, I dismissed the remaining counts against Miss Jackson at sentencing. Miss Jackson then filed an appeal which she claimed was not barred by the waiver due to a "clear" violation of the Ex Post Facto Clause*fn2 amounting to a miscarriage of justice. She specifically requested that the Third Circuit not abrogate her plea agreement with the government, asserting that her agreement remained "valid and enforceable." She instead chose to attack only one provision of that agreement, the sentencing guidelines that were used to calculate her sentencing range. The Third Circuit Court of Appeals rejected that argument, granted the government's Motion to Enforce the Appellate Waiver, and affirmed the judgment of this court.
Again, notwithstanding her waiver, Miss Jackson has collaterally challenged her sentence in the form of a motion to vacate, set aside, or correct it pursuant to 28 U.S.C. § 2255. The claim she brings here is similar to the claim brought on appeal and rejected by the Third Circuit except this one is couched as an ineffective assistance of counsel claim. She alleges that trial counsel was ineffective for failing to object to the application of a version of the Sentencing Guidelines which was not yet in effect during the timeframe of the conduct charged in Count 46s. In response, the government filed a motion to dismiss the petition, arguing that the waiver should be upheld and her petition dismissed. For the following reasons, I will grant the government's motion in its entirety, and dismiss the petition.
In February 2006, detectives from the Delaware County District Attorney's Office executed search warrants at the home that Co-Defendant Worman shared with his mother in Colwyn, and at the home he shared with Defendant Jackson in Collingdale, Pennsylvania. The police seized numerous computers, hard drives, DVD's, CD's, Polaroid pictures and VHS tapes that had been hidden throughout both of the houses and in Mr. Worman's vehicle. A subsequent forensics examination of the evidence revealed 1.2 million images stored on the computers and hard drives, including hundreds of video clips and images that depict at least four minors as they used the bathroom, undressed, and showered at the Collingdale house he shared with Miss Jackson. Investigators learned that Mr. Worman had installed a video camera in the bathroom wall of that home, and that Miss Jackson permitted him to film the children in exchange for him paying the rent on the house.
The investigation also revealed that Miss Jackson advertised her baby-sitting services, and took in children that she babysat in her home. She then permitted Mr. Worman to take the female infants upstairs to their bedroom, outside of her supervision. Investigators found images of Mr. Worman having sexual contact with these infants, one as young as three months, saved on Mr. Worman's computers. Miss Jackson admitted to the police that she had turned supervision of the female infants that had been entrusted to her care over to Mr. Worman. This was done at a time when she was well aware of Mr. Worman's involvement with children and with the taping of the other four minors in this case.
Miss Jackson is entitled to relief only if her custody or sentence violates federal law or the Constitution of the United States. Title 28 of the United States Code, Section 2255 provides, in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255. Section 2255 permits habeas relief for an error of law or fact constituting a "fundamental defect which inherently results in a complete miscarriage of justice." United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004)(citing United States v. Addonizio, 442 U.S. 178, 184 (1979)). In considering this motion, the court "must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005).
A district court is given discretion in determining whether to hold an evidentiary hearing on a habeas petition under Section 2255. See Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In exercising that discretion, the court must first determine whether the habeas petitioner's claims, if proven, would entitle her to relief, and then consider whether an evidentiary hearing is needed to determine the truth of the allegations. See Gov't of the V. I. v. Weatherwax, 20 F.3d 572, 574 (3d Cir. 1994). Accordingly, a district court may summarily dismiss a motion brought under Section 2255 without a hearing where the "motion, files, and records, 'show conclusively that the movant is not entitled to relief.'" United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (quoting United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992)); see also Forte, 865 F.2d at 62.
I note that Miss Jackson filed this petition pro se. Pro se pleadings are traditionally construed quite liberally. However, a pro se petitioner is not excused from the duty to prove a "set of facts in support of her claim which would entitle her to relief." Haines v. Kerner, 404 U.S. 519, 521 (1972).
On September 2, 2008, pursuant to a written plea agreement with the government, Miss Jackson pled guilty to Count Forty-Six of the superseding indictment which charged her with use of a minor to produce depictions of sexually explicit conduct in violation of 18 U.S.C. § 2251(a)(1), and with aiding and abetting in violation of 18 U.S.C. § 2.*fn3 This charge arose from her participation and role in assisting Mr. Worman in the manufacturing of child pornography, i.e., the videotaping of him sexually abusing "Ka.B.," a female infant of just 10 months of age. As part of that agreement, Miss Jackson agreed that, with limited ...