The opinion of the court was delivered by: Judge Munley
Before the court is Dorothy Robinson's (hereafter "Robinson's") motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. (Doc. 1386). Having been briefed, the matter is ripe for consideration.
On September 27, 2007, a grand jury in the United States District Court for the Middle District of Pennsylvania returned a 26-count indictment against a number of defendants related to a conspiracy to distribute cocaine and cocaine base within 1,000 feet of protected zones, including public housing and playgrounds. (Doc. 1). Robinson was named as a defendant in the conspiracy charge and specifically charged in count 21, possession with the intent to distribute and distribution within 1,000 feet of public housing. (Id.)
On October 2, 2007, Robinson entered a plea of "not guilty." (Doc. 34). Three superceding indictments were filed, each asserting the same charges against Robinson. (Docs. 101, 154, 435). Robinson entered a plea of "not guilty" to the third superceding indictment. (Doc. 497).
On September 1, 2009, a non-jury trial commenced against Robinson before the Honorable Thomas I. Vanaskie. Robinson was represented by Attorney Joseph O'Brien. On the third day of trial, Robinson withdrew her plea of not guilty and pled guilty to count 21 of the third superceding indictment. (Doc. 940). She entered into a binding plea agreement pursuant to Federal Rules of Criminal Procedure 11(c)(1)(C), which imposed a term of incarceration of 216 months. (Doc. 1392, Ex. 1, Plea Agreem. ¶ 11). The plea agreement contained the following 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. (Id. ¶ 24).
The court conducted a change of plea colloquy, Robinson was administered an oath and the court explained that she was required to truthfully answer each question. (Doc. 948, Change of Plea Tr. at 3). Robinson stated that she understood the instructions. (Id.) In reviewing her plea agreement, the court noted the appeal waiver:
THE COURT: Now, during the course of this proceeding you've expressed dissatisfaction with the representation you've received from Mr. O'Brien. But as we proceed with this plea, do you understand that you may be giving up any right to challenge the effectiveness of counsel?
THE DEFENDANT: No, I didn't understand that.
THE COURT: All right. Well, I better explain that then. As I understand the plea agreement, correct me if I'm wrong, counsel, the plea agreement includes a waiver of the right to appeal or the right to file a Section 2255 motion.
THE DEFENDANT: I didn't read that in there.
THE DEFENDANT: Is that in there?
THE COURT: You better review that, yeah.
THE DEFENDANT: He was rushing me so I didn't read it.
THE COURT: It's paragraph 24 on page 13. Here, I'll hand it down to you. I have a copy here. That might be the copy. I had a ...