The opinion of the court was delivered by: Joy Flowers Conti United States District Judge
Pending before the court is a motion to vacate, set aside, or correct sentence by a person in federal custody pursuant to 28 US.C. § 2255 (ECF No. 624)*fn1 filed by petitioner Freddie L. Miller ("Miller" or "petitioner"). Upon reviewing petitioner's motion and the government's response (ECF No. 639), the court will deny petitioner's motion for the reasons set forth herein.
On March 31, 2007, a federal grand jury returned an indictment charging petitioner with 1) one count of possessing with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(A)(iii) (count fifteen); 2) one count of possessing with intent to distribute less than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C); and 3) one count of possessing with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B)(iii). (ECF No. 15). On February 9, 2009, petitioner entered a plea of guilty to count fifteen of the indictment which charged petitioner with possessing with intent to distribute fifty grams or more of cocaine base. (ECF No. 384). On June 17, 2009, petitioner was sentenced to a term of imprisonment of 185 months followed by a term of supervised release of five years, no fine, and a special assessment of $100. (ECF No. 450). Upon the motion of the government, the other two charges were dismissed. On June 22, 2009, petitioner filed a notice of appeal of his sentence. (ECF No. 452). On May 18, 2010, the United States Court of Appeals for the Third Circuit granted the government's motion to enforce the appellate waiver by summary action and affirmed the judgment of this court. (ECF No. 566).
On or about March 23, 2011, the clerk of court received and filed petitioner's motion to vacate, set aside, or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255. In his motion, petitioner lists five grounds for his claim that he is being held in violation of the Constitution, laws or treaties of the United States and his prayer for relief that the court vacate, set aside, or correct his sentence. All five grounds are based upon claims of ineffective assistance of counsel during sentencing. The grounds include the following allegations: a) petitioner's counsel failed to challenge the government on the § 2D1.1(b)(1) guidelines enhancement; b) counsel failed to challenge petitioner's career offender classification; c) counsel failed to object to petitioner being sentenced outside the advisory guidelines; d) counsel failed to object to the court's failure to acknowledge the significant rights that petitioner was waiving by pleading guilty; and e) counsel failed to object to the alleged drug quantity attributed to petitioner.
On March 29, 2011, this court issued a notice that the motion to vacate had been filed and directed the government to file its response and a brief in opposition on or before May 9, 2011. On May 9, 2011, the government filed a motion for extension of time to file a response (ECF No. 626) and on June 8, 2011, this court granted the motion. On July 8, 2011, the government filed a motion for extension of time to file a response (ECF No. 627) and on July 12, 201, the court granted the motion directing the government to reply by August 10, 2011. On December 13, 2011, this court noted that the government's response was past due and ordered a response on or before December 27, 2011. On December 27, 2011, the government filed a motion for extension of time to respond (ECF No. 637) and on December 28, 2011, this court granted the motion directing the government to respond on or before December 30, 2011. On December 30, 2011, the government filed its response in opposition. (ECF No. 641). In the response, the government argues that petitioner's motion should be dismissed because he waived his right to attack collaterally his conviction, and he knowingly and voluntarily entered into the waiver. The government alternatively argues that petitioner's counsel was effective and that, even if counsel was ineffective, petitioner suffered no prejudice as a result.
Under 28 U.S.C. § 2255, a federal prisoner in custody may move the court which imposed the sentence to vacate, set aside or correct the sentence 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." 28 U.S.C. § 2255. The Supreme Court read the statute as stating four grounds upon which relief can be granted:
(1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence "is otherwise subject to collateral attack."
HARLES WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 625 (4 ed. 2011) (quoting Hill v. United States, 368 U.S. 424, 426-27 (1962)).
The statute provides as a remedy for a sentence imposed in violation of law that "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255.
A district court is required to hold an evidentiary hearing on a motion to vacate sentence filed pursuant to 28 U.S.C. § 2255, unless the motion and records of the case show conclusively that the movant is not entitled to relief. 28 U.S.C. § 2255 ("Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing hereon, determine the issues and make findings of fact and conclusions of law with respect thereto."); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005).
III. Petitioner's Waiver of Right to Collateral Review
Criminal defendants may waive the right to a collateral review of a sentence during the course of a plea agreement and guilty plea. See United States v. Mezzanatto, 513 U.S. 196, 201 (1995) ("A criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution"). These waivers are enforceable "provided that they are entered into knowingly and voluntarily and their enforcement does not work a miscarriage of justice." United States v. Mabry, 536 F.3d 231, 237 (3d Cir. 2008). Although "a defendant bears the burden of presenting an argument that would render his waiver unknowing or involuntary, a court has an affirmative duty both to examine the knowing and voluntary nature of the waiver and to assure itself that its enforcement works no miscarriage of justice." Id. at 237-38. When addressing whether the waiver was entered into knowingly and voluntarily, this court is to review the change-of-plea colloquy to ensure that the "court 'inform[ed] the defendant of, and determine[d] that the defendant underst[ood] . . . the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence' as Federal Rule of Criminal Procedure 11(b)(1)(N) requires." Id. at 239. This court is to use a "common sense approach" when looking at the underlying facts "in determining whether a miscarriage of justice would occur if the waiver were enforced." Id. at 242. The Court of Appeal for the Third Circuit endorsed the methodology of the Court of Appeals for the First Circuit, which suggested "the 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" as factors to consider before invalidating a waiver as involving a "miscarriage of justice." United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir.2001). At the same time, we have declined to identify a list of specific circumstances which would give rise to, or constitute, a miscarriage of justice.
Petitioner fails to establish that the waiver of his right to a collateral review should not be enforced by this court. Although "ʻthe language of [a] waiver, like the language of a contract, matters greatly' to [the] analysis, [United States v.] Goodson, 544 F.3d  at 535 [(3rd Cir. 2008)], and that such waivers must be 'strictly construed,' United States v. Khattak, 273 F.3d 557, 562 (3d Cir.2001)," this court deems the language in the plea agreement to constitute a sufficiently clear waiver of the right to a collateral review of a sentence.*fn2 United States v. Corso, 549 F.3d 921, 927 (3d Cir. 2008). The language contained in the plea agreement alone may be insufficient to ensure that petitioner knowingly and voluntarily waived his right to collateral review. See Corso, 549 F.3d at 930 (noting that "ʻ[t]he point of Rule 11(b)(1)(N) is that a signed piece of paper is not enough,'" and that district courts are charged with reviewing a plea agreement extensively with the defendant to ensure sufficient understanding of the consequences (quoting United States v. Sura, 511 F.3d 654, 662 (7th Cir. 2007))).
During the change of plea hearing held on February 9, 2009, petitioner acknowledged that he was able to speak and understand English. (ECF No. 468 at 3). He had a ninth grade education (id.), was not under the influence of drugs or alcoholic beverages (id. at 4), was not under the care of a physician or psychiatrist (id.), and understood what was happening at the hearing (id.). The court found petitioner was competent to plead. (Id.) Petitioner acknowledged that he understood he did not have to change his plea. (Id. at 5.) Petitioner acknowledged the minimum and maximum penalties of the offense. (Id. at 13.) The court asked:
THE COURT: Now, Mr. Miller, did you have an opportunity to read and discuss each of the provisions of the plea agreement with your lawyer before you signed the plea agreement?
THE DEFENDANT: Yes, I did.
THE COURT: Did you understand the terms? Do you have any questions about them?
THE DEFENDANT: No, ma'am. (ECF No. 468 at 15).
The prosecutor reviewed the terms of the plea including the waiver of petitioner's appeal and collateral attack rights:
MS. BOWDEN: The defendant has agreed to enter a plea of guilty to Count 15 of the indictment. He accepts and acknowledges his responsibility for the conduct charged in Counts 1, 20, and 21 and stipulates that the conduct charged in those counts may be considered by the probation office or by the Court in imposing sentence.
If the Court were to impose a fine as part of a sentence of incarceration, the defendant agrees to participate in the United States Bureau of Prisons Inmate Financial Responsibility Program through which 50 percent of his prison salary would be applied to pay the fine.
He's agreed to pay the $100 special assessment. He waives the right to seek post-conviction DNA testing of physical evidence and the right to preservation of such ...