The opinion of the court was delivered by: Judge Nora Barry Fischer
This matter is before the Court on a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 ("Motion") filed by pro se Defendant Teddy V. Davis ("Defendant" or "Davis"). (Docket No. 195). Defendant seeks resentencing pursuant to § 2255 in light of United States v. Dixon, 648 F.3d 195 (3d Cir. 2011), and Dorsey v. United States, 132 S.Ct. 2321 (2012), which hold that the Fair Sentencing Act of 2010 ("FSA") applies to all defendants sentenced after its enactment date on August 3, 2010. (Id.). Defendant was sentenced after the enactment date of the FSA to a mandatory minimum of ten years under the prior version of 21 U.S.C. § 841(b)(1)(A)(iii), pursuant to a plea agreement with the Government. (Id.). Defendant admits that he agreed to waive his right to file a § 2255 motion but contends that the Court's sentence which did not account for the reduced penalties of the FSA resulted in a miscarriage of justice. (Id.). The Government agrees that the FSA should have applied to Defendant based on the Supreme Court's subsequent decision in Dorsey but opposes Defendant's Motion for two primary reasons. (Docket No. 201). The Government first asserts that Defendant's Motion is time-barred and second, contends that the collateral attack waiver in the plea agreement should be enforced. (Id.). Based on the following, the collateral attack waiver in Defendant's plea agreement will be enforced and, therefore, Defendant's Motion to Vacate  is DENIED.
II.FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On May 20, 2008, a federal grand jury returned a two-count indictment against Davis and two co-defendants, Eric D. Purnell and Darece N. Murphy, charging each with conspiracy to distribute and possess with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 846 (Count One) and possession with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 814(a)(1) and 841(b)(1)(A)(iii) (Count Two), for conduct occurring on October 13, 2007. (Docket No. 1). Both charges carried with them a statutory mandatory minimum penalty of ten years under the versions of the statutes at that time. See 21 U.S.C. §§ 814(a)(1) and 841(b)(1)(A)(iii) (2008). Defendant also had an extensive criminal history, including two prior convictions in 2000 and 2003 for possession with intent to distribute 50 grams or less of crack cocaine. (See Docket No. 170; Presentence Investigation Report ("PIR") at ¶ 24). Murphy pled guilty to Count One on September 24, 2008, (Docket No. 67), and was sentenced on January 23, 2009 to 120 months' incarceration, (Docket No. 82). Purnell pled guilty to Count One on November 12, 2009, (Docket No. 123) and was likewise sentenced to 120 months' incarceration on March 11, 2010, (Docket No. 135). Thus, both co-defendants received the statutory mandatory minimum sentence for their respective involvement in this case.
The FSA was enacted on August 3, 2010, reducing the statutory penalties for certain crack cocaine offenses. See FSA, Pub.L. No. 111-220,124 Stat. 2372 21 U.S.C. § 841 (2010). Relevant here, the quantity of crack cocaine necessary to invoke the 10-year statutory mandatory minimum sentence was increased from 50 grams of crack cocaine to 280 grams of crack cocaine. Id.
On December 28, 2010, pursuant to a written plea agreement with the Government, Defendant pled guilty to Count One of the Indictment. (Docket No. 166). As per the terms of the plea agreement, the Government sought dismissal of Count Two, but the Defendant still "acknowledge[d] his responsibility for the conduct charged." (Id. at ¶ (A)(2)). The parties stipulated that the amount of crack cocaine in this case was more than 112 grams. (Id. at ¶ (C)(2)). Further, the Government declined to pursue the career offender enhancement against Defendant and also agreed to forego the filing of an Information pursuant to 21 U.S.C. § 851, which would have the effect of increasing the applicable statutory penalties. (Id. at ¶ (B)(4)). If the career offender guideline applied, based on a base offense level of 34 and criminal history category of VI, the advisory guideline range was 262 to 327 months. (PSIR at ¶ 57). However, the Government's concessions in the plea agreement resulted in the Court's calculations of: an offense level of 27; a criminal history category of III; and, a significantly lower advisory guideline range of 87 to 108 months. (Docket No. 177 at 9). Nonetheless, the parties had agreed that the charged offense carried a statutory mandatory minimum of no less than ten years, making the advisory guideline range 120 months. See U.S.S.G. § 5G1.1(a).
The plea agreement contained certain waivers of appeal and a collateral attack waiver, which Defendant knowingly and voluntarily agreed to, specifically:
Teddy V. Davis waives the right to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, subject to the following exceptions:
a. If the United States appeals from the sentence, Teddy V. Davis may take a direct appeal from the sentence.
b. If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, Teddy V. Davis may take a direct appeal from the sentence.
Teddy V. Davis further waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any other collateral proceeding attacking his conviction or sentence. (Plea Agreement at ¶ (A)(6)). The plea agreement concludes, stating that "[t]his letter sets forth the full and complete terms and conditions of the agreement between Teddy V. Davis and the United States Attorney for the Western District of Pennsylvania, and there are no other agreements, promises, terms or conditions, express or implied." (Id. at 5). Further, Defendant asserted that:
I have received this letter from my attorney, Alonzo Burney, Esquire, have read it and discussed it with him, and I hereby accept it and acknowledge that it fully sets forth my agreement with the Office of the United States Attorney for the Western District of Pennsylvania. I affirm that there have been no additional promises or representations made to me by any agents or officials of the United States in connection with this matter. (Id.). The agreement is executed by Teddy V. Davis on 12/28/10 and signed as witnessed by: Alonzo Burney, Esquire, Counsel for Teddy V. Davis. (Id.).
A change-of-plea hearing was held before the undersigned on December 28, 2010. (Docket No. 166). During this hearing, the Court conducted its typical colloquy through which the Court directly questioned Defendant regarding the plea agreement, including whether he had: read the plea agreement; understood its contents; reviewed it with his counsel; asked his counsel any questions about the agreement and if his counsel had answered any such questions; and, affixed his signature to the final page. (Trans. Hr'g 12/28/10 at 13-15). Defendant answered affirmatively to all of the Court's questions. (Id.). Government counsel then read the salient terms of the plea agreement on the record, specifically stating that the Petitioner agreed to waive his right to file a motion to vacate sentence pursuant to 18 U.S.C. § 2255 and his right to take a direct ...