The opinion of the court was delivered by: Savage, J.
The defendant, who pled guilty to conspiracy to distribute a controlled substance, Oxycotin*fn1 , has filed a pro se motion under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. He argues that his attorney did not provide him with discovery so that he could identify "favorable evidence" and move to suppress evidence, and failed to negotiate a plea agreement for a "recommended suitable sentence." He does not directly contest the validity of his guilty plea or the plea agreement. Nor does he question the appellate waiver. Casting his challenge as an ineffectiveness of counsel claim, he argues that his attorney's "deficient performance coerced [him] into a guilty plea."
The government seeks dismissal of the motion because the defendant waived his appellate rights, including the right to collaterally attack his sentence. In the alternative, the government argues that the defendant's claims are without merit because he has not shown that his attorney's performance was deficient and that he was prejudiced.
I conclude that the defendant knowingly and voluntarily waived the right to collaterally attack his sentence, and that upholding the waiver will not result in a miscarriage of justice. Even if there had been no valid waiver, the defendant's claim fails on the merits. Therefore, the defendant's motion must be denied.
The defendant was charged in a seven-count indictment on June 16, 2010. On January 4, 2011, pursuant to a written plea agreement, the defendant entered a guilty plea. The plea agreement contained a waiver of appellate rights, including a waiver of the right to pursue a collateral attack through a habeas motion to vacate, set aside or modify sentence under 28 U.S.C. § 2255. The defendant limited his right to appeal to three instances. He reserved the right to appeal only if the government appealed, his sentence exceeded the statutory maximum, or I unreasonably departed upward from the sentencing guideline range.
On June 8, 2011, the defendant was sentenced to 60 months imprisonment to be followed by three years of supervised release. On June 11, 2012, he filed his pro se motion under 28 U.S.C. § 2255.
Appellate waivers are valid and enforceable if entered knowingly and voluntarily, and enforcing them will not work a miscarriage of justice. United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001). A waiver of appeal includes relinquishing "the opportunity to challenge the sentence imposed, regardless of the merits." Id. at 561.
A waiver may be invalidated in the unusual circumstance where an error amounts to a miscarriage of justice. Id. at 561-62. Analyzing whether an appellate waiver should be set aside to avoid a potential miscarriage of justice, the court considers a number of factors. Id. at 563. Relevant factors include "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." Id.; United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001). While noting that it chose "not to earmark specific situations," the Khattak court stated that these factors are offered as "some guidelines," and emphasized that the governing standard is one of a "miscarriage of justice." Id. at 563.
Only where the defendant claims that the waiver itself was the result of counsel's ineffectiveness will courts decline to enforce an appellate waiver. United States v. White, 307 F.3d 336, 344 (5th Cir. 2002); Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001); United States v. Cockerham, 237 F.3d 1179, 1182 (10th Cir. 2001); DeRoo v. United States, 223 F.3d 919, 924 (8th Cir. 2000); United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1998). In other words, the only claim of counsel's ineffectiveness that a defendant who has executed a waiver can bring is one that his attorney was ineffective in negotiating the plea agreement with the waiver. Thus, all other ineffectiveness contentions are precluded by the waiver.
To ensure that an appellate waiver is knowing and voluntary, the judge must inform the defendant of the plea agreement provision waiving the right to appeal or collaterally attack a sentence, and determine that the defendant understands the waiver. Khattak, 273 F.3d at 560. The defendant was so advised during his guilty plea colloquy.
In his motion, the defendant does not contend that he entered the plea agreement unknowingly or that he did not understand the waiver. His contention is that he surrendered his desire to fight the charges because his attorney did not share the government's evidence with him, leaving him "unaware of any favorable evidence in [his] defense or suppress evidence." He also complains that his attorney failed to negotiate a better sentence.
At his guilty plea, the defendant was specifically advised of his appellate rights and his right to collaterally attack his sentence by a habeas petition. Change of Plea Hrg., Jan. 4, 2011, at 22-23. He acknowledged that he had these rights and was relinquishing them. He confirmed repeatedly that his decision to plead guilty was voluntary and he was pleading guilty of his own free will. Id. at 9-10. He also stated that he was satisfied with his attorney's representation. Id. At no time during the guilty plea colloquy or sentencing did he exhibit any reluctance to go forward or a lack of understanding of what he was giving up by pleading guilty. Prior to accepting the plea, I found that his willingness to enter a guilty plea was voluntary and he ...