TIMOTHY J. SAVAGE, J.
The defendant, Anthony Randall, has filed a pro se motion under 28 U.S.C. § 2255, alleging ineffectiveness of counsel during plea negotiations and post-sentencing. The government seeks dismissal of the motion, invoking the waiver of appellate rights in Randall’s plea agreement, which included a waiver of his right to collaterally attack his sentence. Randall counters that his guilty plea was not knowingly and voluntarily made.
Having presided over the defendant’s guilty plea colloquy and sentencing hearing, and after carefully reviewing his motion and holding an evidentiary hearing, I conclude that he knowingly and voluntarily waived his right to file a direct appeal, but not his right to collaterally attack his sentence. Therefore, I shall allow Randall to file a § 2255 motion and appoint counsel to represent him.
Randall was charged in an indictment with six counts of Hobbs Act robbery and two counts of using and carrying a firearm during a crime of violence. He entered a guilty plea to all counts pursuant to a written plea agreement under Fed. R. Crim. P. 11(c)(1)(C), in which he agreed that an appropriate sentence was thirty-two years imprisonment (the statutory mandatory minimum consecutive terms on the two gun counts) followed by a five-year term of supervised release.
The plea agreement contained a waiver of appellate rights. Randall reserved the right to appeal only if the government appealed, his sentence exceeded the statutory maximum, his sentence resulted from an erroneous upward departure from the sentencing guideline range, or his sentence was unreasonably above the applicable guideline range. The waiver included the right to pursue a collateral attack through a motion to vacate, set aside, or modify his conviction and/or sentence under 28 U.S.C. § 2255.
On May 20, 2008, Randall was sentenced to the agreed thirty-two years imprisonment. On April 27, 2009, almost one year after he was sentenced, Randall filed a pro se notice of appeal. The Third Circuit dismissed the appeal as untimely. At the same time, it remanded the case to determine whether the notice of appeal should be treated as a motion to vacate his sentence under 28 U.S.C. § 2255.
Converting Randall’s notice of appeal to a § 2255 motion, we held an evidentiary hearing. The government contends that Randall, by agreement, waived his right to file a § 2255 motion.
Randall testified that two days after his sentencing, he sent a letter to his counsel inquiring about the status of his appeal. Although the letter did not specifically instruct counsel to file a notice of appeal, its substance reflects that Randall had intended to appeal and believed an appeal had been filed. At least, the letter alerted counsel to her client’s desire to take an appeal.
Randall’s former attorney testified that she did not receive the letter he claims he sent her. She stated that if she had received the letter, she would have immediately conferred with her client at the Federal Detention Center (“FDC”) and would have advised him that his appellate rights were limited.
Significantly, although she personally did not receive the letter, counsel did not preclude the possibility that her office had received it. The office’s normal practice is to place mail in the addressee’s mail box and the attorney then puts it into the client’s file. She did not see Randall’s letter. Nor is it in her client’s file. Thus, given counsel’s acknowledgment that the letter may have been sent and received by her office, the question comes down to Randall’s credibility.
In an affidavit, Randall attested that on May 22, 2008, he had sent the letter inquiring as to the status of his appeal and noting that he had not heard from counsel since his sentencing. He further declared that he wrote follow-up letters to her on October 29 and December 27, 2008. In those two letters, he raised his concerns regarding the second § 924(c) count.
After the evidentiary hearing, we requested the Bureau of Prisons (“BOP”) to check its mail logs to determine what legal mail Randall had sent during his confinement there. In response, the BOP advised that the FDC Philadelphia staff was not recording outgoing inmate legal mail during the period of May 20 through July 21, 2008. Consequently, there is no record to confirm or contradict that Randall had sent the May 20, 2008 communication to his counsel.
On the other hand, Federal Correctional Institution, Ray Brook records revealed that Randall sent legal mail to his attorney in Philadelphia on October 30, 2008, and letters to the court and his counsel on April 27, 2009. These entries corroborate his affidavit with respect to those communications. Because those letters referred to the initial letter about his appeal and Randall did not know that the FDC would not have a record of that posting, we find ...