United States District Court, Western District of Pennsylvania
OPINION AND ORDER
Donetta W. Ambrose, Senior Judge
In this matter, Defendant pleaded guilty to violations of 21 U.S.C. § 846 and § 924. On February 18, 2012, he was sentenced to a term of imprisonment of 200 months. His plea agreement included a waiver of collateral attack. Presently before the Court is Defendant’s counseled Motion pursuant to 28 U.S.C.§ 2255. Defendant contends that his waiver was invalid because it was unknowing, and that its enforcement would result in a miscarriage of justice.
I. APPLICABLE STANDARDS
A. 28 U.S.C. § 2255
Relief is available under Section 2255 only under exceptional circumstances, when the claimed errors of law are "a fundamental defect which inherently results in a complete miscarriage of justice, " or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed. 2D 417 (1962). A district court need not hold an evidentiary hearing on a Section 2255 motion if the motion, files, and records show conclusively that the defendant is not entitled to relief. United States v.Ritter, 93 Fed.Appx. 402 (3d Cir. 2004). Under these standards, a hearing is unnecessary in this case, and the Motion will be disposed of on the record.
A. ENFORCEABILITY OF COLLATERAL ATTACK WAIVERS GENERALLY
I first address Defendant’s general argument that a waiver of collateral attack rights in a plea agreement should not be enforced. Defendant suggests that no criminal defendant can ever properly waive the right to collateral attack, because it involves waiving unknown, future rights or errors – such as those violated or made by counsel or the Court during sentencing. Defendant also points out that his waiver of the right to collateral attack was unequivocal and limitless, as opposed to his waiver of the right to appeal, which he retained the right to invoke under certain circumstances. In support of his argument, Defendant invokes the recent NACDL Ethics Advisory Committee Formal Opinion 12-02 (Oct. 2012), which opined that waivers of ineffective assistance claims in a plea agreement present ethical problems for defense counsel and prosecutors alike. See also PBA Legal Ethics and Professional Responsibility Committee Formal Opinion 2014-100.
Generally, in this Circuit, waivers of the right to collateral attack are valid if entered into knowingly and voluntarily, and will divest the district court of jurisdiction over a collateral attack. United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001); United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008). Although the attorney ethics surrounding such waivers have recently been called into question, our Court of Appeals has since affirmed their enforceability of as a legal matter. E.g., Muller v. Sauers, 523 Fed.Appx. 110, 111-12 (3d Cir. 2013). Khattak, which rejected an argument similar to that which Defendant now advances, remains in force in this Circuit generally, and in the collateral attack context specifically. See, e.g., United States v. Murray, 483 Fed.Appx. 690 (3d Cir. 2012). As the above-referenced Ethics Opinion acknowledges, the Advisory Committee’s position is “aside from whether the courts might approve such waivers.” Ethics Advisory Opinions are not binding on federal courts. Although our Court of Appeals may someday declare collateral attack waivers per se invalid in light of the ethical dilemmas they present, it has not done so to date. Cf. United States v. Grimes, 739 F.3d 125 (3d Cir. 2014). Absent guidance from our appellate court, I am unwilling to arrive at such a rule.
B. ENFORCEABILITY OF DEFENDANT’S WAIVER
I next address Defendant’s contention that his particular waiver is invalid due to ineffective assistance of counsel. Defendant contends that counsel advised him that he would receive a ten year sentence if he accepted the plea; and that he was not informed by counsel that he could accept responsibility for his involvement in a conspiracy, but still challenge the weight assigned thereto.
Claims challenging the voluntariness of a collateral attack waiver, or the effectiveness of counsel with respect to the waiver itself, may survive the waiver. United States v. Whitaker, No. 02-90-03, 2005 U.S. Dist. LEXIS 23884, at **5-6 (E.D. Pa. Oct. 18, 2005). Similarly, courts will consider an ineffectiveness claim that relates directly to the negotiation of the waiver itself. United States v. Fagan, No. 04-2176, 2004 U.S. Dist. LEXIS 22456, at **9-11 (E.D. Pa. Oct. 4, 2004). In this context, however, it is important to note Supreme Court’s observation that "the representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any ...