OPINION AND ORDER

SHIRA A. SCHEINDLIN, U.S.D.J.

Pro se petitioner Jason Jimenez moves to vacate, set aside or correct his federal sentence pursuant to 28 U.S.C. § 2255 ("section 2255"), and he requests an evidentiary hearing Petitioner has also filed an Amendment supplementing his petition. See Motion to Amend 28 U.S.C. § 2255 Petition Pursuant to Rule 15(a).

On November 10, 1999, petitioner pled guilty, pursuant to a plea agreement, to conspiracy to distribute over 150 grams of crack cocaine and was sentenced on February 7, 2000. Jimenez now argues that the sentencing court violated his constitutional rights as delineated inApprendi v. New Jersey, 530 U.S. 466 (2000), by failing to prove the quality and quantity of the drugs he conspired to distribute beyond a reasonable doubt. He further argues that his counsel was ineffective in advising him to accept the plea agreement and in not contesting the quality and quantity of the drugs.

The Government opposes the motion, arguing that petitioner's motion is procedurally barred, that petitioner waived his right to attack his conviction under section 2255, that petitioner's counsel was not ineffective, and that Apprendi does not apply to petitioner's case.

I. BACKGROUND

A. The Charge

Jimenez was charged with conspiring to "distribute and possess with intent to distribute a controlled substance, to wit, 50 grams and more of mixtures and substances containing a detectable amount of cocaine base, in a form commonly known as "crack," in violation of Sections 812, 841 (a)(1) and 841(b)(1)(A) of Title 21, United States Code." Indictment 99 CR 984 (SAS) ("Indictment"), Ex. A to Memorandum of Law in Opposition to Jason Jimenez's Petition to Vacate, Set Aside, or Correct a Sentence ("Opp. Mem."), at 2.

B. The Plea Agreement

On November 10, 1999, Jimenez signed a plea agreement negotiated by his counsel1 and the United States Attorney's Office for the Southern District of New York. See 11/4/99 Letter to David Gordon, defendant' s attorney, from Assistant United States Attorney Stephanos Bibas ("Plea Agreement"), Ex. B to Opp. Mem., at 7. Jimenez agreed to plead guilty to Count One of the Indictment charging him with conspiring to distribute narcotics. See id. at 1. He further agreed "to allocute in his plea of guilty to participating with others in a conspiracy to sell at least 150 grams of cocaine base in a form commonly known as crack, as well as marijuana, in the vicinity of the George Washington Houses near East 102nd Street in Manhattan." Id. Jimenez also agreed to "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated Sentencing range" of 151 to 188 months. Id. at 4. In consideration of his guilty plea, the Government agreed to accept his plea to Count One in full satisfaction of all charges arising out of petitioner's criminal activity relating to his involvement in the conspiracy. The Government further agreed not to oppose a three-level reduction in offense level based on petitioner's acceptance of responsibility. See id. at 1-2.

C. Jimenez's Allocution

On November 10, 1999, Jimenez pled guilty to "agreeing with others to sell at least 150 grams of crack cocaine as well as some marijuana near the George Washington Houses." 11/2/00 Transcript of Guilty Plea, before Honorable Sharon E. Grubin ("Plea Hearing"), Ex. C to Opp. Mem., at 2. In the sworn allocution before the Magistrate Judge, Jimenez admitted that "[M]e and other people got together, agreed on selling drugs at the George Washington Houses, crack cocaine." Id. at 7. When asked by the court how much crack cocaine he was involved in selling, Jirnenez admitted to "[a]t least 150" grams. Id. at 8.

When the Magistrate Judge asked Jimenez if he had seen and understood the Plea Agreement, he answered in the affirmative. See Id. at 3-7. Jimenez told the Magistrate Judge that no one had made any threats or promises to influence his plea. §See id at 4. The Magistrate Judge then asked if petitioner understood that he was giving up his right to a jury trial and his right to appeal his guilty plea, and whether he understood the Sentencing Guidelines and the mandatory minimum sentence applicable to his crime. Jimenez again responded in the affirmative. See id. at 6— 7. The Magistrate Judge summed up the allocution, stating that "(the plea] is knowing and voluntary and there is a factual basis for it and he understands the consequences of it." Id. at 12.

D. The Sentencing

On February 7, 2000, Jimenez was sentenced to 120 months imprisonment to be followed by five years of supervised release and a $100 special assessment. See 2/7/2000 Transcript of Sentencing ("Sentencing Hearing"), Ex. D to Opp. Mem., at 45. This Court determined that the base offense level for Jimenez's offense was 34 pursuant to United States Sentencing Guidelines ("U.S.S.G.") section 2D1(c)(3). See id. at 38-39. However, no upward role adjustment for a supervisory role was imposed. Finally, the offense level was reduced to 31 in consideration of Jimenez' s acceptance of responsibility. See id. at 39, 40. Because Jimenez had only one prior conviction for the criminal possession of marijuana when he was 19 years old, he fell in Criminal History Category I. See id. at 40. As a result, the Sentencing Guidelines range for Jimenez was 108— 135 months imprisonment. See id. Because the statutory mandatory minimum sentence for Jimenez's offense was 10 years, Jimenez was sentenced to 120 months imprisonment, the lowest sentence possible. See id; see also 21 U.S.C. § 841 (b)(1)(A).

During sentencing, neither petitioner nor his counsel objected to the determination that Jimenez conspired to distribute 150 grams of crack cocaine. See. e.g., Sentencing Hearing at 35, 36, 40. After specifically asking petitioner whether he understood the pre-sentencing report and had any objections, see id. at 38, this Court noted that "[h]e does not deny dealing in crack, [or] a quantity of crack that requires the Guideline calculations that I have made, and that requires the imposition of the mandatory minimum." Id. at 44.

II. DISCUSSION

A. Jimenez's Petition is Procedurally Barred

Under section 2255, relief is available "for a constitutional error, a lack of jurisdiction, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Graziano v. United States, 83 F.3d 587, 589— 90 (2d Cir. 1996) (internal quotation marks and citations omitted). However, it is well established that section 2255 relief is generally not available where petitioner has failed to raise the underlying claims on direct appeal. "[W]e have long and consistently affirmed that a collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165 (1982); see also Bousley v. United States, 523 U.S. 614, 621 (1998); United States v. Addonizio, 442 U.S. 178, 184— 85 (1979); Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998);United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998). Here, Jimenez did not object to his guilty plea, the nature of the narcotics, the quantity of the narcotics, or the sentence imposed at the time of the Plea Hearing, the Sentencing Bearing, or on appeal. Both this Court and the Magistrate Judge repeated in detail the elements and consequences of Jirnenez's guilty plea and gave petitioner the opportunity to voice any objections he might have had. See Plea Hearing at 3— 7; Sentencing Hearing at 38, 44. Both petitioner and his attorney consistently offered no objection.

Courts have, however, recognized a limited exception to this procedural bar. "Where a criminal defendant has procedurally forfeited his claim by failing to raise it on direct review, the claim may be raised in a § 2255 motion only if the defendant can demonstrate either: (1) cause for failing to raise the issue, and prejudice resulting therefrom, or (2) actual innocence." Rosario, 164 F.3d at 732 (internal citations omitted); see also Bousley, 523 U.S. at 621; Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993). It appears that Jimenez intends his ineffective assistance of counsel claim to serve as cause for his failure to raise these issues both at the district court level and on direct review. Petitioner presumes prejudice based on his sentence. As petitioner's ineffective assistance claim lacks merit, see infra Part II.C, and because petitioner has not offered any proof of actual innocence his habeas claim is procedurally barred.

B. Petitioner's Waiver was Knowing and Voluntary

Assuming, arguendo, that petitioner's claim was not procedurally barred, it would nonetheless be dismissed as he has waived the right to file a section 2255 motion. The Second Circuit has repeatedly recognized that both direct appeals and collateral attacks under section 2255 may be waived as part of a plea agreement. See, e.g., United States v. Garcia, 166 F.3d 519, 521 (2d Cir. 1999) (direct appeals); United States v. Rosa, 123 F.3d 94, 97 (2d Cir. 1997) (direct appeals); United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995) (section 2255 rights).

In no circumstances . . . may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement. Such a remedy would render the plea bargaining process and the resulting agreement meaningless.

According to the Plea Agreement, Jimenez agreed to "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated Sentencing range" of 151 to 188 months. Plea Agreement at 4. During the allocution, the Magistrate Judge asked Jimenez:

Do you understand also if you had a trial and you were found guilty you would have the right to appeal to a higher court, but after today you'll have no right to appeal your guilty plea. You can never withdraw it. Do you understand that?

Plea Hearing at 6. Petitioner responded that he did. See id. The Magistrate Judge then asked Jimenez if his plea was voluntary, and Jimenez again responded in the affirmative. See id. at 4. Petitioner' s waiver is therefore deemed "knowing" and "voluntary." As Jimenez was sentenced to 120 months inprisonment, a sentence below the range stipulated in the Plea Agreement, his waiver bars the instant motion.

C. Petitioner's Counsel Was Not Ineffective

A waiver may not be valid, however, where a defendant's counsel was ineffective. Ineffective counsel undermines the "knowing" and "voluntary" nature of the waiver. See Moore v. United States, No. 00 Civ. 4560, 2001 WL 253432, at *17 (S.D.N Y Mar. 15, 2001)."[A] plea agreement containing a waiver of the right to appeal is not enforceable where the defendant claims that the plea agreement was entered into without effective assistance of counsel." United States v. Hernandez, 242 F.3d 110, 112— 13 (2d Cir. 2001) (citing United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998)). "The rationale is that "the very product of the alleged ineffectiveness' cannot fairly be used to bar a claim of ineffective assistance of counsel." Hernandez, 242 F.3d at 110 (quoting Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999)). Ineffectiveness of counsel can also be used to show cause for not having directly appealed a defendant's sentence. See Coleman v. Thompson, 501 U.S. 722, 725 (1991)

To prevail on a claim of ineffective assistance of counsel, a defendant must: (1) show that counsel's representation fell below "an objective standard of reasonableness" under "prevailing norms' of practice," and (2) "affirmatively prove prejudice" by showing that there is a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 693— 94 (1984). The Supreme Court has further explained that "judicial scrutiny of counsel's performance must be highly deferential" and that courts must "indulge a strong presumption that, under the circumstances, the challenged action "might be considered sound trial strategy.'" Id. at 689.

Petitioner asserts that his counsel was ineffective in advising him to accept the Plea Agreement. See Petitioner's Memorandum of Law in Support of Motion to Amend ("Pet. Amend Mem."). According to Jimenez, counsel should have contested the nature and quantity of the drugs in question. Petitioner contends that under the Supreme Court's ruling in Apprendi v. New Jersey, sentencing factors, including the quantity of drugs he conspired to sell and whether the drugs were "crack" or some other form of "cocaine base," must be proven beyond reasonable doubt. He thus asserts that his counsel was ineffective in failing to apprise him of these constitutional rights.

The first prong of the Strickland test requires a showing that counsel's strategy failed to meet "an objective standard of reasonableness." Under the Plea Agreement, Jimenez received a three-level downward departure in his offense level. He also received a promise from the Government that it would drop all other charges against him arising out of his participation in the conspiracy. Courts have refused to find ineffective assistance of counsel in cases where defendants have received tangible benefits from the plea agreements negotiated by counsel. See. e.g., United States v. Fashewe, 152 F.3d 921 (2d Cir. 1998); Panuccio v. Kelly, 927 F.2d 106, 109 (2d Cir. 1998); Damian v. United States, No. 99 Civ. 4439, 1999 WL 39534, at *3 (S.D.N.Y Jan. 28, 1999); Tobon v. United States, 132 F. Supp.2d 164 (S.D.N.Y. 2001). Given the deference to counsel dictated by Strickland, counsel's advice to petitioner to accept the Plea Agreement cannot be deemed objectively unreasonable.

Furthermore, counsel's failure to demand a test of the drugs was neither objectively unreasonable nor prejudicial. Jimenez does not contend that the drugs he conspired to distribute were cocaine powder; rather, Jimenez contends that the drugs were a "cocaine base" not necessarily "crack cocaine." Petitioner contends that in order to meet the statutory and Sentencing Guidelines definition of "crack cocaine," the substance in question must contain both cocaine hydrochloride and sodium bicarbonate. See Petitioner's Memorandum of Law in Support of Motion Pursuant to 28 U.S.C. § 2255 ("Pet. Mem.") at 5-6; Pet. Amend Mem. at 1. This is simply not the case.

The ambiguity surrounding the drug definitions of the federal statute dictating the ten-year mandatory minimum sentence for crack cocaine has created considerable confusion over the definition of "crack." See, e.g., Sanders v. United States, 237 F.3d 184 (2d Cir. 2001); United States v. Diaz, 176 F.3d 52 (2d Cir. 1999); United States v. James, 78 F.3d 851 (3d Cir. 1996); United States v. Palacio, 4 F.3d 150 (2d Cir. 1993); United States v. Jackson, 968 F.2d 158 (2d Cir. 1992). Title 21 U.S.C. § 841 ("section 841") dictates a "term of imprisonment which may not be less than ten years or more or life" for violations involving "50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base." 21 U.S.C. § 841 (b)(1)(A) (iii). The Sentencing Guidelines note that "'[c]ocaine base,' for the purposes of this guideline means "crack.' 'Crack' is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form." U.S.S.G. § 2D1.1 (c) note D. Petitioner argues that the drugs involved in his case may have been merely cocaine hydrochloride without sodium bicarbonate and that the mandatory minimum should only apply where the presence of sodium bicarbonate has been proven beyond a reasonable doubt. According to petitioner, his counsel was ineffective for not demanding that the drugs be chemically tested.

Jimenez's argument must fail. First, despite the confusion over exact definitions, courts in this circuit have consistently held "that in proving a substance is crack, the government is not required to show that the cocaine was processed with sodium bicarbonate." United States v. Diaz, 176 F.3d at 119. Furthermore, "proof of the presence of sodium bicarbonate is not necessary to show that a substance is crack cocaine for sentencing purposes." Sanders, 237 F.3d at 184; see also United States v. Canales, 91 F.3d 363, 368 (2d Cir. 1996); United States v. Jackson, 59 F.3d 1421, 1424 (2d Cir. 1995) (per curiam) (interpreting the statutory meaning of cocaine base to include all forms of cocaine base, not just crack cocaine); United States v. Palacio, 4 F.3d at 154— 55 (same).

The Indictment charged Jimenez with conspiracy to distribute "50 grams and more of mixtures and substances containing a detectable amount of cocaine base, in a form commonly known as 'crack.'" Indictment at 2. Jimenez stipulated to both the amount, 150 grams, and the type, crack cocaine, in his Plea Agreement. See Plea Agreement at 1. During his allocution, he further identified both the amount and type of drug. See Plea Hearing at 7-8. Counsel cannot be deemed ineffective for failing to challenge either finding. Counsel had no reason to believe that such findings were questionable, and the outcome was not prejudiced by the findings. Furthermore, as Apprendi is inapplicable to petitioner's case,see infra Part II.D, counsel's failure to apprise petitioner of any Apprendi rights cannot demonstrate ineffectiveness. As counsel was not ineffective, petitioner's waiver of his right to file a habeas petition is valid. Moreover, the effectiveness of his counsel bars petitioner from raising the cause and prejudice exception to the procedural bar rule. Accordingly, the instant motion must be dismissed.

D. Apprendi Is Not Applicable to Petitioner's Case

In June 2000, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 u.s. at 490. Petitioner contends that this Court violated his constitutional rights in accepting the amount and type of drugs stipulated in the Plea Agreement without an evidentiary hearing.

This circuit has held that Apprendi does not apply where the defendant has stipulated to the relevant facts.

Though the question of whether, after Apprendi, a judge's fact findings that create a higher mandatory minimum violate defendant's right to a jury trial is an open one in this circuit, that question is not before us. In this case, at trial, Champion stipulated to the quantity of drugs involved in his crime. Thus, even if the district court erred by arrogating to itself the quantity-determining function, any such error was surely harmless. Under the stipulation, a jury could not have found differently.

We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case.

III. CONCLUSION

For the foregoing reasons, petitioner's motion under section 2255 is dismissed. Because petitioner has failed to make a substantial showing that he was denied a constitutional right, this Court will not issue a certificate of appealability. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.) (holding that substantial showing exists where (i) the issues involved in the case are debatable among jurists of reason, or (ii) a court could resolve the issues in a different manner, or (iii) the questions are adequate to deserve encouragement to proceed further), cert. denied, 121 S.Ct. 175 (2000) The Clerk of the Court is directed to close this case.

SO ORDERED