Opinion
1:15-CR-00202 EAW, 1:22-CV-00059 EAW
2022-06-06
UNITED STATES of America, v. Pethrod DUNNIGAN, Defendant. Pethrod Dunnigan, Petitioner, v. United States of America, Respondent.
Brendan T. Cullinane, Michael Jason Adler, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America in 1:15-CR-00202 EAW. Pethrod Dunnigan, Bradford, PA, Pro Se in 1:22-CV-00059 EAW.
Brendan T. Cullinane, Michael Jason Adler, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America in 1:15-CR-00202 EAW.
Pethrod Dunnigan, Bradford, PA, Pro Se in 1:22-CV-00059 EAW.
ELIZABETH A. WOLFORD, Chief Judge
I. Introduction
Pending before the Court are a pro se motion filed by defendant Pethrod Dunnigan (hereinafter "Defendant" or "Petitioner") for reconsideration of the Court's December 9, 2020 Decision and Order denying his motion for compassionate release (Dkt. 428; see also Dkt. 400; Dkt. 405) and a motion filed pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence (Dkt. 426). For the reasons set forth below, Defendant's motions are denied.
All references to the docket ("Dkt.") in this Decision and Order are to the docket in Criminal Action No. 1:15-CR-00202 EAW.
II. Motion for Compassionate Release
A. Background
On February 8, 2018, Defendant pleaded guilty to two counts of the second superseding indictment returned on March 17, 2016 (Dkt. 49): Count 1, charging a violation of 21 U.S.C. § 846, conspiracy to possess with intent to distribute, and to distribute, 5 kilograms or more of cocaine; and Count 2, charging a violation of 18 U.S.C. § 1956(h), conspiracy to commit money laundering. (See Dkt. 230; Dkt. 231; Dkt. 233). Defendant's plea agreement was entered into pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), and called for a term of imprisonment of 156 months. (Dkt. 230 at 6). On June 7, 2018, the Court accepted the plea agreement and sentenced Defendant to 156 months in the custody of the Bureau of Prisons ("BOP") on each of Counts 1 and 2, to run concurrently, as well as five years of supervised release on Count 1 and three years on Count 2, to run concurrently to Count 1. (Dkt. 256; Dkt. 257).
As referenced by his motion, Defendant previously filed a motion seeking compassionate release on November 2, 2020 (Dkt. 400), which the Court denied on December 9, 2020 (Dkt. 405 (hereinafter the "December 9, 2020 D&O")), concluding that Defendant failed to demonstrate that the factors set forth at 18 U.S.C. § 3553(a) justified his release (id. at 6). Defendant is 44 years old, and according to the Presentence Investigation Report (PSR), he has several prior convictions, including one felony and one misdemeanor controlled substances conviction, one felony conviction for criminal possession of a weapon, and several disorderly conduct convictions. (See Dkt. 252 at ¶¶ 76-86).
Defendant is currently housed at Federal Correctional Institution McKean ("FCI McKean"), and he is scheduled to be released on October 9, 2027. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited June 2, 2022). According to statistics published on a BOP website, FCI McKean currently has no inmates testing positive for the virus causing COVID-19. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited June 2, 2022). Accordingly, it appears that at this time FCI McKean is controlling the spread of the virus.
At the time of the Defendant's previous filing, he was scheduled to be released on May 1, 2027 (see Dkt. 405 at 2), but as further explained below, due to disciplinary infractions stemming from his possessing hazardous tools, his projected release date has been delayed due to the loss of good time credit.
Defendant asks that the Court reduce his sentence, contending that the spread of the delta and omicron variants of the virus causing COVID-19, combined with his existing medical conditions, constitutes extraordinary circumstances. (Dkt. 428 at 1). He cites specifically to his obesity and hypertension, as well as the fact that he is an ex-smoker and is pre-diabetic. (Id. at 1, 7). Defendant further argues that he has served over 51 percent of his imposed sentence, and he has filed a motion pursuant to 28 U.S.C. § 2255, which he contends would change his criminal history category for his underlying conviction. (Id. at 1). He likewise argues that FCI McKean is not controlling the virus, including because the prison does not separate inmates who have testified positive, it has accepted a large volume of transfers, and has a poor air ventilation system. (Id. at 2-3; see also Dkt. 431).
The government opposes Defendant's motion, arguing that he has neither established extraordinary and compelling circumstances nor that the factors set forth at 18 U.S.C. § 3553(a) justify his release. (Dkt. 430).
In addition to the submissions from the parties, the Court received a memorandum from the United States Probation Office ("USPO") dated February 17, 2022. (Dkt. 434). The USPO notes that Defendant's medical conditions—hypertension, obesity, pre-diabetes, and history of smoking—are unchanged from the time of his first motion, but Defendant is now vaccinated against COVID-19. (Id. at 2). To address the spread of COVID-19, FCI McKean is currently operating as a "Level 3" facility with intense modifications, including social distancing in all areas, the use of masks, the limiting of crowds, and a unit designated to quarantining positive inmates. (Id. at 1-2). The USPO further notes the following:
Mr. Dunnigan is scheduled to complete his incarceration sentence and be released to begin his supervised release on October 9, 2027. When this officer responded to Mr. Dunnigan's first motion, his release date was May 1, 2027. When an inmate's release date is moved to a later date, it is consistent with losing good conduct time due to disciplinary reasons. This officer reviewed Mr. Dunnigan's disciplinary record while being incarcerated at the BOP. His record indicates that he has received three disciplinary actions for possessing a hazardous tool, with the most recent noncompliance being on April 3, 2021. Mr. Dunnigan has lost a total of 123 days of good conduct time towards his release for those disciplinary actions.
(Id. at 1). The USPO further noted Defendant's "extremely violent history with multiple assault and criminal possession of a weapon arrests," as well as the undersigned's finding at sentencing regarding his "lack of employment history, his criminal history, the extensiveness of the conspiracy, and that his drug trafficking conduct harms communities," in opining that extraordinary and compelling reasons are not present in his case. (Id. at 2).
B. Legal Standard and Analysis
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti , 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:
The court may not modify a term of imprisonment once it has been imposed except that ... the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
18 U.S.C. § 3582(c)(1)(A). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; and (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term. "The defendant carries the burden of showing that he or she is entitled to a sentence reduction under the statute." United States v. Roney , No. 10-CR-130S, 2020 WL 2846946, at *2 (W.D.N.Y. June 2, 2020), aff'd , 833 F. Appx 850 (2d Cir. 2020).
The Second Circuit has held that U.S.S.G. § 1B1.13 Application Note 1(D) does not apply to compassionate release motions brought directly to the court, and therefore a court is not constrained by the Sentencing Guideline's policy statements as to what constitutes "extraordinary and compelling." United States v. Brooker , 976 F.3d 228, 236 (2d Cir. 2020).
Defendant states that he has fully exhausted his administrative remedies (Dkt. 428 at 7, 9, 26-30) and the government agrees (Dkt. 430 at 6 n.4). Thus, the exhaustion requirement does not bar the relief sought by Defendant.
While the Court agrees that Defendant suffers from pre-existing medical conditions that place him at an increased risk of serious illness from COVID-19, the Court continues to believe—as it did at the time it issued the December 9, 2020 D&O—that his motion for compassionate release should be denied. Defendant has offered no additional evidence supporting his request for compassionate release and, in fact, the additional evidence before the Court—that he violated the BOP's rules and regulations by possessing a hazardous tool—does not weigh in his favor. Further, there is no indication that Defendant's medical conditions are poorly controlled, and records attached to his motion indicate that medical staff is monitoring his reported conditions. In August and September 2021, Defendant received the Moderna COVID-19 vaccination. (See Dkt. 428 at 4).
As the Court explained in the December 9, 2020 D&O, the § 3553(a) factors do not support modification of Defendant's prison term. Defendant admitted to his involvement in a massive cocaine trafficking conspiracy, wherein he personally purchased 15 kilograms of cocaine, engaged in structured bank transactions, and on one occasion alone shipped approximately $500,000 in U.S. currency to California by hiding cash in a small refrigerator within a crate. (Dkt. 230 at ¶ 4). Defendant's criminal history is extensive (Dkt. 252 at ¶¶ 76-86; see also Dkt. 404 at 2), and he committed the instant offense while he was on parole for his firearms conviction (Dkt. 252 at ¶ 88). To now reduce Defendant's agreed-upon Rule 11(c)(1)(C) sentence because of the COVID-19 pandemic would significantly undermine the purposes of the original sentence, in view of the factors set forth at 18 U.S.C. § 3553(a). See United States v. Roney , 833 F. Appx 850, 854 (2d Cir. 2020) ("[C]ourts regularly consider whether compassionate release would be consistent with § 3553(a) by considering how early release would impact the aims of the original sentence.").
C. Conclusion
Accordingly, on the record before the Court, a reduction of Defendant's prison sentence is not warranted, and therefore his motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 428) is denied.
III. Motion to Vacate, Set Aside, or Correct Sentence
A. Legal Standard and Arguments Raised by the Parties
A prisoner in federal custody may challenge the validity of his sentence by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. See 28 U.S.C. § 2255(a). " Section 2255 provides relief in cases where the sentence: (1) was imposed in violation of the U.S. Constitution or the laws of the United States; or (2) was entered by a court without jurisdiction to impose the sentence; or (3) exceeded the maximum detention authorized by law; or (4) is otherwise subject to collateral attack." Adams v. United States , 372 F.3d 132, 134 (2d Cir. 2004) (citing 28 U.S.C. § 2255 ). "Insofar as claims regarding a sentencing court's error in failing to properly apply the Sentencing Guidelines are neither constitutional nor jurisdictional ... absent a complete miscarriage of justice, such claims will not be considered on a § 2255 motion where the defendant failed to raise them on direct appeal." Graziano v. United States , 83 F.3d 587, 590 (2d Cir. 1996). "In reviewing a pro se petition for habeas corpus, the Court must be mindful that ‘[a] document filed pro se is to be liberally construed, and a pro se [pleading], however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’ " Harris v. United States , No. 6:14-CR-6149 EAW, 2020 WL 4059198, at *2-3 (W.D.N.Y. July 20, 2020) (alterations in original) (quoting Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ).
Petitioner filed his motion to vacate on January 18, 2022, raising several grounds for relief, all of which are based on the same theory: that some of his state convictions have been expunged, and therefore his criminal history, as calculated in the PSR, is now at a lower level than it was at the time he was sentenced. (See Dkt. 426 at 4-5 (arguing that he successfully attacked his state level marijuana convictions, which were expunged); id. at 6-7 (arguing that prior predicate crimes have been expunged at the state level and no longer qualify, and he is entitled to resentencing); id. at 8 (arguing that the court has jurisdiction to resentence him under the First Step Act)). Petitioner concedes that although his judgment of conviction became final over one year ago, the one-year statute of limitations contained in 28 U.S.C. § 2255 does not bar his motion, because his arguments are based on newly discovered evidence—in other words, because the law as it pertains to his marijuana convictions changed after he was sentenced, and his convictions have been expunged. (See id. at 5, 11). He asks that the Court prepare a new PSR and that he be resentenced. (Id. at 12).
In explaining why he did not raise his claims earlier, Petitioner explains that the marijuana laws were different at the time of his sentencing, but that he raised an issue with respect to his criminal history category at sentencing, and "[b]ack in 2018 ... my lawyer stayed mute while I raised the issue." (Dkt. 426 at 5). Petitioner attaches to his motion papers a portion of the sentencing transcript, reflecting that the Court addressed Petitioner's concerns relating to his disorderly conduct convictions (id. at 17-18). The Court has also reviewed the entirety of the sentencing transcript (Dkt. 368), which reflects that Petitioner's attorney informed the Court of Petitioner's pro se objections, the Court addressed the objections with Petitioner, and also confirmed that he wanted to go forward with sentencing (id. at 4-10). Given the circumstances, the Court does not view Petitioner's statement that his "lawyer stayed mute" as an attempt to raise any argument based on ineffective assistance of counsel.
The government raises several arguments in response, including: (1) Petitioner's claims are untimely, and he has failed to establish an exception to the one-year statute of limitations, including by establishing that any prior convictions were actually expunged; (2) his claims are not cognizable under § 2255 ; (3) even if the prior convictions were expunged, Petitioner's criminal history category does not change the agreed-upon sentence, which was entered pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure ; and (4) Petitioner's motion is barred by the collateral attack waiver in his plea agreement. (Dkt. 432 at 5-11).
B. The Motion to Vacate, Set Aside, or Correct Sentence is Denied
According to 28 U.S.C. § 2255, a one-year period of limitations applies to a motion attacking a sentence by a person in federal custody, and that time period runs from the latest of the following:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Here, the judgment of conviction was entered on June 8, 2018 (Dkt. 257), and thus became final for purposes of 28 U.S.C. § 2255, 14 days thereafter on June 22, 2018. See Moshier v. United States , 402 F.3d 116, 118 (2d Cir. 2005) ("[F]or purposes of § 2255 motions, an unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires."); Fed. R. App. P. 4(b)(1)(A)(i) ("In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after the later of: (i) the entry of either the judgment or the order being appealed...."). The instant motion was not signed until January 13, 2022 (Dkt. 426 at 12), more than three years after the judgment of conviction in this case became final.
Because Petitioner is proceeding pro se , "federal courts generally consider his ... petition for habeas corpus to have been filed as of the date it was given to prison officials for forwarding to the court clerk." Adeline v. Stinson , 206 F.3d 249, 251 n. 1 (2d Cir. 2000) (citing Houston v. Lack , 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) ).
Petitioner argues that his motion is timely because the statute of limitations should run from the date on which the facts supporting his claims were discovered. (See Dkt. 426 at 11 (listing as reasons for why one-year statute of limitations does not bar motion as "newly discovered evidence, newly divulge[d] evidence, state level certificate of disposition")). On March 31, 2021, New York repealed certain offenses involving marijuana, which were previously criminalized at New York Penal Law Article 221. See New York State Cannabis (Marihuana) Law (March 31, 2021), https://nycourts.gov/courthelp/Criminal/marihuanaIndex.shtml (last visited June 2, 2022). In an attachment to his motion papers, Petitioner specifically highlights language on certificates of disposition for several of his prior convictions, which states "[a]ll marijuana convictions under PL 221.05, PL 221.10, PL 221.15, PL 221.20, PL 221.35, or PL 221.40—including any appearing on this certificate of disposition—are vacated, dismissed, sealed, and expunged." (See Dkt. 426 at 13, 15-16).
Petitioner also cites 18 U.S.C. § 3582(c)(1)(A) as a basis for why his motion is not time-barred. (Dkt. 426 at 11). As explained above in Part II of this Decision and Order, that statute governs motions for compassionate release. Any motions filed by Petitioner pursuant to that statute were previously denied by the Court, and it is inapplicable to the instant motion to vacate, set aside, or correct his sentence.
The certificates of disposition submitted by Petitioner are for the following prior criminal convictions: (1) his September 6, 2005 conviction for Driving While Ability Impaired (DWAI) Alcohol (id. at 13); (2) his March 10, 2005 conviction for Disorderly Conduct: Creating Hazardous Condition (id. at 15); and (3) his February 25, 2005 conviction for Disorderly Conduct: Creating Hazardous Condition (id. at 16). None of these convictions are for marijuana offenses, and the certificate of disposition for Petitioner's DWAI conviction does not list any marijuana charges. A review of the certificates of disposition for the disorderly conduct convictions—some of which list marijuana possession in violation of N.Y. Penal Law 221.15 and 221.20 as original charges (see Dkt. 426 at 15-16)—indicates that Petitioner is referring to the offenses with which he was originally charged, rather than his offenses of conviction, which are used to calculate his criminal history category. Here, the PSR correctly used the crimes of conviction when calculating Petitioner's criminal history category. (See Dkt. 252 at ¶ 79 (February 25, 2005 conviction for disorderly conduct); id. at ¶ 80 (March 10, 2005 conviction for disorderly conduct); id. at ¶ 82 (September 6, 2005 conviction for DWAI)).
Petitioner states in his reply papers that although "disorderly conduct by itself is not a charge that can be counted by itself[,] it need[s] the marijuana to trigger being counted on my PSR." (Dkt. 433 at 1). As explained by the undersigned at sentencing, Petitioner's disorderly conduct convictions counted towards his criminal history because they involved conduct similar to the instant offense; that is, the instant case involves drug trafficking, and Petitioner's arrests for his disorderly conduct convictions involved charges relating to drug trafficking. (See Dkt. 368 at 8; Dkt. 252 at ¶¶ 79, 80); see also United States Sentencing Guidelines ("U.S.S.G.") § 4A1.2(c)(1).
Petitioner offers no factual or legal support for his assumption that New York's subsequent decriminalizing of his prior arrests should have retroactive effect on application of the Guidelines in his case, and the evidence submitted by Petitioner in support of his motion—the certificates of disposition—state only that "[a]ll marijuana convictions under PL 221.05, PL 221.10, PL 221.15, PL 221.20, PL 221.35, or PL 221.40" are expunged. (See Dkt. 426 at 13, 15-16 (emphasis added)); see also United States v. Harris , No. 2:12-cr-65-wks-1, 2020 WL 9218959, at *6 (D. Vt. Nov. 3, 2020) (in connection with § 2255 motion, where the petitioner argued he was entitled to relief because his vacated 2006 marijuana conviction inflated his criminal history category from III to IV and therefore increased his Guidelines range, explaining that the original sentence was lawful when imposed, and "[t]he vacatur of an underlying state conviction, by itself, does not automatically render the continued imposition of his current sentence unlawful," and that petitioner "must show that the ‘continued imposition’ of his sentence constitutes ‘a miscarriage of justice’ " (citation omitted)), adopted , 2021 WL 1516049 (D. Vt. Apr. 16, 2021).
Notably, even if the disorderly conduct convictions identified by Petitioner were expunged and did not count in his criminal history calculation, Petitioner's criminal history category would remain the same. The PSR calculated for Petitioner a criminal history score of nine, establishing a criminal history category IV. (Dkt. 252 at ¶ 89). Removing the two disorderly conduct convictions, each of which counted for one criminal history point (id. at ¶¶ 79, 80), would reduce his criminal history score to seven, which still establishes a criminal history category IV. See U.S.S.G. § 5A.
Even if the expungement of his disorderly conduct convictions resulted in a lower criminal history category, because Petitioner entered his guilty plea pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, he is not automatically entitled to resentencing. Under those circumstances, a change in his criminal history category "does not mean the continued imposition of his 1[56]-month sentence was a miscarriage of justice." United States v. Hoskins , 905 F.3d 97, 103 (2d Cir. 2018). In Hoskins , the Second Circuit held that the district court, in resolving a § 2255 motion, "erred in concluding that, after vacatur of Hoskins's 2002 Vermont conviction, the 112-month sentence entered pursuant to the parties’ Rule 11(c)(1)(C) plea agreement constituted a miscarriage of justice." Id. The court explained that although vacatur of the Vermont conviction resulted in Hoskins no longer being considered a career offender, he was not entitled to resentencing, noting, among other things, that even though the district court was required to consider the Guidelines range before accepting the Rule 11(c)(1)(C) agreement, that range was advisory, not mandatory, and the district court still made an "individualized assessment" of the sentence. Id. at 103-04.
Here, the PSR calculates a Guidelines range of 151 to 188 months (Dkt. 252 at ¶ 97), and therefore the Rule 11(c)(1)(C) agreement to a sentence of 156 months provided for a sentence at the low end of the Guidelines range. The Court has reviewed the transcript from the June 7, 2018 sentencing hearing, which reveals that in accepting the plea agreement, the undersigned made an individualized assessment of the sentence in determining that it was fair and just under the circumstances. (See Dkt. 368 at 10 (indicating that plea agreement is accepted and "for reasons that I will explain, I will impose the agreed-upon sentence in this case")). For example, in accepting the plea agreement, the undersigned carefully considered the nature and circumstances of the crime, including that Petitioner was "the Buffalo point of contact" for a large-scale, multi-kilogram cocaine distribution operation involving significant amounts of cash. Id. at 15-16. The undersigned also considered Petitioner's personal circumstances and criminal history (including that the instant crime was Petitioner's third felony conviction, and he committed it while under parole supervision), the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment, deter criminal conduct, and to protect the public from any future crimes. Id. at 16. The undersigned explained that although there were "good things" about Petitioner, he had been engaged for years in drug trafficking crimes which harm communities and, for all those reasons, "the 156 months in prison is appropriate." Id. at 17. In other words, the Court does not find that imposition of the 156-month sentence constitutes a "miscarriage of justice." Graziano , 83 F.3d at 590.
Further, Petitioner's motion is barred by the appeal/collateral attack waiver in his plea agreement. (See Dkt. 230 at ¶¶ 18-20). "Waivers of the right to appeal a sentence are presumptively enforceable." United States v. Riggi , 649 F.3d 143, 147 (2d Cir. 2011) (citation omitted). Likewise, "[t]here is no general bar to a waiver of collateral attack rights in a plea agreement." Frederick v. Warden, Lewisburg Corr. Facility , 308 F.3d 192, 195 (2d Cir. 2002) ; Muniz v. United States , 360 F. Supp. 2d 574, 576 (S.D.N.Y. 2005) ("A defendant's knowing and voluntary waiver of his right to bring a petition pursuant to section 2255 is generally enforceable."); see also United States v. Monzon , 359 F.3d 110, 116 (2d Cir. 2004) ("Where the record clearly demonstrates that the defendant's waiver of her right to appeal a sentence within an agreed Guidelines range was knowing and voluntary, that waiver is enforceable."). "However, a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, here, the plea agreement." Frederick , 308 F.3d at 195. More generally, "[a] violation of a fundamental right warrants voiding an appeal waiver." Riggi , 649 F.3d at 147 ; see also Muniz , 360 F. Supp. 2d at 577 (explaining that "[a]n enforceable waiver bars claims based on grounds that arose after, as well as before, the agreement was signed," but "a waiver of collateral attack rights in a plea agreement is unenforceable where the petitioner claims ineffective assistance of counsel in connection with the plea agreement itself").
Here, Petitioner's plea agreement contains a provision waiving his right to appeal or collaterally attack his sentence, including that he "knowingly waives the right to appeal and collaterally attack any component of a sentence imposed by the Court which includes a sentence of imprisonment of 156 months or less and otherwise falls within or is less than the sentencing range for imprisonment." (Dkt. 230 at ¶ 18; id. at ¶ 19 ("The defendant understands that by agreeing to not collaterally attack the sentence, the defendant is waiving the right to challenge the sentence in the event that in the future the defendant becomes aware of previously unknown facts or a change in the law which the defendant believes would justify a decrease in the defendant's sentence.")). Petitioner was sentenced to 156 months in prison (Dkt. 256; Dkt. 257), and therefore the collateral attack waiver in the plea agreement applies. See, e.g., Sanford v. United States , 841 F.3d 578, 581 (2d Cir. 2016) (collateral attack waiver applied where the defendant agreed in his plea agreement "not to file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a term of imprisonment of 210 months or below," and the court imposed a sentence of 148 months, "thus triggering the waiver," and his waiver was otherwise knowing and voluntary).
Petitioner's motion does not mention or address the collateral attack waiver contained in his plea agreement. He does not argue that his waiver was not knowing and voluntary or that he did not understand the waiver, nor does he raise any other issue relating to the plea process. The undersigned presided over Petitioner's change of plea hearing (see Dkt 231), and the record demonstrates that his waiver was knowing and voluntary. Petitioner signed the plea agreement, indicating that he read it, had a full opportunity to discuss it with his attorney, that he understood the consequences of pleading guilty, agreed with the contents of the agreement, and signed it "voluntarily and of [his] own free will." (See Dkt. 230 at 13). Accordingly, the Court concludes that Petitioner has failed to demonstrate any violation of his fundamental rights which would operate to void his appeal/collateral attack waiver, and therefore his motion is likewise denied on that basis.
C. Conclusion
For the foregoing reasons, Petitioner's motion to vacate, set aside, or correct his sentence (Dkt. 426) is denied. The Clerk of Court is instructed to close case number 1:22-CV-00059 EAW. Further, because Petitioner has not made "a substantial showing of the denial of a constitutional right," see 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability.
SO ORDERED.