The opinion of the court was delivered by: Leon Jordan United States District Judge
Proceeding pro se, federal inmate Kibwe Hopson has moved, under 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence, advancing two claims of ineffective assistance of counsel as grounds for relief.*fn1 [Doc. 1]. He has also filed a number of other motions. [Docs. 5, 6, 10, 11, 12, 14, and 16]. The United States has responded, arguing that the motion to vacate should be denied because the petitioner had waived his right to file it and also because the claims raised therein have no merit. [Doc. 3]. The petitioner has replied, objecting to the government's failure to submit an affidavit from his attorney, addressing the allegations made in the motion. [Doc. 4].
This Court must vacate and set aside a petitioner's conviction if it finds "there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255. To prevail under § 2255, a petitioner "must show a 'fundamental defect which inherently results in a complete miscarriage of justice,' or an error so egregious that it amounts to a violation of due process." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (quoting Hill v. United States, 368 U.S. 434, 428 (1962)).
Under Rule 8 of the Rules Governing Section 2255 Proceedings in the United States District Courts, the court is to determine, after a review of the answer and the records of the case, whether an evidentiary hearing is required. If the motion to vacate, the answer, and the records of the case show conclusively the petitioner is not entitled to relief under § 2255, there is no need for an evidentiary hearing. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986). The Court FINDS no need for an evidentiary hearing in the instant case and his pending motions for such a hearing, to renew his motion for such a hearing, and to "Award the Writ" will be DENIED. [Docs. 5, 6, 10, 12, 14, and 16].
II. PROCEDURAL BACKGROUND
In March of 2003, pursuant to a plea agreement, the petitioner pled guilty to an information charging him with one count of conspiracy to distribute and possession with the intent to distribute at least 50 grams of cocaine base (crack), in violation of 21 U.S.C. § 846, and one count of possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A). For these offenses, he received an effective 240-month sentence [180 months for the drug crime and a consecutive 60 months for the firearms offense]. He did not appeal, but instead, brought this § 2255 motion.
In the agreed factual basis, attached to the plea agreement, the petitioner stipulated to the facts which follow. [Doc. 5, Criminal Action No. 2:03-cr-14]. During a stated period of time, the petitioner conspired with three others to distribute at least 50 grams of crack cocaine and to possess with the intent to distribute that quantity of drugs. He and Amanda Whaley, his coconspirator, shared an apartment where they processed the powder cocaine into crack and stored crack cocaine, money and guns. In exchange for a portion of the crack, other individuals allowed him to use their apartments to convert large amounts of powder cocaine into crack cocaine. Among these individuals were a pregnant woman, who purchased some 17 grams of crack cocaine and allowed the petitioner to use her apartment to process some 3 kilograms of powder cocaine into crack cocaine, and two persons who were cooperating with the government and had observed the petitioner sell at least 700 grams of crack cocaine from their apartments to various customers, including another visibly-pregnant woman.
On one occasion, the petitioner sold six grams of crack cocaine to an undercover agent. The transaction was observed by other officers and audio recorded. On the day of his arrest, the petitioner and two coconspirators were videotaped leaving an apartment en route to a prearranged guns-for-drugs exchange with an undercover agent. During that transaction, which occurred within 700 feet from a school, the petitioner traded 9 grams of crack cocaine for a MAC-11 9mm semi-automatic pistol. The petitioner was arrested and seventeen grams of crack cocaine were found in a subsequent search of his vehicle. Discovered in the search of his apartment were two kilograms of powder cocaine; four ounces of crack cocaine; a large cache of money, which included a twenty dollar bill used by agents to purchase crack cocaine from the coconspirator; six handguns-of those six weapons, four were loaded, and one of those four was lying beside the money and another within arms' reach of the cocaine; a double-barreled shotgun, also loaded; and supplies for processing the cocaine powder into crack. Upon these facts, the petitioner pled guilty to the crack cocaine conspiracy and the firearms offense.
The United States asserts that the petitioner has waived his right to file this motion, by virtue of the following provision in the plea agreement:
"[T]he defendant knowingly and voluntarily agrees to waive any right he may have to file any post-conviction motions or pleadings pursuant to Title 28, United States Code, Section 2255. Specifically, the defendant knowingly, intentionally, and voluntarily waives his right to collaterally attack the plea(s) being offered in the instant case."
[Doc. 4, Plea Agreement at ¶ 13, Criminal Action No. 2:03-cr-14]. The plea agreement further provides that the waiver has no impact upon the petitioner's right to appeal or collaterally attack the conviction and sentence upon grounds of ineffective assistance of counsel unknown to the petitioner at the time of the plea. [Id.].
A provision in a plea agreement waiving the right the file a § 2255 motion is an enforceable waiver, even as to claims of ineffective assistance of counsel, so long as the waiver is done knowingly, intelligently and voluntarily. Davila v. United States, 258 F.3d 448, 451-52 (6th Cir. 2001); see also Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999) ("Accordingly, we hold that a defendant's informed and voluntary waiver of the right to collaterally attack a sentence in a plea agreement bars such relief.").
In this case, the plea agreement waived the right to file a § 2255 motion as to all issues, save claims of ineffective assistance of counsel and prosecutorial misconduct based on grounds unknown at the time of the plea. The Court's task is to determine whether the waiver was made knowingly and voluntarily and, if so, whether the claims of ineffective assistance and actual innocence alleged here as grounds for relief would have been known at the time he pled.
This Court scrupulously complies with Rule 11 of the Federal Rules of Criminal Procedure governing acceptance of guilty pleas and determines whether a defendant understands the nature of the charge against him, the minimum and maximum penalties he is facing, and the rights he is giving up by pleading guilty. This Court also informs a defendant of, and determines that he understands, the terms of any appellate-waiver or collateral-attack-waiver provision in the plea agreement. Fed. R. Crim. P. 11(b)(1)(N).
In the plea hearing, the Court specifically questioned the petitioner regarding the waiver provision in the plea agreement to ascertain whether he ...