The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
Petitioner, proceeding in propia persona, moves to vacate his sentence under 28 U.S.C. § 2255. He argues that 18 U.S.C. § 3231, the statute giving district courts jurisdiction over federal crimes, is unconstitutional. He also argues that he received ineffective assistance of counsel because counsel failed to raise this issue. The government opposes the motion. For the reasons set forth below, the court hereby DENIES the motion.
Pursuant to a written plea agreement, Petitioner pleaded guilty on March 9, 2007 to one count of possessing with the intent to distribute approximately 220.77 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). (Resp., Exh. A ("Plea Agreement") at 2.) The plea agreement provided that the parties would jointly recommend a total offense level of 17. (Id. at 8.) The plea agreement also provided,
In exchange for the Government's concessions in this plea agreement, defendant waives, to the full extent of the law, any right to appeal or to collaterally attack the conviction and sentence, including any restitution order, unless the Court imposes a custodial sentence greater than the high end of the guideline range (or statutory mandatory minimum term, if applicable) recommended by the Government pursuant to this agreement at the time of sentencing. (Id. at 10.)
During the March 9, 2007 plea colloquy before Magistrate Judge Peter LEwis, Petitioner indicated that he understood he was giving up his right to appeal and collaterally attack and that he otherwise understood the plea agreement in its entirety. (See, e.g., Resp., Exh. B (Plea Colloquy) at 16-17, 4) Magistrate Judge Lewis found that Petitioner was competent to enter the plea and had entered into the plea agreement "knowingly and voluntarily with a full understanding of the nature of the charges, [Petitioner's] rights and the consequences of a plea or of the plea, and that there's a factual basis for [the] plea." (Id. at 21.) On the same day, this court accepted Petitioner's guilty plea and sentenced Petitioner to the mandatory minimum of 60 months in prison, followed by four years of supervised release. (See Minute Entry of May 9, 2007 (Doc. no. 15); Judgment (Doc. no. 17).) This sentence exceeded the advisory guideline range of 33-41 months. (See Resp., Exh. C (Sentencing Hearing) at 6.) The court advised Petitioner, "I have imposed [this] sentence under the agreement that you have entered into in such a way that you have waived your right to appeal or in any other way attack or challenge both the conviction based on your plea of guilty in this case, as well as the sentence imposed[.]" (Id. at 7.) Petitioner stated that he understood these facts. (Id.)
In his § 2255 motion, Petitioner claims that 18 U.S.C. § 3231, the statute giving district courts jurisdiction over federal crimes, is unconstitutional. He also argues that he received ineffective assistance of counsel because counsel failed to raise this issue. In support of his arguments, he includes portions of the legislative history of § 3231.
Respondent opposes the petition on the following two grounds: (1) Petitioner waived his right to collaterally attack his sentence and conviction; and (2) Petitioner's ineffective assistance of counsel argument fails on the merits.
A. Petitioner Waived His Right to Collateral Attack
Respondent argues that Petitioner cannot collaterally attack his sentence because he waived his right to do so in his plea agreement. Petitioner's § 2255 motion does not address this issue.
Section 2255 provides, in relevant part,
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to ...