FINDINGS AND RECOMMENDATIONS
Petitioner is a federal prisoner, currently confined at the Federal Correctional Institution at Butner, North Carolina. He is proceeding in this action pro se with a petition for a writ of error coram nobis challenging his 2001 conviction in this court for traveling in interstate commerce for the purpose of engaging in sexual acts with a minor, in violation of 18 U.S.C. § 2423. Before the court is respondent's motion to dismiss the petition or, in the alternative, for summary judgment. (Doc. No. 17.) Petitioner has filed an opposition to the motion. Respondent has filed a reply. On January 16, 2009, petitioner filed an unauthorized "surreply" which the court will nonetheless consider in light of petitioner's pro se status.*fn1
On February 11, 1999, a federal grand jury for this district returned an indictment charging defendant as follows:
Count One: offer to obtain custody or control of a minor with knowledge that, as a consequence of the obtaining of custody, the minor would be portrayed in a visual depiction engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2251(A)(b)(1) and (c)(1);
Count Two: attempt to use a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, knowing that such visual depiction would be transported in interstate commerce between the States of California and Nevada, in violation of 18 U.S.C. § 2251(a) and (d)[.]
Count Three: travel in interstate commerce for the purpose of engaging in sexual acts with a minor, in violation of 18 U.S.C. § 2423(b).
United States v. Ballard, CR. S-99-0050 DFL, Indictment (Doc. No. 8.)
On July 24, 2000, the trial on the charges against petitioner commenced in this court before United States District Judge David F. Levi.*fn2 On August 1, 2000, the jury found petitioner guilty on counts one and three of the indictment and acquitted him on count two. Counsel on behalf of petitioner filed several post-conviction motions including motions for judgment of acquittal, a new trial and to amend the defense motions. On November 16, 2000, the court granted petitioner's motion for judgment of acquittal with respect to count one of the indictment, notwithstanding the jury's guilty verdict on that count, but denied petitioner's motions in all other respects, including his motion to dismiss count three of the indictment upon which the jury had found him guilty.
On December 13, 2000, the government filed a notice of appeal indicating that it would seek to challenge the judgment of acquittal entered with respect to count one of the indictment. Following protracted litigation with respect to sentencing, on November 15, 2001, the court sentenced petitioner on count three of the indictment to a term of imprisonment of 63-months, a three year term of supervised release to follow his incarceration, and the mandatory $100 special penalty assessment. See CR. S-99-0050 DFL, Indictment. (Doc. Nos. 140-141.) Imposition of a fine was waived. (Id.)
On December 13, 2001, following post-sentencing negotiations, the parties lodged with the court a fully executed agreement entitled, "Stipulation for Mutual Waivers of Appeal and Waiver of Defendant's Post-Conviction Relief Rights." (Id., Doc. No. 142.) That stipulation provided:
Whereas plaintiff United States of America has filed a notice of appeal from the Court's November 16, 2000, judgment of acquittal on Court One of the Indictment notwithstanding the jury's verdict of guilty convicting defendant John Marvin Ballard on that count; Whereas, in the event that the United States prevails in its appeal of the Court's November 16, 2000, judgment of acquittal on Count One, Ballard would be subject to at least twenty years to life imprisonment on that count;
Whereas on November 20, 2000, the Court entered its judgment and sentence against Ballard on Count Three of the Indictment and Ballard has a right to appeal his conviction and sentence; and Whereas, both the United States and Ballard desire to end any further litigation in this case, including all appeals and any post-conviction collateral attacks on Ballard's conviction and sentence on Count Three of the Indictment, whether by way of a motion pursuant to 28 U.S.C. § 2255 or otherwise, It is hereby stipulated and agreed by and between the United States and Ballard that in consideration of and in exchange for the other party's irrevocable waiver of valuable rights:
1. Ballard hereby waives all of his rights to appeal and shall not file a notice of appeal in this case; including without limitation an appeal from any ruling, order, judgment, or sentence by the Court. In the event that Ballard has already filed a notice of appeal, he shall forthwith file a motion to dismiss the appeal;
2. Ballard hereby waives his rights to any post-conviction collateral attacks on his conviction and sentence on Count Three of the Indictment, whether by way of a motion ...