FINDINGS AND RECOMMENDATIONS
Movant Faisal Rashid is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. Movant alleges that in this matter he entered a plea agreement unknowingly and involuntarily because his attorney erroneously led him to believe that he would receive a sentence of 186 months in prison by pleading guilty. For the reasons stated below, the court recommends that the motion be denied.
On August 10, 2007, movant entered a plea of guilty pursuant to a plea agreement to: conspiracy to import, possess, and distribute a List I chemical, knowing and having reasonable cause to believe that it will be used to make a controlled substance in violation of 21 U.S.C. § 846, § 841(c)(2), and § 960(d)(3); possession of a machine gun in violation of 18 U.S.C. § 922(o); conspiracy to launder money and international money laundering, in violation of 18 U.S.C. § 1956(h) and § 1956(a)(2)(A); conspiracy to smuggle goods into the United States in violation of 18 U.S.C. § 371 and § 545; and possession of a List I chemical in violation of 21 U.S.C. § 841(c)(2). (Answer, Ex. 1 - Plea Agreement at 1.)*fn1 On November 29, 2007, the court sentenced movant to the custody of the United States Bureau of Prisons for a term of 210 months, with a three year term of supervised release following his release from confinement, restitution in the amount of $3,228.00 and a $500 special assessment. (Judgment and Commitment (Doc. No. 179) at 1-6.)
Under the plea agreement entered by the parties, the Government agreed to dismiss without prejudice the remaining counts of the indictment against movant in the original and superseding indictments. (Answer, Ex. 1 - Plea Agreement at 5.) The Government also agreed not to oppose a three-level reduction in movant's offense level for acceptance of responsibility under United States Sentencing Guidelines (U.S.S.G.) § 3E1.1. (Id.) In exchange, movant specifically agreed to, among other things, "give up the right to appeal the conviction and the right to appeal any aspect of the sentence imposed in this case so long as his sentence is no longer than the top of the Sentencing Guidelines range determined by the Court consistent with the stipulations set forth above about the Sentencing Guidelines variables."*fn2 (Id. at 11.) By entering this plea agreement, movant also agreed to waive "any right he may have to bring a post-conviction attack on his conviction or his sentence. He specifically agrees not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking his conviction or sentence." (Id.)
Movant filed his pending § 2255 motion on December 2, 2008. On April 2, 2009, the Government filed a timely answer, requesting that the court deny the motion. Movant filed a reply on May 8, 2009.
A motion to vacate, set aside, or correct a sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief if "the court 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." Under § 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal. United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996); United States v. Burrows, 872 F.2d 915, 917 (9th Cir.1989). Mere conclusory statements or statements that are inherently incredible in a § 2255 motion are insufficient to require a hearing. United States v. Howard, 381 F.3d 873, 877, 879 (9th Cir.2004); United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980). While a petitioner is not required to allege facts in detail, he must make factual allegations. Hearst, 638 F.2d at 1194. Accordingly, an evidentiary hearing is only required if: (1) a petitioner alleges specific facts, which, if true would entitle him to relief; and (2) the petition, files, and record of the case cannot conclusively show that the petitioner is entitled to no relief. Howard, 381 F.3d at 877.
I. Waiver of § 2255 Rights
Movant argues, and the Government concedes, that the waiver of his § 2255 rights in the plea agreement does not preclude the court from considering his ineffective assistance of counsel claim. (Mem. of Law in Supp. of Mot. (Mem.) at 4-6; Answer at 3.) The court agrees.
When a petitioner alleges, as movant does here, that he entered a plea agreement unknowingly or involuntarily as the result of the ineffective assistance of counsel, his claim is not barred by the plea agreement's waiver of § 2255 rights. See Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (holding that a plea agreement waiving the right to file a federal habeas petition pursuant to 28 U.S.C. § 2254 does not preclude an ineffective assistance of counsel claim attacking the voluntariness of the waiver); see also United States v. Jeronimo, 398 F.3d 1149, 1156 n.4 (9th Cir. 2005) (acknowledging that other circuits have uniformly held that a waiver of § 2255 rights is unenforceable when a petitioner challenges the waiver's validity on ineffective assistance of counsel grounds). Therefore, the court will address the merits of movant's ineffective assistance of counsel claim here.
II. Ineffective Assistance of Counsel
Movant alleges that his counsel rendered ineffective assistance by incorrectly promising him that he would receive a sentence of a 186-month term of imprisonment if he pleaded guilty to the charges. (See Mem. at 9.) Movant claims that absent this alleged promise from his attorney, he would not have entered into the plea agreement. (Id. at 5.) Rather, petitioner maintains, he "would have retained options such [as] proceeding to trial." (Id.)
The Government contends that movant's ineffective assistance of counsel claim is entitled to "no weight" and should be dismissed without an evidentiary hearing. (Answer at 4.) The Government emphasizes that movant's claim is directly contradicted by the record in this case as reflected both in the plea agreement and the transcript of the change of plea hearing. There, movant specifically stated that he was not induced to plead guilty by any promise not contained in the plea agreement itself. (Id.) The Government also argues that even if movant's counsel did promise him a 186-month sentence, in this case movant is not entitled to relief or to withdraw his ...