The opinion of the court was delivered by: Hon. Jerome B. Simandle
Petitioner Dwight Turlington was sentenced by the undersigned to a term of imprisonment of 84 months, less than one-third of the time the Federal Sentencing Guidelines recommended, due to his substantial assistance to the Government. According to a written plea agreement, Petitioner pled guilty to one count of conspiracy to distribute more than 50 grams of cocaine base, which is crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. (Govt. Ex. 1.) Although he waived his right to collateral attack in that plea agreement, Petitioner now brings this pro se habeas corpus petition pursuant to 28 U.S.C. § 2255. (Plea Agrmt. at 8, Govt. Ex. 4.) He argues that he is entitled to re-sentencing under United States v. Booker, 543 U.S. 220 (2005), because the Court erroneously enhanced his sentence based upon facts that were not stipulated to by Petitioner nor found by a jury. (Pet'r. Br. at 4.) The application will be dismissed because it is procedurally barred and because Petitioner knowingly and voluntarily waived his right to post-conviction relief under § 2255. Additionally, Petitioner's claims would fail even if considered on the merits.
Petitioner was arrested in September 2002 as part of a seven-member cocaine ring based in Camden, New Jersey. Petitioner purchased powder cocaine from a co-conspirator and processed it, turning it into crack cocaine for resale to his customers. (Presentence Rep. ¶ 33, Govt. Ex. 5.)
On November 13, 2002, Petitioner pled guilty to a one-count indictment, which charged him with conspiracy to distribute more than 50 grams of cocaine base, or crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. (See Govt. Ex. 1.) The cooperating plea agreement included stipulations that Petitioner was accountable for at least 150 grams, but less than 500 grams, of crack cocaine. (Plea Agrmt. at 8.)
The plea agreement required Petitioner to truthfully testify in grand jury and trial proceedings and assist in ongoing investigations. (Id. at 2). At the time Petitioner submitted his plea, two members of his drug ring remained fugitives. (Presentence Rep. ¶¶ 15, 20.) If he provided substantial assistance, the Government promised to file a motion for a sentence reduction pursuant to § 5K1.1 of the Federal Sentencing Guidelines and 18 U.S.C. § 3553(e). (Plea Agrmt. at 2.) The agreement further stipulated that Petitioner waived his rights "to file any appeal, any collateral attack. . . or motion under 28 U.S.C. § 2255" if the sentence imposed by the Court was equal to or less than a sentence for a Level 34 offense. (Id. at 8.)
At Petitioner's plea hearing, the Court had Petitioner reread the portion of his plea agreement in Stipulation 5 that conditionally waived his right to seek § 2255 relief (see Plea Agrmt. at 8), and Petitioner acknowledged he had discussed this waiver with his attorney. (Plea Hr'g Tr., Govt. Ex. 3, at 28:17 to 29:1.) This Court then conducted a lengthy colloquy with Petitioner during which he acknowledged that he fully understood the plea agreement and voluntarily agreed to its terms. (Id.):
THE COURT: Is it your own personal decision to plead guilty?
THE COURT: Has anyone else told you that you've got to plead guilty?
THE COURT: And are you pleading guilty of your own free will?
THE COURT: Do you understand that there's another kind of right which is called the right to file for post-conviction relief under Section 2225, in other words, within a year after a conviction becomes final, a federal prisoner could file a 2255 motion. That motion comes to me as the sentencing judge, and within that motion you would be asking me to take a second look at your conviction and your sentencing to determine whether any ...