The opinion of the court was delivered by: Honorable Joseph E. Irenas
Presently, before the Court are Petitioner Juan Alberto Mejia's Petition to Vacate, Set Aside or Correct Sentence brought under 28 U.S.C. § 2255, and the government's Motion to Dismiss Mejia's Petition.*fn1
On July 29, 1999, Petitioner, a citizen of the Dominican Republic, was detained upon arrival in the United States at JFK Airport, New York, while trying to enter the country under a false name. (Gov't Br. at 8-9.) The same day, after interviewing Petitioner, an Immigration and Naturalization Inspector from the U.S. Immigration and Nationalization Service (INS) removed him from the United States back to the Dominican Republic. (Id. at 9-10.) Petitioner subsequently returned to this country, and was arrested on February 24, 2007 for distribution of cocaine.*fn2 (Presentence Investigation Report at 10.)
On August 2, 2007, Petitioner pled guilty to two felony charges: (1) conspiring to distribute and possess with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 846, and (2) illegal re-entry by a removed alien in violation of 8 U.S.C. § 1362(a).*fn3 In exchange for a guilty plea, the government agreed to forego further charges against Petitioner for past violations of drug and immigration laws. (Plea Agreement at 1.) In addition, the plea agreement signed by all parties precluded their filling of appeals, collateral attacks, and writs or motions after sentencing, including petitions under 28 U.S.C. § 2255. (Id. at 3.)*fn4
On November 19, 2007, the Court applied the statutory "safety valve"*fn5 and sentenced Petitioner to a term of 37 months imprisonment for Count I and 24 months for Count II, to be served concurrently, based on finding an offense level of 21 and criminal history of I under the Guidelines. On August 4, 2008, despite the stipulations of the plea agreement, Petitioner filed the instant Petition pursuant to 28 U.S.C. § 2255 claiming he was denied his Sixth Amendment right to effective assistance of counsel.*fn6 While Mejia had counsel during his plea and sentencing, he now proceeds in forma pauperis and pro se contending that his counsel failed to object to the charge of illegal re-entry prior to Petitioner signing a plea agreement.*fn7
He argues that because he was removed by an INS Inspector without a deportation order from an immigration judge, he was never subject to 8 U.S.C. § 1362(a), and his counsel should have argued that point. As a result, he contends that his term of imprisonment should be reduced from 37 to 30 months.
Before directly addressing the merits of Petitioner's claim, the Court will first address the government's argument that Mejia's waiver of collateral attack is valid and enforceable and therefore, his Petition is barred. The Third Circuit has held that waivers of the right to appeal are "permissible" if entered into "knowingly and voluntarily, unless they work as a miscarriage of justice." United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001). Additionally, the Supreme Court has extended the ability to waive rights to include Constitutional rights like the right to counsel. Johnson v. Zerbst, 304 U.S. 458, 465 (1995). Moreover, the Third Circuit has applied the Khattak analysis to waivers of collateral attacks. United States v. Perry, 142 F. App'x 610, 611-12 (3d Cir. 2005) (upholding the district court's dismissal of a § 2255 collateral attack because Petitioner failed to show a "miscarriage of justice" ). Similarly, numerous courts in this district have also applied the Khattak test in barring collateral attacks. See, e.g., Coffee v. United States, No. 06-1296, 2007 WL 2705163, at *2 (D.N.J. Sep. 17, 2007) (Brown, C.J.).*fn8
Mejia does not deny that his waiver was signed "knowingly and voluntarily." In addition, prior to accepting Mejia's plea, the Court asked him very specific questions to ensure he understood the agreement in which he was about to enter:
THE COURT: And do you also understand that even after an appeal, even after an unsuccessful appeal, you may have the right to challenge your sentence under what we call a collateral attack or post conviction relief?
THE COURT: But do you understand that in this case, in your plea agreement, and specifically... Paragraph 17 of Schedule A, you have waived, surrendered, given up your right to appeal, and your right to post conviction relief or collateral attack, if you are sentenced ...