The opinion of the court was delivered by: William J. Martini Judge
MARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURTHOUSE 50 WALNUT STREET, P.O. BOX 419 NEWARK, NJ 07101-0419 (973) 645-6340
This matter comes before the Court on the petition of pro se prisoner Charles A. Neely, Jr. ("Neely" or "Petitioner") to vacate, set aside, or correct his plea-bargained sentence pursuant to 28 U.S.C. § 2255. Additionally, he seeks appointment of pro bono counsel. There was no oral argument. Fed. R. Civ. P. 78. For the reasons stated below, the petition is DISMISSED WITH PREJUDICE and the relief requested therein is DENIED.
Petitioner entered into a written plea agreement (the "Plea Agreement") with the United States Attorney's Office for the District of New Jersey (the "U.S. Attorney's Office" or the "Government") on August 26, 2008. Under the terms of the Plea Agreement, the Government permitted Neely to plead guilty to conspiracy to commit mail fraud, mail fraud, and tax evasion. (Plea Agreement at 1). The agreement also stated that the total Guidelines offense level applicable to Petitioner's case would be 25, corresponding to 57- 71 months' incarceration, and that any sentence within that range would be deemed reasonable. (Id. at 11). Finally, Petitioner agreed to waive his right to file an appeal or post-conviction challenge provided his sentence fell within or below that range. (Id.).
Consistent with the terms of the plea agreement, Neely pled guilty before Magistrate Judge Patty Shwartz*fn1 on November 8, 2008 to a three-count information charging him with (1) conspiracy to commit mail fraud in violation of 18 U.S.C. §371 (Count 1); (2) mail fraud in violation of 18 U.S.C. §1341 (Count 2); and (3) tax evasion in violation of 26 U.S.C. §7201 (Count 3). (See Transcript of Plea Hearing (Nov. 6, 2008) ("Plea Hearing Trans.") at 43-44). Judge Shwartz questioned Neely at the hearing and concluded that his entry into the plea agreement was knowing and voluntary. (Plea Hearing Trans. at 44-45). After the hearing, Judge Shwartz entered a Report and Recommendation stating her findings and conclusions. (Report & Recommendation (Nov. 6, 2008) ("Report") at 2). This Court adopted the Report and accepted the entry of Neely's plea shortly thereafter. (See Order Adopting Report & Recommendation (Nov. 19, 2008) ("Nov. 19, 2008 Order")).
Petitioner's sentencing was held before District Judge William J. Martini on April 15, 2009. Finding that the Petitioner's health was "in extremis" but that a term of imprisonment was appropriate, the Court sentenced Petitioner to 20 months' incarceration, to be followed by three years' supervised release. (See Transcript of Sentencing Hearing (April 15, 2009) ("Sent. Hearing Trans.") at 62-65). On November 16, 2009, Neely filed a petition pursuant to 28 U.S.C. § 2255, seeking to vacate, set aside, or correct his sentence. (Petitioner's initial §2255 petition (November 16, 2009) (the "Initial Petition")). On November 18, 2009, the Court advised Neely of his rights under United States. v. Miller, 197 F.3d 644 (3d Cir. 1999). Neely responded by filing an amended § 2255 petition (the "Amended Petition") on January 7, 2010, which corrected Petitioner's prisoner number and added an additional ground for consideration.*fn2 (See Petitioner's amended petition). Presently before the Court is Petitioner's amended petition for relief pursuant to § 2255.
28 U.S.C. § 2255 provides that a prisoner in custody serving a sentence imposed by a federal court may move the court that imposed the sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255. However, the statute does not afford a remedy for all errors that may have been made at trial or at sentencing. See United States v. Addonizio, 442 U.S. 178 (1979). Errors warranting modification must raise "a fundamental defect which inherently results in a complete miscarriage of justice." Id. at 185 (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). A prisoner can challenge his or her sentence on the grounds that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255.
Neely raises three arguments in support of his petition for relief: (1) "prosecution misconduct;" (2) ineffective assistance of counsel; and (3) substandard medical treatment received at the prison, leading to the further deterioration of his health. The Government opposes these challenges and also raises the issue of waiver, which should be addressed at the outset.
1. Waiver of Petitioner's Right to Appeal or File a Collateral Attack
In his plea agreement dated August 26, 2008, Petitioner agreed to waive his right to file an appeal, collateral attack, writ or motion after sentencing, including a §2255 motion, if his sentence fell within or below the Guidelines range resulting from an offense level of 25, corresponding to 57 to 71 months incarceration. (Plea Agreement at 11). Petitioner was sentenced to 20 months, which ...