The opinion of the court was delivered by: Hon. Faith S. Hochberg, U.S.D.J.
Petitioner Ashish Paul submitted a motion to vacate, set aside, correct, amend, or modify his sentence, pursuant to 28 U.S.C. § 2255. After having carefully reviewed the submissions of the parties, the Court will deny the motion.
Factual and Procedural History
On April 17, 2007, Petitioner pled guilty before this Court to Count 6 of an Indictment that charged him with conspiracy to commit money laundering in violation of 18 U.S.C. § 1956 (h). In the plea agreement, the parties agreed that Mr. Paul's offense of conviction resulted in an offense level of 24 under the United States Sentencing Guidelines ("Guidelines"). As part of the agreement, Petitioner waived his right to any appeal or collateral attack if the Court's sentence fell within the Guideline's range.
On May 19, 2008 this Court sentenced Mr. Paul to 60 months, which falls within the Guidelines range for a level 24 offense.*fn1
On July 1, 2009, Mr. Paul filed the instant pro se motion under 28 U.S.C. § 2255 claiming that the waiver of his appellate and collateral attack rights is unenforceable and his sentence should be vacated, set aside or corrected.
Waivers of a right to appeal are valid if entered into knowingly and voluntarily unless enforcing such a waiver would result in a miscarriage of justice. United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001).
Petitioner claims that his waiver of the right to appeal is unenforceable because (1) he received ineffective assistance of counsel by his initial attorney, who did not sufficiently negotiate with the U.S. Attorney's Office, and a corporate attorney, who advised he cooperate with the FBI; (2) the government violated the plea agreement by failing to file a 5K motion requesting a downward departure from the sentencing guidelines; (3) his plea negotiations were based on a misapplication of 18 U.S.C. § 1956; and (4) his status as a Green Card holder makes him ineligible for sentence reductions he expected when agreeing to the plea.
Ashish Paul does not claim that he unknowingly or involuntarily entered the plea agreement. The language of the written agreement is clear,*fn2 and at Petitioner's plea hearing he acknowledged that he fully understood the plea agreement, and voluntarily agreed to its terms.*fn3
Petitioner does appear to contend that enforcement of his waiver of the right to appeal would work as a miscarriage of justice. In deciding whether an error claimed by Petitioner would work as a miscarriage of justice, courts consider the clarity of the error, its gravity, its character, the impact of the error on the defendant, the impact of the error on the government, and the extent to which the defendant acquiesced in the result. Khattak, 23 F.3d at 562. The Court evaluates each of Petitioner's arguments in turn.
1. Ineffective Assistance of Counsel
Petitioner claims that the waiver is unenforceable because he received ineffective assistance of counsel. (Pl. Motion, 5.) To prevail on such a claim, Petitioner must show that the claimed ineffective assistance directly affected the waiver or the plea itself. See Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000); Muhammad v. United States, 2010 WL 2771772, *4 (D.N.J. 2010). Petitioner argues that Mr. Sitarchuk, his initial attorney, provided ineffective assistance by inadequately negotiating with the government and by failing to timely recognize a conflict of interest, which rendered Mr. Paul unrepresented upon his arrest in 2006. (Pl. ...