The opinion of the court was delivered by: Wigenton, District Judge
Before the Court is William Walker's ("Petitioner" or "Walker") petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255*fn1 (the "Petition") (Docket Entry No. 1). The United States Government ("Government") opposes the Petition and disputes each of Petitioner's contentions (Docket Entry No. 9). For the reasons set forth below, the Court DENIES the Petition and GRANTS the Government's Motion to Dismiss.
From about 2002 to about November 2006, Walker was the Director of the Neighborhood Preservation Project for the City of New Brunswick's Planning and Economic Development Department. Walker's responsibilities included, but were not limited to, approving funding and contracts for the rehabilitation of substandard conditions in homes owned by qualified low-or-moderate-income owners within the City of New Brunswick. On February 7, 2008, a Grand Jury sitting in Newark, New Jersey returned a fifty-seven (57) count Superseding Indictment against Walker relating to his acceptance of corrupt payments from contractors in exchange for official favors. Specifically, the Superseding Indictment alleged that between January 2004 and September 2006, Walker routinely received corrupt cash payments from contractors doing business with the City of New Brunswick.
On April 22, 2008, the Petitioner entered into a plea agreement with the U.S. Attorney's Office in which he agreed to plead guilty to Counts One (extortion under color of official right) and Fifty-Five (filing a false tax return) of the Superseding Indictment. Significantly, the Petitioner and Government stipulated to a conditional waiver of appeal, in which Petitioner, among other things, waived his right to file any appeal or collateral attack that disputed the sentencing court's determination of the appropriate offense level if that offense level was equal to or less than 29.
On April 30, 2008, the Petitioner appeared before Judge Harold A. Ackerman, in this District, to enter his guilty plea. During the plea proceeding, the Court confirmed that the Petitioner was entering into the plea agreement knowingly and voluntarily and that the terms of the plea agreement, under certain conditions, included a waiver of his right to appeal or collaterally attack his sentence. On behalf of Petitioner, his attorney acknowledged that he understood and Mr. Walker made no objection. United States v. Walker, Crim. No. 07-627(HAA), (D.N.J. August 30, 2008).
On December 10, 2008, consistent with the Presentence Report and the terms of Petitioner's Plea Agreement, the Court found that Petitioner's Total Offense Level was 29 and sentenced Petitioner to an imprisonment term of 87 months for Count One and 36 months for Count Fifty-Five, imposed to run concurrently. Pursuant to the plea agreement, all other counts of the Superseding Indictment were dismissed.
On September 25, 2009, Walker timely filed the present petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 based upon "ineffective assistance of counsel."*fn2 In support of his petition, Walker argues that: (1) the evidence was only sufficient to support a 10-level increase under § 2B1.1(E) and not the 12-level increase he received under § 2B1.1(G); (2) the Petitioner did not have the sole decision-making authority and consequently, should not have received a 4-level increase pursuant to § 2C1.1(b)(3); (3) Petitioner was not a "public official" and consequently should not have had a Base Offense Level of 14; and (4) Petitioner's attorney never filed a direct appeal. See Docket Entry No. 1 at 4-5.
When considering a § 2255 petition, the Court must "accept the truth of the [Petitioner]'s factual allegations unless they are clearly frivolous on the basis of the existing record." United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005) (internal citations and quotation marks omitted). The Court is also required to hold an evidentiary hearing unless the § 2255 petition, along with the underlying case record, show conclusively that the Petitioner is not entitled to relief. Gov't of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). Furthermore, Rule 4(b) of the Rules Governing Section 2255 Proceedings provides: "If it plainly appears from the [Petition], attached exhibits and the record of prior proceedings that the [petitioner] is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the [petitioner]." Fed. R. Governing § 2255 Proceedings 4(b).
In his plea agreement dated April 2, 2008, Petitioner agreed to waive his right to file an appeal, collateral attack, writ or motion after sentencing, including a § 2255 motion, if "that sentence falls within or below the Guidelines range that results from the agreed total Guidelines offense level of 29," corresponding to 87-108 months incarceration. Plea Agreement at 9. Petitioner was sentenced to 87 months, which is the lowest end of that range. Therefore, Petitioner's right to file a § 2255 motion has been waived.
Under Third Circuit law, 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, 562 (3d Cir. 2001). In determining when the enforcement of a waiver of the right to appeal would result in such a miscarriage of justice, there is no "blanket rule prohibiting all review of certain otherwise valid waivers." See id. at 562-63 (refusing to "earmark specific situations" that would warrant invalidating such a waiver). Instead, the governing standard is whether "the error would work a miscarriage of justice." Id. at 563. It is an "unusual circumstance," however, when an "error amounting to a miscarriage of justice may invalidate the waiver." Id. at 562.
The Third Circuit has not yet determined whether its ruling in Khattak applies equally to a criminal defendant's waiver of the right to bring a motion pursuant to § 2255. See United States v. Wilson, 429 F.3d 455, 460 n.6 (3d Cir. 2005). However, in a non-precedential opinion, the Third Circuit indicated that a waiver of the right to collaterally attack a sentence is valid if it meets the Khattak test. See United States v. Perry, 142 F. App'x 610, 611-12 (3d Cir. 2005) (per curiam) (concluding that the district court's denial of petitioner's motion collaterally attacking his sentence was proper in light of petitioner's waiver of his right to pursue such a collateral attack). Likewise, courts in this District have regularly held such waivers as valid and enforceable under the Khattak standard. See, e.g., Simon v. United States, No. 05-5503(JLL), 2006 WL 3534600, at *5 (D.N.J. Dec. 7, 2006) (dismissing § 2255 petition on ground that petitioner's waiver of his right to file a § 2255 petition was valid under Khattak standard); Darr v. United States, No. 06-0608(JAG), 2006 WL 2645119, at *2 (D.N.J. Sept.14, 2006) (same); Prado v. United States, No. 05-0938(JBS), 2005 WL 1522201, at *2 (D.N.J. June 27, 2005) (same). The Court agrees with these holdings and finds ...