The opinion of the court was delivered by: Magistrate Judge King
ORDER and REPORT AND RECOMMENDATION
Petitioner, a federal prisoner, brings the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §2255. This matter is before the Court on the instant motion, respondent's answer, petitioner's reply, and the exhibits of the parties, as well as on petitioner's motion to dismiss the indictment, Doc. No. 86. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's request for an evidentiary hearing, made in his motion to dismiss the criminal case, Doc. No. 86, is DENIED.
On April 19, 2006, pursuant to the terms of his negotiated plea agreement, petitioner pled guilty to possession with intent to distribute crack cocaine and possession of a firearm in furtherance of a drug trafficking crime, in violation of 21 U.S.C.§§ 841(a)(1), (b)(1)(C), and 18 U.S.C. §924(c). Doc. Nos. 52, 56, 57. On September 28, 2006, the Court sentenced petitioner to an aggregate term of 103 months imprisonment. Doc. Nos. 73, 75. Petitioner did not appeal.
On September 28, 2007, petitioner filed the instant pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §2255. He asserts the following claim:
Ineffective assistance of counsel.
Defense counsel's deficient performance rendered the trial proceedings constitutionally inadequate, in violation of defendant's Sixth Amendment right to effective assistance of counsel and his fifth Amendment right to due process of law, the right to appeal.
It is the position of the respondent that this claim is without merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner asserts that he was denied the effective assistance of counsel because his attorney coerced him into waiving his right to appeal. Petitioner alleges that he wanted to file an appeal, but that his attorney told him that if he did he "could get more time." Petition, at 7. According to petitioner, he therefore indicated at sentencing that he did not want to appeal; however, he learned at prison that his attorney had lied to him. Id.
In response to petitioner's allegation, respondent has provided the affidavit of Keith A. Yeazel, petitioner's defense counsel, which states in relevant part as follows: I was appointed as substitute counsel after Mr. Brown filed a motion to withdraw his guilty pleas to Counts 4 and 5 of the indictment.
Mr. Brown had previously pleaded guilty pursuant to a plea agreement.... negotiated by prior counsel [that] provided that Mr. Brown would serve a term of 42 months on Count 4, involving possession with the intent to distribute cocaine base consecutive to a term of 60 months on Count 5 involving the possession of a firearm during and in relation to a drug trafficking offense. According [to] the Final Presentence Investigation Report, absent a Rule 11(c)(1)(C) agreement, Mr. Brown was subject to an advisory Guideline sentence of 121 to 151 months on Count 4 consecutive to a 60 month sentence on Count 5. In my opinion, this plea agreement saved Mr. Brown from serving an additional 5 years in prison.
After reviewing the entire file maintained by prior counsel and speaking with AUSA Affeldt concerning the government's position regarding the continuing viability of the plea agreement, I met with Mr. Brown on September 15, 2006 and discussed his options. I explained to Mr. Brown that my discussions with AUSA Affeldt indicated the previously negotiated plea agreement was still operational if he dropped his request to withdraw his plea agreement with the additional provision that the agreed sentence be extended by 1 month. Mr. Brown also ...