MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, District Judge.
This matter is presently before the Court on defendant Eulet King's pro se petition to vacate her sentence pursuant to 28 U.S.C. § 2255 (Doc. # 1528) and the Government's motion for enforcement of defendant's plea agreement (Doc. # 1535). For the reasons set forth below, the Court grants in part and denies in part the Government's motion to enforce defendant's plea agreement. Defendant's petition is dismissed in part and denied in part.
On March 23, 2011, defendant entered into a plea agreement and pleaded guilty to one count of a conspiracy to distribute and possess with intent to distribute marijuana in violation of 21 U.S.C. § 846, and one count of a conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). In the plea agreement, the parties agreed to a sentence of 120 months, the statutory minimum sentence, pursuant to Fed. R. Crim. P. 11(c)(1)(C). The agreement contained a lengthy statement of the factual basis for the plea of guilty. The agreement also contained the following waiver of defendant's right to appeal or to collaterally attack her sentence:
9. Waiver of Appeal and Collateral Attack. The defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, the defendant's conviction, or the components of the sentence to be imposed herein including the length and conditions of supervised release. The defendant is aware that Title 18, U.S.C. § 3742 affords a defendant the right to appeal the conviction and sentence imposed. By entering into this agreement, the defendant knowingly waives any right to appeal a sentence imposed which is within the guideline range determined appropriate by the court. The defendant also waives any right to challenge a sentence or otherwise attempt to modify or change her sentence or manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under Title 28, U.S.C. § 2255 [except as limited by United States v. Cockerham , 237 F.3d 1179, 1187 (10th Cir. 2001)], a motion brought under Title 18, U.S.C. § 3582(c)(2) and a motion brought under Fed. R. Civ. Pro [ sic ] 60(b). In other words, the defendant waives the right to appeal the sentence imposed in this case except to the extent, if any, the court departs upwards from the applicable sentencing guideline range determined by the court. However, if the United States exercises its right to appeal the sentence imposed as authorized by Title 18, U.S.C. § 3742(b), the defendant is released from this waiver and may appeal the sentence received as authorized by Title 18, U.S.C. § 3742(a). Notwithstanding the forgoing [ sic ] waivers, the parties understand that the defendant in no way waives any subsequent claims with regards to ineffective assistance of counsel or prosecutorial misconduct.
(First set of brackets in original.) The plea agreement also concluded with the following provision:
15. No Other Agreements. The defendant has had sufficient time to discuss this case, the evidence, and this agreement with the defendant's attorney and defendant is fully satisfied with the advice and representation provided by defendant's counsel. Further, the defendant acknowledges that she has had the plea agreement read to her, understands it and agrees it is true and accurate and not the result of any threats, duress or coercion. The defendant further understands that this plea agreement supersedes any and all other agreements or negotiations between the parties, and that this agreement embodies each and every term of the agreement between the parties. The defendant acknowledges that the defendant is entering into this agreement and is pleading guilty because the defendant is guilty and is doing so freely and voluntarily.
Defendant also stated in her plea petition that she offered her plea freely and voluntarily and that her plea was not the result of any force or threats against her. She stated in the petition that she was satisfied with the advice and assistance of her attorney, and that she did do the acts set forth in the plea's factual basis and was guilty of the charged offenses.
The Court confirmed the voluntariness of the plea in its colloquy with defendant at the plea hearing. In particular, in that colloquy defendant stated under oath that she was satisfied with her counsel's representation and advice; that she understood that if the Court accepted the plea, it would sentence her to 120 months in accordance with the agreement; that no one had forced or threatened her into pleading; that it was her decision to plead; that she did do the acts set forth in the factual basis in the plea agreement (she volunteered in the colloquy that, although she did not understand at first, later she did "realize what [her co-conspirator] was doing" with respect to the drug-trafficking activities); and that she was entering a plea of guilty freely and voluntarily and because she was in fact guilty of the charges. With respect to the waiver of the right to an appeal or collateral attack, defendant's counsel stated to the Court that he had explained to defendant that she waived any appellate rights "except for the claim that I myself or [the prosecutor] did something wrong in this case." The prosecutor agreed with that characterization of the plea agreement. Defendant then stated that she understood that provision of the plea agreement. Later in the colloquy, the Court returned to the waiver in Paragraph 9 of the plea agreement and explained for defendant what a collateral attack is; defendant again stated that she understood and was willing to give up the right to an appeal or collateral attack to the extent provided in the agreement. At the conclusion of the colloquy, based on its observation of defendant and her responses, the Court found that defendant's plea was knowing and voluntary, and it accepted both her plea of guilty and the Rule 11(c)(1)(C) plea agreement.
On July 18, 2011, the Court conducted an ex parte hearing on defendant's pro se motion to withdraw her plea. Defendant related, as the basis for her motion, that a detective or some other governmental agent told her on the day of her plea that she should accept the plea agreement, and that her counsel had not investigated that occurrence sufficiently. Defendant also stated that she had, before that date, discussed the possibility of a plea agreement with her counsel. The Court concluded that the conduct described by defendant, if it did occur, did not constitute coercion. The Court denied defendant's motion for new counsel, and thus denied the pro se motion to withdraw the plea, without prejudice to the filing of such a motion by counsel if deemed appropriate. Counsel declined to file such a motion.
On August 30, 2011, the date of sentencing, the Court again conducted an ex parte hearing to address defense counsel's motion to withdraw from the case, based on defendant's desire for new counsel. Counsel explained that defendant believed that he had rendered ineffective assistance with respect to the plea agreement, based in part on defendant's belief that she should be eligible for a sentence below the 10-year mandatory minimum. Counsel related that the Government did not believe that defendant had been truthful about the extent of her involvement in the drug-trafficking organization. The Court denied counsel's motion to withdraw. The Court then adopted without change the presentence report, which calculated a sentencing range of 120 to 135 months, and the Court imposed a sentence of 120 months, the mandatory minimum sentence, in accordance with the plea agreement. Defense counsel indicated that he had made two objections to the presentence report relating to the calculation of the appropriate guidelines range, but the Court found those objections to be moot in light of the parties' agreement to a specific term of imprisonment.
On direct appeal, defendant challenged the Court's denial of her motion to withdraw her plea and the motions for new counsel. On June 22, 2012, the Tenth Circuit dismissed the appeal and granted the Government's motion to enforce the plea agreement's appellate waiver provision. The Tenth Circuit concluded that the issues fell within the scope of the waiver; that her waiver was not coerced but was knowing and voluntary; and that enforcement of the waiver would not result in a miscarriage of justice. The Tenth Circuit declined to reach the merits of any claim of ineffective assistance of counsel. On October 17, 2012, defendant filed her pro se petition for relief pursuant to Section 2255.
A. Issues Other Than Ineffective Assistance of ...