On January 31, 2007, a grand jury handed up a one (1)-count indictment charging petitioner with illegally reentering the United States in violation of 8 U.S.C. §§ 1326(a) and (b)(1).
In May 2007, pursuant to an order of the Honorable A. Kathleen Tomlinson, United States Magistrate Judge, Dr. William J. Ryan conducted a psychological assessment of petitioner to determine his competency to stand trial. Dr. Ryan diagnosed petitioner with malingering, polysubstance dependence and personality disorder NOS with antisocial personality features, as well as a history of depressive disorder, but found that he "possesses] a rational and factual understanding of the proceedings against him, does have the capacity to assist legal counsel in hisdefense, and * * * can rationally make decisions regarding legal strategy" and, thus, was competent to stand trial.
During court proceedings on July 10 or 11, 20071 , counsel appearing on behalf of petitioner at the conference requested that a second psychological evaluation be conducted of petitioner on the basis that both she and Randy Chavis ("Ms. Chavis" or "trial counsel"), petitioner's trial counsel, had "some serious concerns" about petitioner. (Transcript of July 11, 2007 proceedings ["July T."], at 2-3). The government did not object. (July T., at 2). Counsel indicated that they would consult with each other to arrange for the evaluation, (July T., at 2), and were directed to submit a proposed order regarding the second psychological evaluation. (Doc. No. 18). No representations were made during the conference about who would bear the cost of the second psychological evaluation, see July T.), and counsel never submitted a proposed order directing the second psychological evaluation.
On January 3, 2008, petitioner signed a plea agreement containing, inter alia, the following waiver:
"[Petitioner] agrees not to file an appeal or otherwise challenge by petition pursuant to 28 U.S.C. § 2255 or any other provision the conviction or sentence in the event that the Court imposes a term of imprisonment of 30 months or below. This waiver is binding without regard to the sentencing analysis used by the Court."
On that same date, petitioner withdrew his plea of not guilty and entered a plea of guilty to the sole count in the indictment. During the plea allocution, petitioner indicated, inter alia, that he attended school until the twelfth grade; that he received his GED while incarcerated at the Nassau County Correctional Center ("NCCC"); that he speaks both English and Spanish fluently, but is morecomfortable with English; that he understands English and is able to communicate in English; that he was under the care of a psychiatrist at the NCCC "for some mental disorders [he] suffer[s] from on a daily basis;" that he takes medication, specifically Paxil, Seroquel and Remeron, for sleeping, insomnia, depression, multiple personality disorder and posttraumatic stress disorder; that he did not recall taking any other type of medication within twenty-four (24) hours prior to the plea allocution; that he did not consume any alcoholic beverages; that he went over the plea agreement with his trial counsel and signed it; that he was pleading guilty voluntarily and of his own free will; and that no one had threatened, forced or coerced him into pleading guilty, or had promised him anything to encourage him to plead guilty other than what is contained in the plea agreement. (Plea at 3-7, 14-16). Trial counsel indicated, inter alia, that she was able to communicate with petitioner in English and had no question as to his ability to proceed with the proceedings in English. (Plea at 4). Petitioner was asked the following questions and gave the following responses:
THE COURT: * * * Do any of those [medications that petitioner takes] interfere with your ability to think?
THE [PETITIONER]: Not at all. Actually, they help me cope with daily activities.
THE COURT: My inquiry this morning is to make certain that you are capable mentally of understanding what you're doing by entering a plea of guilty. So my question is, do any of the medications that you take impair your ability to think clearly?
THE [PETITIONER]: Not at the moment they don't. I understand clearly what you're explaining to me, and I'm aware of the charges I'm being accused of.
* * *
THE COURT: Do you fell that your mind is clear as you stand here today?
THE [PETITIONER]: I feel it is.
* * *THE COURT; * * * Are you satisfied * * * with the representation you received thus far from Ms. Chavis?
THE [PETITIONER]: Yeah, she's been very helpful. And, you know, I give her an A for effort. She does what she's supposed to do.
THE COURT: She's an excellent attorney.
THE [PETITIONER]: Yes, she is. She's very good.
THE COURT: Do you feel you need additional time to discuss with Ms. Chavis the entry of a guilty plea?
THE [PETITIONER]: You know, we spent a lot of time on the phone speaking about it.
THE COURT: My question is, are you comfortable with the process at this point; or do you feel you need additional time to discuss entering a guilty plea?
THE [PETITIONER]: I'm comfortable now.
THE COURT: No additional time is necessary?
THE [PETITIONER]: I've had plenty of time to think about it. Thank you.
THE COURT: You said previously that you understand the charges [sic] in the indictment against you.
THE [PETITIONER]: That's correct.
THE COURT: And you've gone over it with Ms. Chavis.
THE [PETITIONER]: Yes, your Honor.
THE COURT: I'm going to ask the government to outline the indictment, ever so briefly.
MR. DURHAM: Your Honor, this is a single count indictment charging illegal reentry. The [petitioner] reentered the United States after being deported following a conviction of a felony, and he did not receive permission of the Secretary of Homeland Security before doing so.
THE COURT: Understood, sir?
THE [PETITIONER]: Yes.
THE COURT: Now, you understand that you have a right to continue your plea of not guilty and proceed to a trial in this case?
THE [PETITIONER]: I understand that right.
THE COURT: Do you understand that by pleading guilty you will be giving up your right to a trial and some other very valuable rights that go along with the trial?
THE [PETITIONER]: That's correct.
THE COURT: I'm going to go through those rights with you, because I have to be certain that you do understand those rights that you're giving up. At any trial you would be presumed to be innocent, and you would not have to prove that you were innocent. Do you understand that?
THE [PETITIONER]: That's correct.
THE COURT: Do you understand that under our system of law, the burden would be entirely upon the government to prove you guilty beyond a reasonable doubt?
THE [PETITIONER]: Yes, your Honor.
THE COURT: And that if the government failed to meet the burden of proof, a jury would have to find you not guilty?
THE [PETITIONER]: That's correct.
THE COURT: Do you also understand that you are giving up that right by pleading guilty at this time?
THE [PETITIONER]: I understand that.
THE COURT: Do you further understand that by continuing your plea of not guilty, you would be entitled, under the Constitution, to a speedy trial?
THE [PETITIONER]: That's correct.
THE COURT: And a public trial?
THE [PETITIONER]: Yes, your Honor.
THE COURT: Before a jury?
THE [PETITIONER]: That's correct.
THE COURT: And with the assistance of your attorney?
THE [PETITIONER]: Yes.
THE COURT: And do you understand that you are giving up, by pleading guilty, your right to a trial which is speedy and public with the assistance of counsel and before a jury?
THE [PETITIONER]: Yes, that's correct.
THE COURT: Do you further understand that at any trial where the government would, as I told you, have the burden of proving you guilty beyond a reasonable doubt, they would be required to bring in any witnesses to testify in your presence?
THE [PETITIONER]: That's correct.
THE COURT: And that your attorney would have the opportunity to cross-examine or question those witnesses?
THE [PETITIONER]: Yes.
THE COURT: And do you understand that you are giving up that right as well by pleading guilty?
THE [PETITIONER]: That's correct.
THE COURT: And do you further understand that at any trial Ms. Chavis would have the opportunity, if she thought it appropriate to do so, to bring in any evidence in your behalf?
THE [PETITIONER]: Yes, your Honor.
THE COURT: But you would be under no obligation to put in a case at all because of your presumption of innocence?
THE [PETITIONER]: That's correct.
THE COURT: Do you also understand that Ms. Chavis could raise objections to any evidence brought in by the government?
THE [PETITIONER]: Yes, your Honor.
THE COURT: And you're giving up that right as well by pleading guilty?
THE [PETITIONER]: That's right.
THE COURT: Do you further understand that at any trial you would have the opportunity to testify in your own behalf if you chose to do so?
THE [PETITIONER]: That's correct.
THE COURT: You would be under no obligation to do so, because you have an absolute right against self-incrimination.
THE [PETITIONER]: Yes, that's correct.
THE COURT: Do you understand you're giving up that right by pleading guilty?
THE [PETITIONER]: Yes, I understand.
THE COURT: Indeed, in a few moments, I'll be asking you what you did that makes you guilty. And, therefore, you are giving up that right not
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