WALTER J. GEX, III, Senior District Judge.
THIS CAUSE comes before the Court on the motions filed by Gregory Brent Warr [Warr] to vacate [148, 149] his conviction pursuant to 28 U.S.C. § 2255. Also pending before the Court is the motion filed by the United States to Dismiss  the motions to vacate and to enforce the plea agreement in this case. After due consideration of the record in this cause, the Court finds as follows.
Warr contends that the Federal Emergency Management Agency [FEMA] never determined that he was not eligible to receive the funds he was alleged to have stolen. [148, p. 3.] He claims such a determination would have been critical to his decision to enter a plea of guilty. ( Id. ) He further contends that the Mississippi Development Authority [MDA] determined in similar cases that an applicant was entitled to MDA benefits and such a determination in his case would be a critical factor in his decision whether to enter a plea of guilty. [148, p. 4.] He contends he did not discover this information until 2011. [148, p. 7.]
Warr entered a guilty plea on September 25, 2009, to Count Seven of the second superceding indictment which charged him with a violation of 18 U.S.C. § 641. [82, p. 6.] According to the second superceding indictment, Warr "did steal, purloin, and knowingly convert to their own use greater than $1, 000.00 in funds belonging to the United States of America by filing a claim for Federal Emergency Management Agency disaster assistance benefits and receiving such disaster assistance benefits to which they were not entitled." ( Id. )
Warr was sentenced to a term of three years probation; restitution in the amount of $9, 558.00 payable to FEMA; and a mandatory special assessment of $100.00. [136.] Special conditions of supervision imposed by the Court included a provision that Warr provide the United States Probation Office [USPO] with access to any requested financial information; that he complete one hundred hours of community service work within the first six months of supervision at specific times agreed upon with the approved community service agency and the USPO; that Warr provide verification of that service work to the USPO; and that Warr pay restitution imposed by the Judgment, which was entered in this case on September 25, 2009. [136, p. 3.] No appeal was filed in this case.
Warr asserts that his guilty plea was involuntary and that the resulting conviction should be set aside. [149, p. 2.] Warr contends that the United States failed to reveal material facts prior to the plea in violation of his right to due process under the Fifth Amendment. [149, p. 2.] He claims that he is actually innocent of the crime charged in the second superceding indictment to which he pleaded guilty. [149, p. 3.]
At the time Warr's § 2255 petition was filed on September 21, 2012, Warr was serving the term of probation imposed by the Court. [136; 149, p. 1.] Warr contends that he was "indicted for conduct that was not criminal." [150, p. 1.] He claims that "new evidence" shows that the United States "provided inaccurate information to Warr and to this Court regarding his eligibility for assistance" and "did not disclose... evidence that was exculpatory" as required by the Discovery Order and constitutional law. ( Id. )
Warr states that when offered the "opportunity to secure a dismissal of the case against his wife, Warr agreed to plead guilty." [150, p. 2.] Warr asserts that in late 2011, "Warr became aware of Congressional attention to FEMA payments to Katrina victims." [150, p. 7.] Warr asserts that after researching the issue, he discovered that "Congress expressed concern about the fairness of FEMA collecting overpayments from disaster survivors when the overpayment was the result of FEMA error." ( Id. ) Warr contends that "FEMA never determined that the Warrs were ineligible for the disaster benefits and this information was never disclosed to Warr prior to the plea of guilty. Furthermore, MDA, which also was responsible for executing federal disaster benefits following Katrina, had determined that the Warrs in fact were eligible and the government knew this." ( Id. )
Warr claims that his motion is timely filed under Federal Rule of Criminal Procedure 33(a). ( Id. ) He claims that the United States was obligated under Brady  and Giglio  to provide him with exculpatory and impeachment material as soon as discovered. [150, p. 8.] Warr claims that had he known on September 25, 2009, "that FEMA had not found him ineligible for benefits, he would not have entered a plea of guilty to Count Seven." [150, p. 11.] Warr claims his plea was involuntary. [150, p. 18.]
In the alternative, Warr asserts that he should be granted a new trial. [150, p. 8.] He claims that the United States violated the Due Process clause of the Fifth Amendment in his case. [150, p. 19.] He cites several other cases in which individuals were awarded MDA grants under circumstances similar to his. [150, p. 20.] Warr claims that the plea agreement is "null and void" because the United States did not "live up to its obligation to inform the Court as to the nature and extent of Defendant's activities with respect to this case.'" [150, pp. 23, 24.]
Warr claims that he did not procedurally default his actual innocence claim because he was not aware of the information regarding his and others' eligibility determinations prior to filing his habeas petition. [150, p. 25.]
The United States asserts that the plea waiver forecloses any claim for relief under 28 U.S.C. § 2255. [154, p. 2.] The claim that the United States withheld information subject to disclosure is not cognizable in the context of a guilty plea, according to the United States. [154, pp. 3-4.] The United States contends that the agreement to waive post-conviction relief contained in Warr's plea agreement is valid. [154, p. 6.] According to the United States, Warr was not denied the benefits of his plea and the United States did not breach the plea agreement. [154, p. 7.]
Warr did not appeal his conviction and such a failure generally results in the waiver of collaterally raised claims. See, e.g., United States v. Patten, 40 F.3d 774, 776 (5th Cir. 1994) ( per curiam ), cert. denied, 515 U.S. 1132 (1995). After a defendant has exhausted or waived any right to appeal, "we are entitled to presume that [the defendant] stands fairly and finally convicted." United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) ( en banc ), cert. denied, 502 U.S. 1076 (1992) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)). A convicted defendant can only challenge his conviction on issues of constitutional or jurisdictional magnitude after it is presumed final. Shaid, 937 F.2d at 232.
I. Timeliness of the Petition
Under 28 U.S.C. § 2255, a petitioner may file a habeas corpus petition claiming that a sentence imposed by a federal court "was imposed in violation of the Constitution or the laws of the United States." A petitioner has one year from:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
>(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255.
If a petitioner fails to file a § 2255 petition within the applicable one-year period, the Court must dismiss the petition as untimely unless "rare and exceptional circumstances" warrant the equitable tolling of this period. Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998).
A prisoner's conviction becomes final generally upon the expiration of direct review or the time for seeking direct review. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). When a federal prisoner fails to file a notice of appeal from his conviction (in other words, when he fails to pursue the direct appeal process), the conviction becomes final for purposes of § 2255 upon the expiration of the 10-day period for filing a direct appeal. United States v. Plascencia, 537 F.3d 385, 388-9 (5th Cir. 2008).
Here, the judgment in this case was entered on September 25, 2009. [136.] Because no appeal was taken on the judgment, the conviction became final on October 5, 2009, ten days after the judgment was entered. Plascencia, 537 F.3d at 388-9. Accordingly, Warr had until October 5, 2010, to file his petition under § 2255. Because Warr not file his § 2255 motion until nearly two years beyond this date, on September 21, 2012, the motion is untimely. [149.]
Warr claims he was not aware of the circumstances which support his claim that he was wrongly convicted until late 2011. [150, p. 7.] He provides no information regarding why he did not immediately file a motion at the time of his alleged discovery of his innocence. The Court concludes that there are no exceptional circumstances present in this case to justify an equitable tolling of the limitations period for filing a habeas petition. The Court, therefore, concludes that Warr's claim is time barred. Out of an abundance of caution, the Court will further consider the petition as follows.
II. New Trial
Rule 33 of the Federal Rules of Criminal Procedure, which authorizes motions for new trial, applies only to cases in which a trial, either to the court or to a jury, has taken place. Here defendant pleaded guilty; there was no trial. There is no basis to award a new trial in this case, because "the validity of a guilty plea cannot be questioned by way of a motion for new trial." See United States v. Prince, 533 F.2d 205, 208 (5th Cir. 1976). The Court concludes that any motion for new trial should be denied.
III. Procedural Default
The Court notes that the Supreme Court and the Fifth Circuit have emphasized repeatedly that "a collateral challenge may not do service for an appeal, " in other words, a defendant cannot forego an appeal in anticipation of filing a § 2255 petition. Shaid, 937 F.2d at 231, citing Frady, 456 U.S. at 165. Following a conviction and exhaustion or waiver of the right to direct appeal, federal courts presume a defendant stands fairly and finally convicted. United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir.) reh. denied (1998) citing Shaid, 937 F.2d at 231-2; Frady, 456 U.S. at 164. As a result, review under § 2255 is ordinarily limited to questions of constitutional or jurisdictional magnitude. Cervantes, 132 F.3d at 1109; Shaid, 937 F.2d at 232; Hill v. United States, 368 U.S. 424, 428 (1962).
If a movant challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows cause for his procedural default and actual prejudice resulting from the error or that the constitutional violation has probably resulted in the conviction of one who is actually innocent. United States v. Bowes, 139 F.3d 900 (5th Cir. 1998). To satisfy the "cause" standard, a movant must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996). Objective factors that constitute cause include interference by officials that make compliance with the procedural rule impracticable, a showing that the factual or legal basis for the claim was not reasonably available to counsel at the prior occasion, and ineffective assistance of counsel in the constitutional sense. Id. To satisfy the "prejudice" standard, a movant must show that the error he alleges "worked to his actual and substantive disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170.
Here, Warr claims he discovered that other individuals allegedly meeting the same criteria as those present in his claim were not prosecuted. Although he asserts that this shows that his actions were not criminal, the Court is not convinced of this argument. See i.e. United States v. Breland, 366 Fed.Appx. 548 (5th Cir. 2010).
"Where the basis of a... claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for a procedural default." Engle v. Isaac, 456 U.S. 107, 134 (1982). In addition, Warr fails to establish actual innocence. "[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 623. Warr's "proof" of actual innocence consists of arguments that other individuals were not charged with a crime under similar circumstances to his situation. Nowhere in his papers does Warr assert that he is, as a factual matter, actually innocent of the charges in the second superceding indictment to which he entered a guilty plea. Warr has not established cause for his default or actual innocence, so the Court cannot address his procedurally defaulted claims.
As part of the plea bargain agreement with the United States, Warr waived the right to appeal his conviction and to seek post conviction relief in the Plea Agreement. [133, p. 6, SEALED.] The right to appeal a criminal conviction is a statutory right, not constitutional. Abney v. United States, 431 U.S. 651, 656 (1977). Plea bargain agreements are "contractual in nature and are to be construed accordingly." United States v. Moulder, 141 F.3d 568, 571 (5th Cir. 1998). Statutory rights, including the right to appeal, can be waived as part of a plea bargaining agreement, and an informed and voluntary waiver of post-conviction relief will bar such relief under the proper circumstances. See United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992); United States v. White, 307 F.3d 336, 339 (5th Cir. 2002), cert. denied 522 U.S. 882. The Court finds that Warr waived his right to seek post-conviction relief in the plea agreement, and for this reason his § 2255 petition should be denied. Out of an abundance of caution, however, the Court will address Warr's arguments.
V. Voluntary Plea
Federal courts must uphold a guilty plea challenged in a habeas petition if the plea was knowing, voluntary and intelligent. Montoya v. Johnson, 226 F.3d 399, 405 (5th Cir. 2000), cert. denied 532 U.S. 1067 (2001); James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). The United States Supreme Court has held that by entering a plea of guilty, a defendant waives several federal constitutional rights. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Courts have consistently held that express articulation and waiver of each of these rights are not required; however, the record must show that the plea was voluntary. Neyland v. Blackburn, 785 F.2d 1283, 1287 (5th Cir.), cert. denied 479 U.S. 930 (1986). "A guilty plea is involuntary if it is made in ignorance of its consequences, including the length of any possible sentence." United States v. Ammirato, 670 F.2d 552, 555 (5th Cir. 1982) (citing Cheely v. United States, 535 F.2d 934, 935 (5th Cir. 1976)). "If the record shows the defendant understood the charge and its consequences, ' this Court will uphold a guilty plea as voluntary even if the trial judge failed to explain the offense." James, 56 F.3d at 666 (quoting Davis v. Butler, 825 F.2d 892, 893 (5th Cir. 1987)). The "consequences" of a guilty plea in the context of sentencing "mean only that the defendant must know the maximum prison term and fine for the offense charged." Barbee v. Ruth, 678 F.2d 634, 635 (5th Cir. 1982), cert. denied 459 U.S. 867.
The record contains the following exchange from the plea hearing:
THE COURT: All right. Mr. Warr, Mr. Owen, come on around, please. You are Gregory Brent Warr, the defendant in this case?
THE DEFENDANT: Yes, sir.
THE COURT: And you are standing before the Court with your attorneys?
THE DEFENDANT: Yes, sir.
THE COURT: If at any time during this hearing you don't understand what the Court is asking or you need to consult with your attorneys for any other reason, you just let me know; okay?
THE DEFENDANT: Yes, sir.
THE COURT: Now, the Court is informed that you wish to change your previously entered plea of not guilty to a plea of guilty to count seven of the second superseding indictment. Is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: Before I can accept your plea, I must be assured that your plea is a valid plea and that you are in fact guilty. In order to do this, I must ask you a number of questions. Those questions must be answered truthfully. I will accordingly ask the clerk to swear you to tell the truth.
THE COURT: Do you understand now you have been sworn, and if you give untruthful answers to any questions I ask you, you could later be prosecuted for perjury for such untruthful answers?
THE DEFENDANT: Yes, sir.
THE COURT: How old are you?
THE DEFENDANT: Forty-six.
THE COURT: How much schooling did you complete?
THE DEFENDANT: Four years of college.
THE COURT: Can you read and write?
THE DEFENDANT: Yes, sir.
THE COURT: Have you taken any drugs of any type, prescription or nonprescription, or consumed any alcoholic ...