MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
EDWARD B. ATKINS, Magistrate Judge.
On February 17, 2011, federal agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives executed a search warrant at Victor Scharstein's residence in Covington Kentucky. [R. 29]. From his residence they recovered a semi-automatic rifle, a fully assembled Molotov cocktail, and assorted ammunition. [R. 29]. On the same date, agents executed search warrants at his place of business and several storage units rented in his name, all in Covington, Kentucky. They recovered 13 firearms, over 23, 000 rounds of ammunition, five (5) units of body armor, and seven (7) display fireworks. [R. 29].
A Grand Jury sitting in Covington, Kentucky, returned a single count indictment on March 10, 2011, charging Scharstein with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). [R. 12]. Pursuant to a plea agreement with the United States, he entered a plea of guilty to the charge on June 27, 2011, before United States District Judge Danny Reeves. [R. 28, 40]. In that plea agreement, Scharstein agreed to waive "the right to appeal and the right to attack collaterally the guilty plea, conviction, and sentence, including any order of restitution." [R.40]. Scharstein was sentenced to thirty-seven (37) months in prison to be followed by two (2) years of supervised release. [R. 44]. Although he filed a notice of appeal [R. 46], he moved to voluntarily dismiss the appeal, a request which was granted on July 17, 2012 [R. 65]. On February 25, 2013, through counsel he filed the instant motion under 28 U.S.C. § 2255 seeking to vacate his guilty plea, conviction and sentence. [R. 72]. Although styled as "GROUND ONE" in his motion, Scharstein in effect presents three arguments: first, that had counsel given proper advice, he would have "proceeded to file a suppression motion and if the suppression motion had been granted, the government's case would have been subject to dismissal." [R. 88]; second, that "[c]ounsel should not have called Petitioner as a witness without prior to the hearing preparing him to testifying [sic] at the sentencing hearing relative to a four-(4) level enhancement based upon the number of firearms possessed. Petitioner's indictment was based upon possession of a single firearm." [R. 72]; and, third, that "[c]ounsel's failure to demand a jury determine the factual dispute regarding the number of firearms possessed at the sentencing hearing, resulting in a four (4) level guideline increase." [R. 72].
Because the first claim might arguably go to the validity of Scharstein's guilty plea, the Court will address its merits. However, for the reasons discussed below the Court has determined that Scharstein's plea was valid because it was knowing and voluntary, and this claim provides him with no relief. In addition, the second and third claims, which present arguments regarding alleged sentencing errors, are barred by his waiver of right to collaterally attack his guilty plea, conviction and sentence, and need not be addressed further.
WHETHER THE PLEA WAS KNOWING AND VOLUNTARY
Although he waived his right to collaterally attack his guilty plea, conviction and sentence, Scharstein now alleges that his trial counsel denied him the benefit of a meritorious motion to suppress, which would allegedly have "gutted the government's case and would have resulted in dismissal of the charge against him". [R. 88]. As a result, Scharstein contends that his guilty plea was "unknowing, involuntary and, entirely the result of his trial counsel relying upon his gut reaction to the affidavit in support of the search warrant without any challenge to the alleged facts contained in the affidavit." [R. 88]. Scharstein alleges that had counsel given proper advice, he would have "proceeded to file a suppression motion and if the suppression motion had been granted, the government's case would have been subject to dismissal." [R. 88]. He seeks an order vacating his guilty plea, conviction and sentence. For the reasons discussed below Scharstein's plea was not unknowing or involuntary, and it was not the product of ineffective assistance of counsel. His motion in this case provides no relief.
Scharstein does not dispute that he was informed of and understood the terms of the waiver provision contained within his plea agreement, which states: "[t]he Defendant waives the right to appeal and the right to attack collaterally the guilty plea, conviction, and sentence, including any order of restitution." [R.40]. Accordingly, his waiver of the right to collateral attack is binding and would ordinarily preclude the Court from reviewing his § 2255 motion. Watson , 165 F.3d at 489. Despite the binding waiver, claims that "go to the very validity of [the] guilty plea" are nevertheless cognizable in a habeas corpus motion. In re Acosta , 480 F.3d 421, 422 (6th Cir. 2007). A guilty plea is valid only if it is made knowingly and voluntarily. Parke v. Raley , 506 U.S. 20, 28 (1992). "The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Id. at 29 (quoting North Carolina v. Alford , 400 U.S. 25, 31 (1970)). Accordingly, any claims challenging either the voluntariness or intelligence of Scharstein's guilty plea must be addressed by the Court.
Scharstein asserts one claim that arguably goes to the validity of his guilty plea, that is, its knowing and voluntary nature. Specifically, he claims that his attorney failed to conduct a reasonable investigation that would have revealed false and stale information in the affidavit upon which the search warrants were based. Had counsel known, counsel would have informed Scharstein of the false, material information and would not have advised him to plead guilty, instead bringing a challenge to the warrants. Therefore, Scharstein contends, his plea was unknowing and involuntary.
A guilty plea may be found involuntary or unintelligent if it was induced by the ineffective assistance of counsel. Hill v. Lockhart , 474 U.S. 52, 56 (1985). A "defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the" range of competence demanded of attorneys in criminal cases. Id. at 56-57. The validity of a plea may be challenged due to a lack of reasonably competent advice which negates the voluntary and intelligent character of the guilty plea. See Bradshaw v. Stumpf , 545 U.S. 175, 186 (2005).
A criminal defendant is entitled to effective representation by counsel at all critical stages of the proceedings, including plea negotiations. See King v. Bobby , 433 F.3d 483, 490 (6th Cir. 2006). To prevail on a claim of ineffective assistance of counsel based on counsel's advice during the plea process, a defendant must establish two elements: (1) counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's errors, the defendant would have pleaded differently. Griffin v. United States , 330 F.3d 733, 736-37 (6th Cir. 2003) (citations omitted). With respect to the first element, the proper measure of attorney performance is simply reasonableness under prevailing professional norms. Strickland v. Washington , 466 U.S. 668, 688 (1984). Under the second element, the defendant must show merely that there is a reasonable probability that, but for his attorney's error, he would not have pled guilty and insisted on going to trial. Griffin , 330 F.3d at 737. "Defendants alleging the ineffective assistance of counsel bear a heavy burden of proof.'" Pough v. United States , 442 F.3d 959, 966 (6th Cir. 2006) (citing Whiting v Burt , 395 F.3d 602, 617 (6th Cir. 2005)).
A. Failure to learn of and advise of false and stale information in affidavit
Scharstein claims that he would not have pled guilty had his attorney conducted the most basic investigation into the case and learned that information in the affidavit regarding Jesse Helphenstine was both false and state, which would have "gutted the government's case".[R. 88].
The record in this case reflects that on February 16, 2011, search warrants were issued upon the application of Rusty Cox, a Special Agent with the ATF. [R. 80]. That affidavit, made up of thirty-three paragraphs, contains information obtained from multiple sources. A single paragraph included the following information regarding Helphenstine:
3. On or about April 22, 2009, affiant received a phone call from Jesse Helphenstine. Helphenstine advised that he had been employed at Red Express and had recently been fired. Helphenstine described the owner of Red Express, Victor Scharstein, as a paranoid person who collected guns even though he was a convicted felon. Helphenstine explained that Scharstein had been arrested by ATF and sent to prison. Helphenstine said Scharstein owned Red Express and had a sign on the flag pole that said everyone was welcome except ATF. Helphenstine explained that he was calling ATF because, while he was an employee, he purchased firearms for the company at Scharstein's request. According to Helphenstine, he purchased 2 handguns and 5 or 6 rifles for the business. He said he paid cash for two of the firearms and used a company check to pay for the others. He said he was instructed to purchase the firearms by Scharstein just in case something happens. Helphenstine could not recall where he purchased the firearms, but advised that another employee, ...