Full opinion text
OPINION AND ORDER JAMES P. JONES, Chief Judge. Agnes Holbrook, a federal inmate, brings this pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.A. § 2255 (West Supp.2008). She challenges her convictions and sentence for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C.A. § 922(g)(9) (West 2000), and making a false statement in order to obtain a firearm in violation of 18 U.S.C.A. § 922(a)(6) (West 2000). The government has responded and asserts that the defendant’s § 2255 motion should be denied as to all claims. Upon review of the record, I find that one of the claims must be set down for an evidentiary hearing and the remainder of the claims denied. I A. Facts Surrounding Offenses. In addressing Holbrook’s initial appeal, the United States Court of Appeals for the Fourth Circuit summarized the facts in her case as follows: The charges against Holbrook in this case arise out of the March 24, 2001, shooting death of her husband, Larry. In the months prior to March 2001, Holbrook and Larry had separated and had become embroiled in a bitter divorce. Both had filed motions for protective orders against each other on numerous occasions, Larry had started a relationship with another woman, Stephanie Gibson, and he had told several individuals that he was removing Holbrook as a beneficiary of his government benefits and life insurance policies. On February 19, 2001, Holbrook purchased a .22 caliber pistol from a federally licensed firearms dealer in Pennington Gap, Virginia. In filling out the required screening paperwork, Holbrook indicated that she never had been convicted of a misdemeanor crime of domestic violence, an offense that disqualifies persons from possessing firearms, see 18 U.S.C.A. § 922(g)(9). In fact, she previously had been convicted of assaulting her former husband, Clay Phillips, with a knife. Because Holbrook committed this prior offense when her name was Agnes Bernice Phillips, the record check performed by the dealer did not reveal the conviction, and the dealer sold her the firearm. After test-firing the pistol several days after purchasing it, Holbrook determined that the gun was in need of repairs and had a friend return it to the dealer. A few weeks later, on March 5, 2001, Holbrook lost her job. Her employer, the Department of Social Services for Lee County, Virginia, forced her to resign after discovering that she had lied on her job application about her criminal history. Holbrook believed that her employer had made this discovery as the result of a tip from Larry. That same day, Holbrook set out to acquire a second firearm. Almost immediately after resigning from work, Holbrook called a friend, Jason Gibson (the estranged husband of Larry Holbrook’s paramour, Stephanie Gibson), to inquire about obtaining a firearm. Gibson eventually took Holbrook to the residence of his cousin, Steve Wuderman, who sold Holbrook a .357 magnum handgun. Wuderman was not a licensed firearms dealer. Holbrook test-fired the weapon, made payment arrangements, and left the Wuderman residence with Gibson. On March 24, 2001, Holbrook used the .357 magnum to shoot and kill Larry in a dispute in the bedroom of her home. The precise details of the shooting remain somewhat a mystery because Holbrook was the only witness to the shooting, and, as explained below, her version of events has changed significantly over time. Some facts about the events of that date, however, are undisputed. First, record evidence indicates that on the date of the shooting, Larry had been seen in a light-hearted mood, and he had told someone that he was going to pick up his kids to go play ball. Second, although it is unclear from the evidence why Larry drove to Holbrook’s residence on March 24, the evidence does show that Larry had a firearm in his car when he arrived at the Holbrook residence and that he left that firearm in the car when he went inside. Finally, evidence in the record shows that Holbrook did not call the police until shortly after 6:00 pm, although neighbors testified that they heard a single gun shot between 4:00 pm and 4:45 pm: Initially, Holbrook told investigators that Larry had committed suicide in front of her. The investigators’ examination of the forensic evidence, however, led them to question Holbrook’s truthfulness. For example, their investigation found that Larry Holbrook had no gun-powder residue on his hands and his fingerprints were not found on the weapon; Larry’s body had been moved at least three times after death; and evidence indicated that the murder weapon had been wiped clean. Later, at her first trial, and only after being confronted with the forensic evidence described above, as well as evidence linking the murder weapon to her, Holbrook admitted that she had shot Larry. According to Holbrook’s trial version of events, Holbrook exited the bathroom of her home, and saw Larry standing in the hallway with her .357 magnum, which, Holbrook explained, Larry must have found in its hiding place behind her dresser mirror. Larry then threatened to kill her and a standoff ensued. The couple ended up in the bedroom with Larry on his knees on the floor and Holbrook on the bed. When Larry laid the pistol on the bed, she grabbed the weapon and shot Larry once in the face in an act of self-defense. At her second trial, Holbrook recanted much of this version of events, testifying that although she may have killed Larry, she had no recollection of exactly what happened. United States v. Holbrook, 368 F.3d 415, 416-18 (4th Cir.2004), rev’d, 545 U.S. 1125, 125 S.Ct. 2934, 162 L.Ed.2d 863 (2005). B. Procedural History. 1. The First Trial. An April 26, 2001, Indictment charged Holbrook with violating 18 U.S.C.A. § 922(g)(9) by possessing firearms after having been convicted of a misdemeanor crime of domestic violence (“MCDV”) (Count One) and 18 U.S.C.A. § 922(a)(6) by making false statements to a firearms dealer in connection with her purchase of the .22 caliber pistol from the federally licensed firearms dealer (Count Two). Holbrook retained attorney Richard D. Kennedy to represent her. Attorney Kristen D. Dean was later retained as co-counsel. Kennedy filed several pretrial motions on his client’s behalf. On June 15, 2001, I ruled that Holbrook would be allowed to present evidence in support of a justification defense and I would decide, after conclusion of the evidence at trial, whether a jury instruction on justification was warranted. At trial, Holbrook stipulated that she had been convicted of an MCDV. At the conclusion of the government’s evidence, her counsel moved orally for a judgment of acquittal, which I denied. Holbrook testified in her own defense. She admitted possessing both firearms, as alleged in the Indictment. She also stated that she “had to lie” and “illegally possess a second gun” to protect herself and her children from her estranged husband. (Trial Tr. vol. 1, 21, Aug. 21, 2001.) Indeed, she admitted to all of the elements of the crimes charged. Based on the government’s evidence and Holbrook’s testimony, I declined to instruct the jury on a justification defense. 2. Guilty Plea to Count One. On August 23, 2001, before the conclusion of the trial, but after I announced that I would not permit the jury to consider a justification defense, Holbrook decided to plead guilty to Count One, pursuant to a signed written Plea Agreement. Under the terms of the agreement, the government promised to dismiss Count Two; stipulated that Holbrook should be sentenced under the sentencing guideline applicable to second degree murder; and agreed to recommend full credit for acceptance of responsibility in recognition of the fact that Holbrook had gone to trial in order to preserve a defense based on justification. The Plea Agreement preserved Holbrook’s right to appeal her sentence, but expressly waived her right to collaterally attack her conviction and sentence under § 2255. A principal advantage to Holbrook from the Plea Agreement was that by agreeing to dismiss Count Two, the government limited her possible sentence to ten years, the statutory maximum for Court One. See 18 U.S.C.A. § 924(a)(2) (West 2000). Before accepting Holbrook’s guilty plea, I conducted the extensive colloquy required by Federal Rule of Criminal Procedure 11. She had already testified that she was a college graduate. Asked if she had ever been treated for mental illness, she testified that she had been treated for depression in 1996 and again in 2001. She stated that in 2001, after her husband’s death, she had received four days of inpatient treatment for depression. She was prescribed medication for this condition, but after her discharge she did not have the money to go back to the doctor and did not take any medication for her depression. She denied ever being treated for substance abuse problems. Asked if she had “taken any drugs, medicine or pills within the last 4 hours,” she said, “Yes.” (Plea Tr. 4, Aug. 23, 2001.) Questioned further, however, she stated that she had a prescription medication to help her sleep and that she had taken it two nights before, but had taken no medication at all on the night before the guilty plea. Her attorneys affirmed that they had no doubt as to Holbrook’s competency to enter a guilty plea. She agreed that she had had an adequate opportunity to discuss with her attorneys the charges against her. Holbrook identified her Plea Agreement, with her initials on each page and her signature at the end. She stated that she had read and discussed the agreement with her attorneys before signing it and that she was fully satisfied with her counsel’s representation. The prosecutor summarized the terms of the Plea Agreement, and Holbrook affirmed that the terms were included in the agreement as she understood it. I questioned her specifically as to whether she understood that she was waiving her right to collaterally attack her sentence or conviction, and she answered, “Yes.” (Id. at 9.) I asked whether she understood that although she had reserved the right to appeal any pretrial ruling or sentence, I did not believe she had the right to appeal any rulings made during trial, including my decision not to instruct the jury on justification or duress, and she answered, “Yes.” (Id. at 10-11.) Holbrook denied that she was pleading guilty based on any promise made to her outside the Plea Agreement and denied that anyone had attempted in any way to force her to plead guilty. I questioned her about her understanding of the consequences of her Plea Agreement, including the application of the sentencing guidelines, and she affirmed that she understood. I found Holbrook fully competent and . accepted her guilty plea, but deferred acceptance of the Plea Agreement until after preparation of a Presentence Investigation Report (“PSR”). The court then heard testimony and argument on whether Holbrook should be detained pending her sentencing, which was scheduled for November 8, 2001. Special Agent Lesnak of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) testified that Holbrook had been admitted to a hospital after her husband’s death because she had been suffering from thoughts of committing suicide through an overdose of sleeping pills; that Holbrook had stated her belief that she was the only one who could take care of her children and that she lost sleep when she was away from them; that on prior occasions Holbrook had threatened and attempted suicide and had threatened to kill herself along with her child or husband; and that after her hospital stay, doctors had recommended follow up treatment, which Holbrook had not obtained. Because I could not find clear and convincing evidence that Holbrook would not be a danger to herself or others, I ordered that she be detained pending sentencing. 3. Attempt to Withdraw Guilty Plea. Several months after her guilty plea, Holbrook fired her attorneys, Kennedy and Dean, and in October 2001, she moved to substitute attorney Anthony E. Collins as her counsel. On November 5, 2001, Collins filed on Holbrook’s behalf a Motion to Withdraw the Guilty Plea, a Notice of Insanity Defense, and a motion seeking authorization for Holbrook to receive a mental evaluation. The government notified Collins by letter dated November 7, 2001, that it considered the attempt to withdraw the guilty plea as a breach of the terms of the Plea Agreement, but that it did not intend to void the Agreement. Instead, the government explained that pursuant to the terms of the agreement regarding possible remedies in the event of breach, it intended to hold Holbrook to her guilty plea on Count One and to prosecute her on Count Two. On November 8, 2001, I conducted a hearing on Holbrook’s Motion to Withdraw the Guilty Plea. Collins argued that Holbrook should be allowed to withdraw her guilty plea because (1) she had believed she could revisit the guilty plea later based on her mental state, (2) she had believed her guilty plea to the federal charge would result in dismissal of the pending state court charges, and (3) she had been legally insane at the time of the offenses. Holbrook testified that she did not remember what had happened the day her husband was killed, that her trial testimony had been what she thought she “remembered” from hearing others talk about the incident, and that she did not think (and had never independently thought) that she had killed her husband. (Hearing Tr. 20-25, Nov. 8, 2001.) She denied that her prior attorney Kennedy “[had made] up the details,” but when he told her she needed to remember, she would come up with details because “it seemed like it happened then,” and that each time she related the events of the night of the killing, she was truthfully saying what she thought she remembered. (Id. at 36-40.) Holbrook’s sister, Lisa Clark, also testified that after the shooting and around the time of the trial and guilty plea, Holbrook had exhibited problems with memory of events and had appeared as though she did not hear or respond to questions. I took the Motion to Withdraw the Guilty Plea under advisement and ordered Holbrook committed for a competency evaluation. The examiner filed a report on February 25, 2002, which found that Holbrook was competent, did not suffer from a mental illness, and was able to appreciate the wrongfulness of her actions at the time of the offense. On May 9, 2002, I heard additional evidence from the defense. Holbrook called Robert Philip Granacher, Jr., M.D., a psychiatrist, to testify as to his opinion of Holbrook’s mental state. Granacher opined that he had found “multiple instances of evidence that [Holbrook] had an altered mental state” that would support a defense based on her mental state, such as “fear for her life, whether she had sufficient mental capacity to know right from wrong, whether she had sufficient mental capacity to restrain her behavior.” (Hearing Tr. 2-8, 14, May 9, 2002.) However, Granacher also stated that he did not believe Holbrook would meet the criteria of the federal definition of insanity, which is “a severe mental disease or defect causing a person to be unable to appreciate the nature and quality or the wrongfulness of the acts.” (Id. 17.) Based on the record, I found that there was not good cause to allow the withdrawal of the guilty plea. The government moved on June 11, 2002, to continue sentencing on Count One until after Holbrook could be retried on Count Two. I granted the government’s motion and on June 25, 2002, issued an opinion memorializing my decision. United States v. Holbrook, 207 F.Supp.2d 472 (W.D.Va.2002). I found that the remedy the government sought to pursue was authorized by Paragraph D(g) of the Plea Agreement, which allowed the government in the event of breach to “refuse to abide by any other sentencing or other stipulations” in the agreement, including its promise to dismiss Count Two. Id. at 474-75. 4. The Second Trial. On July 12, 2002, Holbrook’s attorney filed a Motion to Dismiss Count Two, arguing that a second trial would violate Holbrook’s rights under the Double Jeopardy Clause because a jury had previously been empaneled and heard evidence on that count during the earlier trial. He also moved to continue the trial and to clarify the terms of the Plea Agreement. After conducting a hearing on the day of trial, I denied the Motion to Dismiss Count Two, finding that Holbrook had waived her double jeopardy defense when she executed the Plea Agreement after all evidence on Count One had been presented to the jury. I also denied Collins’s other motions as moot, in light of my prior rulings. A jury trial on Count Two of the Indictment, the charge for making a false statement in order to obtain a firearm in violation of 18 U.S.C A. § 922(a)(6), was held on July 22, 25, and 26, 2002. In pretrial discussions, the parties disagreed about whose burden it was to prove that Holbrook had counsel or had waived counsel in the MCDV case in 1989. A prior MCDV does not qualify as a predicate offense under § 922(g)(9) unless the defendant was represented by counsel during the MCDV proceedings or waived that right. See 18 U.S.C.A. § 921(a)(33)(B)(i)(I) (West 2000) (providing that “[a] person shall not be considered to have been convicted of [an MCDV] for purposes of this chapter, unless ... the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case”). Moreover, if Holbrook’s prior misdemeanor conviction did not qualify as an MCDV under § 921(a)(33)(B)(i)(I) so as to make her possession of a firearm unlawful under § 922(g)(9), then her failure to disclose that misdemeanor conviction on the firearms form did not meet the elements necessary for conviction under 18 U.S.C.A. § 922(a)(6). This section makes it unlawful for a person to make a “false ... statement ... intended or likely to deceive [the seller] with respect to [a] fact material to the lawfulness of the sale.” § 922(a)(6) (emphasis added). If Holbrook’s simple assault conviction did not qualify fully as an MCDV under § 922(g)(9), she could legally possess a firearm and her misrepresentation regarding the prior conviction was not “material to the lawfulness of the sale.” The government represented that its evidence would include the record of Holbrook’s simple assault conviction. The prosecutor argued that this document “is presumed to be ... sufficient and accurate” proof of the conviction and that the defense could offer proof, as an affirmative defense, that the MCDV was uncounseled. (Trial Tr. vol. 1, 33-35, July 22, 2002.) Defense counsel Collins argued that because the record was silent as to whether counsel was present in the courtroom at the time of the conviction and sentencing, the sufficiency of the conviction under § 921(a)(33)(B)(i)(I) presented a fact question for the jury to determine. (Id. at 35-36.) Because the parties presented no definitive case law as to whether or not the sufficiency of the conviction as an MCDV for purposes of § 922(g)(9) was a jury question, I determined to submit it to the jury. The government offered testimony from the state judge, deputy clerk, and probation officer listed in state court records as having participated in the state court proceedings. These court officials had no personal recollection of Holbrook’s trial, but testified that based on the court’s general practice, the court records indicated that Holbrook had been represented by a retained attorney named John Farmer. The judge testified that she would not have convicted or sentenced Holbrook without counsel present unless Holbrook had entered a valid waiver of the right to counsel, and nothing in the court’s file indicated that Holbrook had waived her right to counsel. The defense called John Farmer as a witness. Farmer testified that he had no recollection of ever appearing in the case on Holbrook’s behalf and had found no ledger card or file in his office indicating that she had retained him to represent her in any case. He testified that he did not believe he had ever been retained by Holbrook, based on the absence of documentation, but that he could not “say one way or the other whether [he had] represented her, or not.” (Id. at 101-02, 107.) Holbrook again testified in her own defense. She recalled being in court on a matter concerning her former husband, but she denied having any memory of the day she was convicted of assault, the judge, the attorney whose name was associated with her state court record, what the charge was, or the outcome of the case. She asserted that she had spent so much money on divorce attorneys that she did not have funds to hire counsel for the criminal case, but stated that she did not remember whether an attorney might have represented her that day for free. She testified that although she remembered going to a pawn shop and taking a gun home, she did not remember the clerk or the date, completing any form, or reading or answering the question on the form relating to a prior MCDV conviction. Instead, she indicated that in 2001, if asked whether she had been convicted of a crime of domestic violence, she would have answered, “No,” because her conviction was labeled as simple assault, and not as an offense related to domestic violence. She claimed to have no memory of her admission during the first federal trial that she had purposely given a false answer on the form in order to obtain a gun for protection. She stated that the arresting officer had told her that her conviction was a domestic violence offense, and based on that knowledge, she had given her testimony that the answer on the form was false. She claimed that if she had known that her prior conviction made her ineligible to possess a firearm, she would not have lied on the firearms form. She further testified that she had not filled out an April 2000 job application which included a false response to the question of whether she had ever been convicted of a crime; she claimed her husband had completed the job application form and she had never read the form before signing it. Holbrook also testified about the medications she had taken around the time of the crime and the first federal trial. She stated that she had started taking the sleep medication Ambien to help her sleep in 2000, and that in 2001, while still taking Ambien, she had experienced memory problems, but could not remember when the memory problems began. She testified that she had not been taking Ambien at the time of the state court assault case in 1989. She indicated that during and after the 2001 trial, the sleep medication had made everything “really fuzzy.” (Trial Tr. vol. 2, 56-57, July 25, 2002.) She testified that after she had discontinued use of Ambien, she had noticed a “big change,” and had felt more “clear-minded.” (Id. at 74-75.) Her sister, Lisa Clark, and a friend, Heather Crouse, testified about incidents around the time of the shooting when they had noticed Holbrook having memory problems. I denied Collins’s request to allow Holbrook to testify in detail about her claims that Larry Holbrook had abused her and denied his request for a jury instruction regarding a justification defense. In closing argument, Collins argued that the jurors should find Holbrook not guilty because (1) she did not know in 2001 that her simple assault conviction qualified as a crime of domestic violence that made her ineligible to buy a firearm, and (2) she was not represented by counsel at the time of her assault conviction. On July 26, 2002, the jury found Holbrook guilty of Count Two. 5. Sentencing. Sentencing as to both counts took place on October 17, 2002. Attorney Collins argued that Holbrook should no longer be bound by the Plea Agreement stipulation that she should be sentenced with reference to the guideline for second degree murder, on the ground that the guideline for voluntary manslaughter was more appropriate under the circumstances. I allowed this untimely objection to the PSR and ruled that Holbrook could argue for sentencing under the voluntary manslaughter guideline. The government contended that the guideline for second-degree murder should apply because the evidence indicated that Holbrook acted with malice. The government’s view of the facts was that Holbrook had never reported any physical abuse and had no pictures of injuries caused by abuse by Larry; that she believed Larry had caused her to lose her job, and that same day, she arranged to buy a used firearm from a third party; that she set a trap for Larry on the day he was killed, shot him from behind as he looked back at her, and moved his body several times, taking steps to make his death look like a suicide. Holbrook’s attorney argued that the voluntary manslaughter guideline should apply because she had suffered from post traumatic stress syndrome and depression caused by Larry’s abuse, and she did not know that the nature and quality of her acts were wrong. The defense claimed that after Larry came into - her home in violation of a protective order, confronted her with her own gun, and threatened to kill her, she took an opportunity to take back the gun and shot Larry out of fear that he would otherwise carry out his threat. Based on the evidence, I found that the second-degree murder guideline was applicable to the facts of Holbrook’s case. Applying that provision, I sentenced her to 210 months imprisonment, consisting of 120 months on Count One and 90 months on Count Two, to run consecutively. 6. The First Appeal. Attorney Collins represented Holbrook in her first direct appeal. The Fourth Circuit affirmed, 368 F.3d at 426, and denied a Petition for Rehearing, United States v. Holbrook, 376 F.3d 259 (4th Cir.2004). In July 2004, Holbrook filed a motion seeking to remove Collins as her attorney and to proceed pro se. I denied her motion, but a similar motion was later granted by the Fourth Circuit on August 11, 2004. Holbrook filed a Petition for a Writ of Certiorari with the Supreme Court. On June 20, 2005, the Court granted the Petition, vacated the judgment, and remanded the case for further consideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Holbrook v. United States, 545 U.S. 1125, 125 S.Ct. 2934, 162 L.Ed.2d 863 (2005). The Fourth Circuit appointed attorney Sol Rosen to represent Holbrook on the remand. The court ultimately vacated the sentence and remanded for resentencing in light of Booker and United States v. Hughes, 401 F.3d 540 (4th Cir.2005). United States v. Holbrook, 178 Fed.Appx. 312 (4th Cir.2006) (unpublished). 7. The Second Sentencing and Appeal. Resentencing was held on August 28, 2006. The government relied on the evidence presented at the original 2002 sentencing hearing. Considering the advisory sentencing guidelines and the factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.2008), I imposed the same sentence of 210 months to run concurrently with Holbrook’s previously imposed state sentences arising from the same events. Attorney Rosen filed an appeal from the resentencing, arguing that (1) the court erred in imposing the same sentence, and (2) the Fourth Circuit’s practice of reviewing post-Booker sentences for “unreasonableness” preserved de facto the mandatory nature of the pre-Booker sentencing guidelines. The Fourth Circuit rejected these arguments and affirmed the sentence. United States v. Holbrook, 242 Fed.Appx. 29 (4th Cir.2007) (unpublished). Rosen’s motion to withdraw as counsel was granted, and Holbrook filed a pro se Petition for a Writ of Certiorari in the Supreme Court, which was denied. Holbrook v. United States, — U.S.-, 128 S.Ct. 688, 169 L.Ed.2d 537 (2007). 8. Holbrook’s § 2255 Claims. In her § 2255 motion, Holbrook alleges the following grounds for relief: 1. Attorney Rosen was ineffective during the second appeal in failing to submit supplemental briefing on United States v. Hayes, 482 F.3d 749 (4th Cir.2007), a decision by the Fourth Circuit regarding predicate misdemeanor offenses for § 922(g)(9) charges; 2. This court erred when it allowed the jury to decide whether the predicate conviction was valid; 3. Newly discovered evidence about Ambien demonstrates that the medication caused Holbrook to be involuntarily intoxicated; 4. Newly discovered evidence in the psychological records of the victim verifies that the victim was psychotic and supports a justification defense as well as a mitigation factor for sentencing; 5. This court erred in accepting Holbrook’s Plea Agreement after she stated that she had taken Ambien in the morning just hours before sentencing and was not taking anti-depressants; 6. Attorneys Kennedy and Dean were ineffective for allowing Holbrook to accept a Plea Agreement while she was on sleeping medication and not taking anti-depressants; 7.Attorneys Kennedy and Dean were ineffective during pre-trial, trial, and plea proceedings in that they: a. advised Holbrook that she had not violated any laws and set up an interview with the state investigator, which led to the federal charge; b. did not believe in Holbrook’s innocence and so did not investigate whether another individual had committed the crime for which the defendant’s sentence was enhanced; c. stipulated to the predicate misdemeanor offense, knowing that it had been illegally obtained; d. advised Holbrook to go to trial because she would win; e. brainwashed Holbrook into believing that she was guilty of all acts, but had an excuse; f. advised Holbrook’s sister and brother-in-law not to testify on her behalf because the prosecutor had threatened them with prosecution if they did so; g. failed to present and expose the perjured testimony of Jason Gibson and ATF Agent Lesnak; and h. insisted that Holbrook enter into a Plea Agreement with the government. 8. Attorney Collins was ineffective during pre-trial, trial, and appellate proceedings in that he: a. advised Holbrook to withdraw her guilty plea and receive a new trial on all counts, when in fact, she was held to her plea and proceeded to a new trial on the previously dismissed count; b. failed to prepare for trial; c. failed to move for dismissal of both federal charges on grounds of insufficient evidence to prove Holbrook had counsel during her prior state misdemeanor case; d. failed to question witnesses properly during trial; e. failed to appeal on all meritorious issues for appeal. 9. Attorney Collins was ineffective at the sentencing phase in that he: a. failed to request downward adjustments for factors set out in the sentencing guidelines; b. allowed Agent Lesnak to testify at sentencing when previous attorneys had an agreement with the prosecutor that Lesnak would not take the stand; c. failed to retrieve the victim’s psychological records to present in mitigation when the prosecution presented testimony concerning the records; and d. failed to present evidence regarding Agent Lesnak’s perjury or the false statement from Investigator Woodward concerning the victim’s medical records. In an addendum received on July 18, 2008, Holbrook added the following claim: 10. Based on District of Columbia v. Heller, — U.S. —, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), it is unconstitutional to prohibit Holbrook from possessing a firearm in her own home when she is neither a felon or deemed mentally ill. II To state a claim for relief under § 2255, a federal defendant must prove that one of the following occurred: (1) her sentence was “imposed in violation of the Constitution or laws of the United States”; (2) that “the court was without jurisdiction to impose such a sentence”; or (3) that “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C.A. § 2255(a). In a § 2255 motion, the defendant bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir.1958). A. Waiver of Error. A § 2255 motion is not a substitute for an appeal. Where a defendant attempts to raise new claims in § 2255 proceedings that could have been raised on appeal or arguments in support of a previously raised claim, review of such .issues is barred absent a showing of cause and prejudice or actual innocence. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). The defendant may show cause for a default by demonstrating that some force outside herself prevented her from learning the facts necessary to bring the claims earlier, although she exercised reasonable diligence to discover such facts. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986). Errors of counsel may also serve as cause to excuse the procedural default of a specific constitutional claim, but only if the defendant demonstrates that the errors were so egregious that they violated the defendant’s constitutional right to effective assistance of counsel, id. at 486-88, 106 S.Ct. 2678, and that the ineffective assistance claim itself is not procedurally defaulted, Edwards v. Carpenter, 529 U.S. 446, 451-53, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). To establish actual prejudice to excuse default, a defendant must show that his counsel’s error created “not merely ... a possibility of prejudice,” but instead that it “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). To state a claim of actual innocence sufficient to excuse procedural default, a defendant must show that “in light of all the evidence,” “it is more likely than not that no reasonable juror would have convicted him” of the underlying crime. Bousley, 523 U.S. at 623, 118 S.Ct. 1604 (quoting Schlup v. Delo, 513 U.S. 298, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). Because “actual innocence” means factual innocence in this context, not merely “legal insufficiency,” the government may rebut the defendant’s showing of innocence by presenting any admissible evidence of the defendant’s guilt as to the challenged conviction or as to other charges dismissed as part of a plea bargain. Id. at 623-24, 118 S.Ct. 1604. B. Waiver of § 2255 Rights. It is settled circuit law that a “criminal defendant may waive his right to attack his conviction and sentence collaterally, so long as the waiver is knowing and voluntary.” United States v. Lemaster, 403 F.3d 216, 220 (4th Cir.2005). Whether the waiver is knowing and intelligent depends “upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.” United States v. Davis, 954 F.2d 182, 186 (4th Cir.1992) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). When a defendant alleges that ineffective assistance of counsel caused the guilty plea itself to be unknowing, or involuntary, analysis of such claims must be part of the court’s inquiry into the validity of the guilty plea and the plea agreement waiver of § 2255 rights. See, e.g., Lemaster, 403 F.3d at 222; Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.1999) (“Justice dictates that a claim of ineffective assistance of counsel in connection with the negotiation of a cooperation agreement [waiving § 2255 rights] cannot be barred by the agreement itself — the very product of the alleged ineffectiveness.”); see also Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (finding that the voluntariness of a defendant’s guilty plea depends upon whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases). The court’s waiver analysis must focus first on the defendant’s statements during the plea hearing. “[I]n the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district court should ... dismiss any § 2255 motion that necessarily relies on allegations that contradict the sworn statements.” Lemaster, 403 F.3d at 221-22. If the court determines that the defendant’s allegations, viewed against the record of the Rule 11 plea hearing, are “so palpably incredible, so patently frivolous or false as to warrant summary dismissal,” the court may dismiss the § 2255 motion without a hearing. Id. at 220 (internal quotations and citations omitted). After determining that statements made during the plea hearing indicated that the defendant had entered a valid guilty plea and waiver of his § 2255 rights, the court in Lemaster addressed the defendant’s ineffective assistance claims only to the extent that they had some alleged bearing on the validity of the plea. Id. at 222-23. The court found that the defendant’s allegations contradicted his sworn statements at the plea hearing and, accordingly, upheld the validity of the § 2255 waiver and affirmed the district court’s dismissal of all claims as waived. Id. at 223. In other cases, however, determining the validity of the § 2255 waiver will require addressing on the merits the defendant’s claims that counsel’s ineffective assistance caused the plea to be invalid in some respect. C. Ineffective Assistance op Counsel. To prove that counsel’s representation was so defective as to require reversal of a conviction or sentence, a defendant must meet a two-prong standard, showing that counsel’s defective performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that “counsel’s representation fell below an objective standard of reasonableness,” considering circumstances as they existed at the time of the representation. Id. at 688, 104 S.Ct. 2052. The defendant must overcome a strong presumption that counsel’s performance was within the range of competence demanded from attorneys defending criminal cases. Id. at 689, 104 S.Ct. 2052. Second, to show prejudice, the defendant must demonstrate a “reasonable probability” that but for counsel’s errors, the outcome would have been different. Id. at 694, 104 S.Ct. 2052. When the defendant alleges that counsel’s error led him to enter an invalid guilty plea, he can show prejudice only by demonstrating “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366. If it is clear that the defendant has not satisfied one prong of the Strickland/Hill test, the court need not inquire into whether the other prong has been satisfied. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Ill A. Claim Foreclosed by Supreme Court. While Holbrook’s second appeal on Booker issues was pending, the Fourth Circuit decided United States v. Hayes, 482 F.3d 749 (4th Cir.2007), rev’d, — U.S. -, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009). In Hayes, the Fourth Circuit found that in order for a conviction to qualify as an MCDV as defined in 18 U.S.C.A. § 921(a)(33) (West 2000 & Supp. 2008) so as to support a conviction under 18 U.S.C.A. § 922(g)(9), “[the] predicate offense must ... have as an element a domestic relationship.” Id. at 759. In Claim 1 of her § 2255 motion, Holbrook argues that her attorney Sol Rosen should have amended his appellate brief to include an argument that under the Hayes decision, Holbrook was actually innocent of both counts, and the convictions should be vacated. It is true that the predicate offense used to support Holbrook’s conviction under § 922(g)(9) was the misdemean- or crime of simple assault, and the statute under which Holbrook was convicted, Va. Code Ann. § 18.2-57 (Supp.2008), does not include, as an element of the offense, proof of a domestic relationship between the defendant and the victim. In its response, the government admitted that if the Supreme Court had upheld Hayes, then Holbrook might have been entitled to a hearing to determine whether she was actually innocent of the conduct required to support her conviction on Count One. The Supreme Court, however, found the reasoning of the Hayes court to be unpersuasive and, on February 24, 2009, reversed that decision. United States v. Hayes, — U.S. ——, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009). The Court held that the definition of an MCDV in § 921(a)(33)(A) does not require the predicate-offense statute to “include, as a discrete element, the existence of a domestic relationship between offender and victim.” Id. at 1084. As the Court stated, Most sensibly read, then, § 921(a)(33)(A) defines “misdemeanor crime of domestic violence” as a misdemeanor offense that (1) “has, as an element, the use [of force],” and (2) is committed by a person who has a specified domestic relationship with the victim. To obtain a conviction in a § 922(g)(9) prosecution, the Government must prove beyond a reasonable doubt that the victim of the predicate offense was the defendant’s current or former spouse or was related to the defendant in another specified way. But that relationship, while it must be established, need not be denominated an element of the predicate offense. Id. at 1087. Holbrook’s offense conduct in the 1989 assault case meets the elements under § 921(a)(33)(A) as interpreted by the Supreme Court in Hayes. She was convicted of a misdemeanor offense involving the element of force against her husband. Accordingly, that state conviction qualified as a predicate offense under § 922(g)(9), making Holbrook’s possession of the firearm unlawful. In turn, her false statement on the firearms form meets the materiality element'required for a conviction under § 922(a)(6). Accordingly, I will deny relief as to Claim 1. B. Holbrook’s Waiver of § 2255 Rights. The government next argues that pursuant to her Plea Agreement, Holbrook waived her right to bring Claims 2 through 9 under § 2255. Paragraph G of Holbrook’s Plea Agreement states, in relevant part: I waive any right I may have to collaterally attack any sentence imposed in any future proceeding, including but not limited to my rights, if any, under 28 U.S.C. § 2255. I understand that if I pursue any collateral attack of my conviction and sentence, this will constitute a breach of this plea agreement, and entitle the government to any of its remedies under this agreement. I agree that unless Holbrook asserts some reason that her guilty plea to Count One and the waiver in Paragraph G must be deemed unknowing or involuntary and therefore invalid, the waiver bars § 2255 claims challenging the conviction or sentence on Count One. The government obtained the conviction on Count One through Holbrook’s entry of the plea, pursuant to'the Plea Agreement. Thus, Holbrook must reasonably have contemplated that if she later raised § 2255 claims alleging the invalidity of that conviction or sentence, the government could respond by arguing that her challenge was barred under the terms of Paragraph G. Therefore, unless I find that Holbrook has met her burden to show some reason that the guilty plea or the Agreement was invalid, any claims challenging Count One or the sentence on that count that fall within the scope of the waiver may be dismissed as waived. The government cites no legal authority, however, for extending the scope of the waiver in Paragraph G to encompass § 2255 claims that do not, challenge the conviction or sentence on Count One. The government’s bargain called for a guilty plea as to Count, One and dismissal of Count Two of the Indictment. Holbrook’s breach of the Plea Agreement did not affect her conviction on Count One at all. On the contrary, at the most, Holbrook’s breach gave the government the right to try her on Count Two rather than to dismiss that count pursuant to the agreement. See Holbrook, 368 F.3d at 422 n. 4 (“the Government’s pursuit of trial on Count Two in this case is ... a permissible act authorized by well-established principles of contract law”) (emphasis added). Holbrook was convicted on Count Two only after a separate trial and jury verdict. Although Paragraph G purports to waive any right to collaterally attack “any sentence imposed in any future proceeding” (emphasis added), it is not broad enough to bar collateral attack of a conviction and sentence so independently obtained. Thus, I find that Holbrook retains the right to raise § 2255 claims regarding the events leading to the breach of her Plea Agreement, the resulting adverse effects of that breach, and the subsequent court proceedings leading to her conviction and sentence on Count Two. 1. Valid Guilty Plea and Plea Agreement. Before accepting Holbrook’s guilty plea on August 23, 2001, I questioned her thoroughly to ensure that her plea was knowing and voluntary. Her responses indicated that she understood the proceedings, the charge to which she was pleading, and the consequences of her plea. Her conduct and responses gave me no cause' to believe that on that date, she was under the influence of any medication or suffering from depression symptoms that would prevent her from entering a knowing and voluntary guilty plea pursuant to the Plea Agreement. Counsel also indicated no reservations about her competence to enter a guilty plea. Holbrook indicated that she had reviewed the Plea Agreement with counsel and understood and accepted its provisions in exchange for the legal benefits it provided her. I specifically questioned her about her understanding of the provision waiving her right to bring a collateral attack under § 2255. She indicated that she did. I find now, as I did at the plea hearing, that Holbrook’s guilty plea and the waiver of her right to bring a collateral attack under § 2255 were knowing and voluntary and therefore valid as to any claims concerning her conviction or sentence on Count One. 2. Claims Bearing on the Validity of the Plea. Holbrook argues that her guilty plea was invalid because she was not taking prescribed anti-depressants for a previously diagnosed condition and had taken prescription sleeping medication “within hours before sentencing.” In Claims 5 and 6, she faults the court and counsel for allowing her to enter the plea under these conditions and asserts that these factors create a reasonable probability that she was incompetent to plead guilty. Claims 5 and 6 are based on assertions that directly contradict Holbrook’s statements during the plea hearing. During that hearing, she affirmed to the court that she had not taken any medications the night before the plea hearing and that she understood the charge, the plea agreement provisions, and the consequences of her plea. She also stated that she was satisfied with counsel’s representation. In the face of this record, her claims that the court or counsel should have stopped her plea for mental health reasons are “so patently frivolous or false as to warrant summary dismissal” absent a showing of extraordinary circumstances. Lemaster, 403 F.3d at 220-22. Holbrook makes no such showing. As stated, neither Holbrook’s conduct nor her responses during the trial and the plea hearing indicated that she was not competent to enter the guilty plea on August 23, 2001. Certainly, medication taken “hours before sentencing” had no bearing on her condition at the guilty plea hearing; Holbrook expressly told the court that she had not taken any medication since two nights before the plea hearing. She does not describe any specific symptoms of drug-induced confusion or untreated depression that were evident to counsel outside the courtroom so as to put counsel on notice that her ability to understand and participate in the proceedings was impaired in any way. Finally, Holbrook’s allegation that mental problems prevented her from entering a valid plea on August 23, 2001, is contradicted to great extent by the results of the February 2002 competency evaluation that she underwent, which found no evidence that Holbrook suffered from mental illness or defect at the time of the crime and determined that she had no mental illness or defect at the time of testing. Based on this evidence, I find no extraordinary circumstances that mitigate against the conclusion that Holbrook is bound by her plea hearing testimony and that the contradictory allegations in Claims 5 and 6 are so incredible and frivolous as to warrant summary dismissal under Lemaster. Therefore, Claims 5 and 6 offer no ground on which to invalidate Holbrook’s waiver of § 2255 rights. Holbrook argues in Claim 7 that counsel should have proceeded differently in preparing and presenting trial evidence on Count One, and if they had, Holbrook would not have pleaded guilty to Count One. The subparts of Claim 7 necessarily rely on assertions directly contradictory to Holbrook’s testimony at the plea hearing that she was satisfied with counsel’s representation during the presentation of the trial evidence and the plea negotiations; that she understood the charges, the terms of the Plea Agreement, and the consequences of her plea; and that- no one had “attempted in any way to force” her to plead guilty. (Plea Tr. 11, Aug. 23, 2001.) Thus, absent extraordinary circumstances, all portions of Claim 7 are so incredible and frivolous as to warrant summary dismissal under Lemaster, 403 F.3d at 220-22. Holbrook makes no showing of extraordinary circumstances, and in any event, all subparts of Claim 7 fail under the Strickland/Hill standard. In Claim 7(a), Holbrook argues that counsel’s decision to arrange for her to be interviewed by the state investigator led to the federal charges. She offers no indication, however, that law enforcement agents investigating the shooting would not otherwise have discovered Holbrook’s connection to the murder weapon and her false statement on the firearms form. Therefore, she cannot demonstrate that counsel’s decision to set up an interview was either deficient performance or prejudicial to her case. In the remaining subparts of Claim 7, Holbrook argues that absent counsel’s choice of trial strategy and rejection of evidence supporting another theory, she would have let the case' go to the jury on both counts during the first trial rather than pleading guilty. The justification strategy used at trial relied on Holbrook’s testimony that Larry’s past abusive conduct had caused her to be so afraid for her life that she needed the gun to protect herself and that his conduct in her house on February 23, 2001, had caused her to be so afraid that she shot him to prevent him from killing or harming her. In Claim 7(d) and 7(e), Holbrook alleges that counsel “brainwashed” her into believing in this theory of the case as the way to “win,” although it was contrary to her actual “memory” of events. She asserts that counsel helped her remember details about the day of the shooting so as to mold her memories and, ultimately, her testimony to match the physical evidence. Other than her late-hatched story of confusion and memory loss, Holbrook offers no evidence in support of this brainwashing claim. Moreover, -she fails to demonstrate that counsel’s justification strategy was an unreasonable one, given the physical evidence and the story to which Holbrook testified at trial. The fact that the evidence, particularly Holbrook’s own testimony, did not convince me to allow argument of a justification defense does not prove that counsel’s tactics fell below professional norms. Once the justification defense was not available, counsel could reasonably believe that Holbrook’s best option was to accept the Plea Agreement in order to cap the length of her eventual sentence. Holbrook offers no evidence in support of Claim 7(h), and the record strongly supports a finding that she received accurate advice about the advantages of the Plea Agreement over taking her chances with the jury. Holbrook argues in Claim 7(c) that counsel erred in stipulating to the legality of her prior assault conviction. As discussed, Holbrook argues that proof that she had no legal representation on her prior domestic violence charge would be a complete defense to both of her federal charges. See § 921(a)(33)(B)(i)(I) (providing that “[a] person shall not be considered to have been convicted of [an MCDV] for purposes of this chapter, unless ... the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case”). Thus, if Holbrook was not represented by counsel in the 1989 case, that simple assault conviction could not provide the basis for the charge that she unlawfully possessed a firearm under § 922(g)(9). Furthermore, her failure to disclose the assault conviction on the firearms form would not have been a “false ... statement ... intended or likely to deceive [the seller] with respect to [a] fact material to the lawfulness of the sale,” so as to support her conviction under Count Two. § 922(a)(6) (emphasis added). In fact, her purchase of the gun would have been lawful. See, e.g., United States v. Brown, 235 F.Supp.2d 931, 939 (S.D.Ind.2002) (finding that if exemption under § 921(a)(33)(B)(ii) applies to defeat a conviction under § 922(g)(9), then it also defeats conviction under § 922(a)(6) because statement on firearms form would not be false or material to lawfulness of sale). The record does not reflect any strategic reasons for stipulating to the fact that Holbrook’s simple assault conviction qualified as an MCDV under § 922(g)(9). However, I find no resulting prejudice. At the second trial, the government put on extensive evidence in support of the prosecution’s theory that Holbrook was represented by counsel during the 1989 state court proceedings, and the jury found her guilty of making a material false statement in connection with the firearm purchase in violation of § 922(a)(6). A necessary element of that guilty verdict was a finding, beyond a reasonable doubt, that Holbrook was represented by counsel in the assault case, making her possession of the firearm unlawful and her denial of the prior MCDV a “false ... statement ... intended or likely to deceive [the seller] with respect to [a] fact material to the lawfulness of the sale.” § 922(a)(6). Holbrook asserts that her sister, Lisa Clark, would have testified that she was present during the state court trial and sentencing and that Holbrook did not hire or have appointed counsel for that case. Holbrook faults counsel for failing to pursue this issue in the first trial. However, if this issue had been raised, the government would have had a strong case, including state court records and testimony from the trial judge, the court clerk, and the probation officer. Given Clark’s natural motivation to help her sister’s case, her testimony would not have been enough to counterbalance the weight of the- government’s evidence. Thus, I find no reasonable probability that Clark’s testimony would have helped the defense sufficiently to convince a reasonable defendant ih Holbrook’s position to reject the Plea Agreement as to Count One. Holbrook argues that instead of the justification defense, counsel should have used cross-examination of Jason Gibson and ATF agent Lesnak, along with testimony from Holbrook’s sister and brother-in-law, to persuade the jury that Gibson, and not Holbrook, killed the victim. Holbrook offers several pieces of “evidence” that counsel would have uncovered with more thorough investigation of Gibson: Gibson visited Holbrook in her sister’s home several times between the shooting and the indictment and, during those visits, demonstrated his knowledge of numerous details about the shooting, but never mentioned that he had helped Holbrook obtain the gun or that she still owed his cousin money for it; Gibson’s alibi could have been discredited; Gibson’s testimony about Holbrook’s purchase of the murder weapon from his cousin was contradictory to testimony from other witnesses present at that sale; Gibson had a motive to kill Larry, because Larry was dating Gibson’s estranged wife; Gibson had “stalked” Larry in the past and had threatened to kill him; Gibson knew about and had access to firearms; Gibson called Larry’s cell phone number on February 23, 2001; and Gibson made statements to state and federal law enforcement agents that contradicted his testimony at trial. She argues that if counsel had presented this evidence during trial, she would not have pleaded guilty. Counsel’s failure to fully investigate available evidence and viable defenses before advising a client to accept a guilty plea may raise a claim of ineffective assistance under Hill. See 474 U.S. at 59-60, 106 S.Ct. 366. The relevant inquiry is whether, objectively, the unexplored evidence or defense would likely have succeeded at trial so as to create a reasonable probability that absent counsel’s omission, the defendant would have decided to reject a guilty plea and proceed to trial, using that evidence or defense. Id. I cannot find that Holbrook has established a claim of deficient conduct here. She does not demonstrate that counsel’s warning that family members who testified might be indicted was without basis in fact. She also does not show that Gibson’s driving class was dismissed earlier than 4:30 p.m. on February 23, 2001. Without poking such a decisive hole in Gibson’s alibi, her defense theory that he was a viable suspect fails utterly. Moreover, the evidence of Gibson’s motive for killing Larry, his knowledge of guns, and his contradictory statements, without any evidence tying him to the scene of the crime itself, could not have overcome the government’s substantial evidence pointing to Holbrook as the killer. All told, I cannot find any reasonable probability that if counsel had only followed Holbrook’s proffered strategy of casting doubt on her guilt by implicating Gibson, the defense would have been so clearly successful that she would have rejected the Plea Agreement benefits and insisted on sending the case to the jury- Not only do the subparts of Claim 7 thus fail under Strickland and Hill, but they also fail to present extraordinary circumstances rendering Holbrook’s Plea Agreement waiver of § 2255 rights invalid and the waiver stands. I will thus deny relief as to Claims 5, 6, and 7. C. New Evidence. Holbrook argues that two sets of “newly discovered” evidence entitle her to a new trial on Count One, as follows: 1. Recently disclosures of side effects caused by the sleep medication Ambien indicate, that Holbrook was involuntarily intoxicated during the crime, the first trial, the guilty plea, and the proceeding to withdraw her guilty plea; as such, she could not be criminally liable for her crimes and could not have entered a valid guilty plea, so must receive a new trial; 2. Psychological records of the victim from his ongoing treatment for Post Traumatic Stress Syndrome recently disclosed to the defendant reflect that in March 2000, the victim was suffering a psychotic state. Holbrook asserts that the new evidence about the possibility that her sleep medication altered her state of mind proves that she was mentally incompetent to plead guilty, making her guilty plea invalid, and mandating that she be retried on Count One. She also asserts that the victim’s psychological records support her justification defense to Count One. I have already found that claims challenging the validity of Count One are waived under Holbrook’s valid waiver of § 2255 rights, unless they themselves bear on the validity of the guilty plea. Holbrook argues that her new evidence invalidates her plea. I cannot agree. The Due Process Clause prohibits trying and convicting mentally incompetent defendants. Pate v. Robinson, 383 U.S. 375, 384-86, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The test for determining competency is whether a defendant “has sufficient present abi