Sessine v. United States

          ORDER

          MARCIA MORALES HOWARD United States District Judge

         This case is before the Court on Petitioner John George Sessine's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Civ. Doc. 1, Motion to Vacate).^[1] The United States has responded. (Civ. Doc. 7, Amended Response). Sessine did not file a reply, although the Court granted him leave to do so. (Civ. Doc. 3, Briefing Order). Pursuant to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255 Proceedings^[2], the Court has considered the need for an evidentiary hearing and determines that an evidentiary hearing is not necessary to resolve the merits of this action. See Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002) (an evidentiary hearing on a § 2255 petition is not required when the petitioner asserts allegations that are affirmatively contradicted by the record or patently frivolous, or if in assuming the facts that he alleges are true, he still would not be entitled to any relief); Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (concluding that a petitioner's ineffective assistance claim can be dismissed without an evidentiary hearing when the petitioner alleges facts that, even if true, would not entitle him to relief); Dickson v. Wainwright, 683 F.2d 348, 351 (11th Cir. 1982) (“On habeas a federal district court need not conduct an evidentiary hearing if it can be conclusively determined from the record that the petitioner was not denied effective assistance of counsel.”); Patel v. United States, 252 F. App'x 970, 975 (11th Cir. 2007).^[3] For the reasons set forth below, Sessine's Motion to Vacate is due to be denied.

         I. Background

         On July 11, 2013, a grand jury sitting in the Middle District of Florida returned an indictment charging Sessine with three counts of receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1). (Crim. Doc. 1, Indictment at 1-3). Pursuant to a written plea agreement (Crim. Doc. 30, Plea Agreement), Sessine pled guilty to Count Two of the Indictment, and the United States agreed to dismiss Counts One and Three. Sessine participated in a change of plea hearing on December 13, 2013, where the Magistrate Judge advised Sessine of his constitutional rights, the nature of the charge to which he was pleading guilty, and the consequences of doing so, including the mandatory minimum and maximum sentences. (Crim. Doc. 39, Plea Transcript at 14-27). The prosecutor read aloud the factual basis, id. at 44-48, which Sessine admitted was true, id. at 50. Sessine admitted to each element of the offense, stated that he pled guilty knowingly and freely, and affirmed that he was not induced to plead guilty by any threats or promises. Id. at 32-35, 50-51. Accordingly, the Court accepted Sessine's plea and adjudicated him guilty. (See Crim. Doc. 33, Acceptance of Plea).

         Sessine appeared before the Court for sentencing on April 1, 2014. (See Crim. Doc. 40, Sentencing Transcript) (“Sentencing Tr.”). Based on the presentence investigation report (PSR), the Court determined that Sessine's total offense level under the United States Sentencing Guidelines (“Guidelines”) was 34 and his Criminal History Category was I, yielding an advisory sentencing range of between 151 and 188 months in prison. Id. at 4. Sessine presented substantial mitigation evidence pursuant to 18 U.S.C. § 3553(a)(1), pertaining to his personal history and characteristics, as well as the nature and circumstances of the offense. (See Crim. Doc. 34, Sentencing Memorandum). Sessine presented letters of support from family members (Crim. Doc. 34-1, Letters), as well as records from a commendable tenure in the military (Crim. Doc. 34-2, Military Records). Sessine argued that the Court should vary below the Guidelines range, taking into account that he had a history of suffering from depression; that he had been a caring father to his two daughters, one of whom has special needs; that he was remorseful; that he had never committed a contact offense against a child (nor did he have any other criminal record, for that matter); and according to one psychologist, Dr. Harry Krop, he was a good candidate for counseling. Sentencing Tr. at 17-26. Sessine further argued that because of his slight build and his age (Sessine was 59 years old at the time of sentencing), the Court should consider imposing a lesser sentence because incarceration would be harder on Sessine than it would be on a younger defendant. Id. at 25.

         Additionally, Sessine argued that a sentence in the range of 151 to 188 months would exceed the sentence given to similarly situated defendants (see Crim. Doc. 34-3, Sentencing Case Law).

         The mitigation evidence persuaded the Court to vary below the Guidelines range. The Court sentenced Sessine to a 75-month term of imprisonment, followed by ten years of supervised release. Id. at 27. The Court explained:

Looking at Mr. Sessine's personal history and his characteristics, the Court is of the view that the sentence imposed today of 75 months will - is entirely sufficient to reflect the seriousness of the offense and to accomplish both specific and general deterrence. It's probably more than necessary for specific deterrence, but there are other reasons for sentencing, including just punishment and including reflecting the seriousness of the offense.

And so the Court - although the Court has varied downward, the Court is simply firmly convinced that any more time would be more than is necessary to accomplish any of the purposes of sentencing, and so for that reason the Court has imposed a sentence of 75 months.

Id. at 30-31. Sessine raised no objection at the conclusion of the sentencing. Id. at 32-33. Thereafter, Sessine did not file a notice of appeal, so his conviction and sentence became final 14 days later, or on April 15, 2014. Sessine timely filed the instant Motion to Vacate on or about June 19, 2014.

         II. Sessine's Motion to Vacate

         Sessine seems to raise four grounds in his Motion to Vacate. First, Sessine suggests that counsel was ineffective because she “didn't fight his case to the best of her knowledge or argue his 18 U.S.C. [§] 3553(a) factors to be considered at sentencing.” Motion to Vacate at 1. Second, Sessine argues that counsel was ineffective for advising him that he would only be sentenced to a term of five years in prison, when in fact he received a sentence of 75 months (six years and three months) in prison. Id. at 1-2.

         Third, Sessine seems to contend that his sentence is unlawful because the “Feeney Amendment, ” codified at 18 U.S.C. § 3553(b)(2), which requires a within-guidelines sentence in cases involving sexual offenses or crimes against children, is unconstitutional in light of United States v. Booker, 543 U.S. 220 (2005) (holding that mandatory application of the United States Sentencing Guidelines violates the Sixth Amendment). In this regard, Sessine refers to a Seventh Circuit case in which the court found the Feeney Amendment to be unconstitutional. Sessine does not provide the case citation, but the Court recognizes that Sessine likely is referring to United States v. Grigg, 442 F.3d 560 (7th Cir. 2006), in which the Seventh Circuit did indeed hold that 18 U.S.C. § 3553(b)(2) is unconstitutional in light of Booker. Finally, Sessine generally seems to argue that the Court should reconsider his term of imprisonment based on a variety of sentencing factors, including the sentences given to other, allegedly similarly-situated defendants; the availability of a downward departure based on age or physical impairment, pursuant to U.S.S.G. § 5K2.22; the possibility of sentencing him to home confinement rather than incarceration under the Second Chance Act, codified at 42 U.S.C. § 17541; and the existence of other personal factors that the Court purportedly overlooked at sentencing. Motion to Vacate at 3-5.

         III. Discussion

         Pursuant to Title 28, United States Code, Section 2255, a person in federal custody may move to vacate, set aside, or correct his sentence. Section 2255 permits such collateral challenges on four specific grounds: (1) the imposed sentence was in violation of the Constitution or laws of the United States; (2) the court did not have jurisdiction to impose the sentence; (3) the imposed sentence exceeded the maximum authorized by law; or (4) the imposed sentence is otherwise subject to collateral attack. 28 U.S.C §2255(a) (2008). Only jurisdictional claims, constitutional claims, and claims of error that are so fundamentally defective as to cause a complete miscarriage of justice will warrant relief through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86 (1979). A petitioner's challenge to his sentence based on a Sixth Amendment claim of ineffective assistance of counsel is normally considered in a collateral attack. United States v. Teague, 953 F.2d 1525, 1534 n. 11 (11th Cir. 1992).

         As with any Sixth Amendment ineffective assistance of counsel claim, a § 2255 petitioner must demonstrate both: (1) that his counsel's conduct amounted to constitutionally deficient performance, and (2) that his counsel's deficient performance sufficiently prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Weeks v. Jones, 26 F.3d 1030, 1036 (11th Cir. 1994). In determining whether the petitioner has satisfied the first requirement, i.e. that counsel performed deficiently, the Court adheres to the standard of reasonably effective assistance. Weeks, 26 F.3d at 1036. The petitioner must show, in light of all the circumstances, that counsel's performance fell outside the “wide range of professionally competent assistance.” Id. To satisfy the second requirement, that counsel's deficient performance prejudiced the defendant, the petitioner must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Id. at 1036-37 (citing Strickland, 466 U.S. at 694). In determining whether a petitioner has met the two prongs of deficient performance and prejudice, the Court considers the totality of the evidence. Strickland, 466 U.S. at 695. However, because both prongs are necessary, “there is no reason for a court… to approach the inquiry in the same order or even to address ...