United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD United States District Judge
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). 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, 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). For the reasons set forth below,
Sessine's Motion to Vacate is due to be denied.
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).
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.
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
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.
Sessine's Motion to Vacate
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.
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
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).
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 ...