United States District Court, M.D. Florida, Jacksonville Division
JAMES D. KASPER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
TIMOTHY J. CORRIGAN JUDGE.
case is before the Court on Petitioner James D. Kasper's
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence (Civ. Doc. 1) and Supporting Memorandum
(Civ. Doc. 2, Civ. Doc. 2-1, Civ. Doc. 2-2) (collectively
“Pet. Mem.”). The United States has responded (Civ.
Doc. 5), and Petitioner has replied (Civ. Doc. 6). Pursuant
to Rule 8(a) of the Rules Governing Section 2255 Proceedings,
the Court has determined that an evidentiary hearing is not
necessary to decide the petition. See Aron v. United
States, 291 F.3d 708, 714-15 (11th Cir. 2002) (an
evidentiary hearing on a § 2255 motion is not required
when the petitioner asserts allegations that are
affirmatively contradicted by the record or patently
frivolous, or if in assuming that the facts he alleges are
true, he still would not be entitled to any relief). For the
reasons set forth below, Petitioner's Motion to Vacate is
due to be denied.
March 28, 2013, a federal grand jury indicted Petitioner on
one count of production of child pornography, in violation of
18 U.S.C. §§ 2251(a) and (e). (Crim. Doc. 15,
Indictment). Petitioner pled guilty to the charge under a
written plea agreement. (Crim. Doc. 50, Plea Agreement).
Petitioner admitted to the following facts in his Plea
Agreement and at the change of plea hearing. (See
Crim. Doc. 50 at 16-19; Crim. Doc. 76 at 19-24).
February 2013, law enforcement officers in Tennessee arrested
a registered sex offender on child pornography charges.
Further investigation of that offender's emails
eventually led law enforcement to discover emails between a
second user, the “A account, ” and a third user
identified as the “ghostt4891” account, which
belonged to Petitioner. Between February 3, 2013 and February
4, 2013, the A account and Petitioner exchanged emails in
which the two traded images of child pornography.
February 3, 2013, the A account sent an email to Petitioner
with the subject line “trade.” Attached to this
email was an image of a prepubescent female wearing a t-shirt
and underwear. On February 4, 2013, Petitioner sent an email
to the A account that stated “send the goods to get the
goods.” Attached to this email was an image depicting a
close-up view of a prepubescent child's pubic area
covered with green underwear. Later on February 4, 2013, the
A account sent Petitioner two images depicting a prepubescent
child displaying the child's genitalia. Later that day,
Petitioner sent a responsive email to the A account that had
two attached digital images. Both images depicted the pubic
area of a prepubescent child, with Petitioner's hand or
finger visible and pulling the child's underwear to one
side exposing the child's genitalia. Petitioner produced
the two images, among others, on May 27, 2012, using his
Apple iPhone. Further investigation revealed that Petitioner
had uploaded these images, along with at least nine others
depicting the same child displaying her genitalia, to a
website whose server was located outside the United States.
March 20, 2013, FBI agents and other law enforcement officers
executed a search warrant at Petitioner's residence in
Jacksonville, Florida. During this search, the agents seized
a laptop computer and a four gigabyte thumb drive. Meanwhile,
two agents met Petitioner at his place of employment in
Jacksonville. Petitioner agreed to speak with the agents and
admitted that he owned the “ghostt4891” account.
Petitioner stated that he had used the
“ghostt4891” account to receive images of child
pornography from other individuals. Upon being shown the two
pornographic images of the child wearing the green underwear,
Petitioner hung his head, hid his face, and said “you
already know.” Petitioner stated that he had used his
iPhone to create the images while babysitting a 9 year old
minor. After taking the photographs of the child, Petitioner
uploaded the images to a particular website and sent those
pictures via email. Petitioner admitted that he later
gratified himself while viewing the images and thinking about
acknowledged that child pornography is harmful to the child,
and he stated that he had struggled off and on with child
pornography for the past 10 years. Petitioner admitted that
his actions were illegal and morally wrong. Petitioner
recalled using a peer-to-peer file sharing program in the
past to search for child pornography, and he stated that he
had “probably” used such search terms as
“pthc” (“preteen hardcore”) and
“pedo” in the past. Petitioner further told the
officers that he agreed that the images he created
constituted child pornography.
analysis of Petitioner's computer revealed the presence
of 12 images of child pornography, while the thumb drive held
another “641 images produced by Kasper depicting the
prepubescent child at various stages of the production
process.” (Crim. Doc. 50 at 19). Altogether, “at
least 49 of these images depicted the minor victim's
genitalia and part of Kasper's hand pulling the
child's underwear aside.” (Id.).
plea hearing, Petitioner admitted that the foregoing factual
basis was true and accurate (taking issue only with the
calculation of 641 separate images for sentencing purposes).
(Crim. Doc. 76 at 24). Having been advised of the elements of
producing child pornography and of the potential penalties
(id. at 11-13), he acknowledged that his conduct
satisfied the elements of the offense and that he was guilty
(id. at 18, 24). Petitioner affirmed that his guilty
plea was knowing and voluntary, and that it was not the
result of any promises, threats, or coercion. (Id.
at 25). With respect to the written plea agreement,
Petitioner assured the Court that he had read the document
and that his attorney had reviewed it with him. (Id.
at 13-14). When the Court explained various provisions of the
plea agreement - including a provision by which Petitioner
waived the right to appeal his sentence (id. at
17-18) - Petitioner indicated his understanding and
acceptance of those provisions. Petitioner confirmed one
final time that it was his desire to plead guilty, and the
Court accepted his plea. (Id. at 27-28).
sentencing hearing, the Court calculated Petitioner's
Criminal History Category under the United States Sentencing
Guidelines to be Category I, and his total offense level to
be 39, yielding an advisory sentencing range of 262 to 327
months in prison. (Crim. Doc. 77, Sentencing Transcript at
23). The total offense level included a two-level enhancement
under U.S.S.G. § 2G2.1(b)(2)(A) because the crime
involved sexual contact, an issue that was contested at
sentencing. (See id. at 17-21). Ultimately, the
Court varied below the Guidelines range and sentenced
Petitioner to a term of 240 months in prison, followed by a
20-year term of supervised release. (Id. at 81-82).
appealed his sentence, but the Eleventh Circuit Court of
Appeals dismissed the challenge. (Crim. Doc. 78, USCA Order).
The court concluded that Petitioner entered into a knowing
and voluntary sentence-appeal waiver, and thus that the
appeal was barred. Petitioner did not request certiorari
review, and his conviction and sentence became final.
timely filed the instant Motion to Vacate. Petitioner raises
three claims of ineffective assistance of counsel, which are
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 fundamental 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).
succeed on a claim of ineffective assistance of counsel, a
petitioner must show both (1) that counsel's performance
was deficient, and (2) that as a result of counsel's
deficient performance, the petitioner suffered prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
In determining whether counsel performed deficiently, the
Court adheres to the standard of reasonably effective
assistance. Weeks v. Jones, 26 F.3d 1030, 1036 (11th
Cir. 1994). 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 show 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). A
“reasonable probability” is a probability
sufficient to undermine confidence in the outcome.
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. Id. 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