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Kasper v. United States

United States District Court, M.D. Florida, Jacksonville Division

January 22, 2018

JAMES D. KASPER, Petitioner,



         This 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.”).[1] 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.

         I. Background

         On 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).

         In 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.

         On 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.

         On 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 the incident.

         Petitioner 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.

         Forensic 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.).

         At his 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).

         At his 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).

         Petitioner 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.

         Petitioner timely filed the instant Motion to Vacate. Petitioner raises three claims of ineffective assistance of counsel, which are discussed below.

         II. Discussion

         Under 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).

         To 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 both ...

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