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United States v. Arnold

United States District Court, N.D. Florida, Tallahassee Division

April 10, 2018

UNITED STATES OF AMERICA,
v.
ADAM ARNOLD, Defendant Reg. No. 21902-017

          ORDER, REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court upon Defendant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 65). The motion is Defendant's second such motion, filed after he successfully challenged counsel's alleged failure to file an appeal. (ECF Nos. 49-51). The Government responded in opposition to the instant motion. (ECF No. 70). Defendant filed a reply, and much later a motion to supplement. (ECF Nos. 71, 72). The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After a careful review of the record and the arguments presented, it is the opinion of the undersigned that the § 2255 motion should be denied and that no certificate of appealability should issue.

         PROCEDURAL BACKGROUND

         On January 9, 2013, Defendant was charged in a two-count indictment with receipt and distribution of child pornography ("Count One") and possession of child pornography ("Count Two"). (ECF No. 1). He pleaded guilty to Count One of the indictment on March 21, 2013, pursuant to a written plea agreement and statement of facts. (ECF Nos. 13-15).[1]According to the statement of facts, [2] state law enforcement executed a search warrant on Defendant's home after an internet service provider supplied information that a Tallahassee, Florida, subscriber was sending and/or receiving child pornography images.[3] After Defendant was read his Miranda rights, he admitted that he knew that the officers were there because he had downloaded child pornography. He explained that he was sexually aroused by children between infancy and fourteen years old, but that he had not acted on these urges. Forensic examination revealed approximately 6000 images of child pornography within a "hidden" directory on Defendant's computer, including children under the age of 12 engaged in sexual intercourse. A separate directory labeled "friends" contained non-pornographic images of what appeared to be local children to whom Defendant may have been attracted.[4] Defendant also admitted having received and posted images of child pornography on a Russian-based website and provided investigators with his username and password for this site. (ECF No. 13 at 1-3).

         The Presentence Investigation Report ("PSR") calculated Defendant's total offense level as 37. (ECF No. 19, PSR ¶¶ 18-31). This included a base offense level of 22, two two-level increases because the offense conduct included prepubescent minors and it was facilitated by the use of a computer, a four-level increase due to Defendant's possession of material portraying sadistic or masochistic conduct, and a five-level adjustment as a result of Defendant's "trade" of the images and videos. Defendant also received a three-level downward adjustment for acceptance of responsibility. Defendant's criminal history category was I. The applicable advisory guidelines range of 210 to 262 months became 210 to 240 months due to the statutorily authorized maximum sentence. (PSR ¶¶ 67, 68). Multiple pages of victim impact statements were appended to the PSR (see ECF No. 19-1 at 1-49), and the defense filed letters in mitigation in Defendant's behalf, including from his parents and one of his daughters. (ECF No. 20).

         At sentencing, the court sua sponte questioned the application of the five-level increase for the "trade" of the images, which the Government ultimately conceded was not applicable to Defendant's case (ECF No. 28 at 3-6). The advisory guideline range was reduced to 121 to 151 months, accordingly. After hearing argument from the parties, the court imposed a below-guidelines sentence of 108 months imprisonment, followed by a life term of supervised release. (Id. at 23-28). The court advised Defendant of his appellate rights (id. at 32-33), and the clerk entered judgment on June 4, 2013. (ECF Nos. 22, 23).

         Defendant did not appeal, and counsel's failure to file an appeal was one of the claims he raised in his initial § 2255 motion. (ECF No. 30). After conducting a hearing limited to this issue, the undersigned recommended that Defendant be afforded a belated appeal and that the remaining claims be dismissed without prejudice. (ECF No. 49). The district court adopted the recommendation, and Defendant unsuccessfully appealed. (ECF Nos. 50, 51, 63, 64). Defendant argued on appeal that the district court committed plain error by improperly advising him that he faced a maximum term of supervised release of five years, instead of the applicable life term and he was not fully aware of his rights when he pled. (ECF No. 63). The Eleventh Circuit agreed that there was plain error, but found that Defendant had not shown that the error had affected his substantial rights because he had not demonstrated that he would not have pled guilty absent the error and the record contained no evidence of such. (ECF No. 63 at 4).

         Defendant timely filed the instant motion to vacate within a month of the Eleventh Circuit's mandate. He raises three grounds for relief. The Government opposes the motion in its entirety.

         ANALYSIS

         General Standard of Review

         "Section 2255 does not provide a remedy for every alleged error in conviction and sentencing." Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014). Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to § 2255 are extremely limited. A prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). "Relief under 28 U.S.C. §2255 'is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The "fundamental miscarriage of justice" exception recognized in Murray v. Carrier, 411 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation "has probably resulted in the conviction of one who is actually innocent The law is well established that a district court need not reconsider issues raised in a section 2255 motion which have been resolved on direct appeal. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014); Rozierv. United States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994). Once a matter has been decided adversely to a defendant on direct appeal, it cannot be re-litigated in a collateral attack under section 2255. Nyhuis, 211 F.3d at 1343 (quotation omitted). Broad discretion is afforded to a court's determination of whether a particular claim has been previously raised. Sanders v. United States, 373 U.S. 1, 16 (1963) ("identical grounds may often be proved by different factual allegations ... or supported by different legal arguments ... or couched in different language . . . or vary in immaterial respects").

         Because a motion to vacate under section 2255 is not a substitute for direct appeal, issues which could have been raised on direct appeal are generally not actionable in a section 2255 motion and will be considered procedurally barred. Lynn, 365 F.3d at 1234-35; Bousley v. United States, 523 U.S. 614, 621 (1998); McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is "'available' on direct appeal when its merits can be reviewed without further factual development." Lynn, 365 F.3d at 1232 n.14 (quoting Mills, 36 F.3d at 1055). Absent a showing that the ground of error was unavailable on direct appeal, a court may not consider the ground in a section 2255 motion unless the defendant establishes (1) cause for not raising the ground on direct appeal, and (2) actual prejudice resulting from the alleged error, that is, alternatively, that he is "actually innocent." Lynn, 365 F.3d at 1234; Bousley, 523 U.S. at 622 (citations omitted). To show cause for procedural default, a defendant must show that "some objective factor external to the defense prevented [him] or his counsel from raising his claims on direct appeal and that this factor cannot be fairly attributable to [defendant's] own conduct." Lynn, 365 F.3d at 1235. A meritorious claim of ineffective assistance of counsel can constitute cause. See Nyhuis, 211 F.3d at 1344.

         Ineffective assistance of counsel claims generally are not cognizable on direct appeal and are properly raised by a § 2255 motion regardless of whether they could have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503 (2003); see also United States v. Franklin, 694 F.3d 1, 8 (11th Cir. 2012); United States v. Campo, 840 F.3d 1249, 1257 n.5 (11th Cir. 2016). To prevail on a constitutional claim of ineffective assistance of counsel, a defendant must demonstrate both that counsel's performance was below an objective and reasonable professional norm and that he was prejudiced by this inadequacy. Strickland v. Washington, 466 U.S. 668, 686 (1984); Williams v. Taylor, 529 U.S. 362, 390 (2000); Darden v. United States, 708 F.3d 1225, 1228 (11th Cir. 2013). In applying Strickland, the court may dispose of an ineffective assistance claim if a defendant fails to carry his burden on either of the two prongs. Strickland, 466 U.S. at 697; Brown v. United States, 720 F.3d 1316, 1326 (11th Cir. 2013); Holladayv. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) ("[T]he court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.").

         In determining whether counsel's conduct was deficient, this court must, with much deference, consider "whether counsel's assistance was reasonable considering all the circumstances." Strickland, 466 U.S. at 688; see also Dingle v. Sec'y forDep't of Corn, 480 F.3d 1092, 1099 (11th Cir. 2007). Reviewing courts are to examine counsel's performance in a highly deferential manner and "must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Hammond v. Hall, 586 F.3d 1289, 1324 (11th Cir. 2009) (quoting Strickland, 466 U.S. at 689); see also Chandler v. United States, 218 F.3d 1305, 1315-16 (11th Cir. 2000) (discussing presumption of reasonableness of counsel's conduct); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989) (emphasizing that petitioner was "not entitled to error-free representation"). Counsel's performance must be evaluated with a high degree of deference and without the distorting effects of hindsight. Strickland, 466 U.S. at 689. To show counsel's performance was unreasonable, a defendant must establish that "no competent counsel would have taken the action that his counsel did take." Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (citations omitted); Chandler, 218 F.3d at 1315. "[T]he fact that a particular defense ultimately proved to be unsuccessful [does not] demonstrate ineffectiveness." Chandler, 218 F.3d at 1314. When reviewing the performance of an experienced trial counsel, the presumption that counsel's conduct was reasonable is even stronger, because "[e]xperience is due some respect." Chandler, 218 F.3d at 1316n.18.

         To establish prejudice, defendant must show that, but for counsel's deficient performance, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. "The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter,562 U.S. 86, 112 (2011) (quoting Strickland). For the court to focus merely on "outcome determination, " however, is insufficient; "[t]o set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him." Lockhart v. Fretwell,506 U.S. 364, 369-70 (1993); Allen v. Sec'y, Fla. Dep't of Corr,611 F.3d 740, 754 (11th Cir. 2010). A defendant therefore must establish "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Lockhart, 506 U.S. at 369 (quoting Strickland, 466 U.S. at 687). Or in the case of alleged sentencing errors, a defendant must demonstrate that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been less harsh due ...


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