United States District Court, N.D. Florida, Gainesville Division
REPORT AND RECOMMENDATION
R. JONES, UNITED STATES MAGISTRATE JUDGE
matter is before the Court upon Petitioner's Amended
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a person in Federal Custody (ECF No. 65);
the Government's Response (ECF No. 67); and
Petitioner's Reply. (ECF No. 68.) 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 review of the record and the arguments
presented, the Court concludes that Petitioner has not raised
any issue requiring an evidentiary hearing and that the
§ 2255 Motion should be denied. See Rules 8(a)
and (b) Governing § 2255 Cases.
April 27, 2010, a grand jury returned a two-count indictment
charging Petitioner with: 1) receiving and distributing and
attempting to receive and distribute child pornography in
violation of Title 18, United States Code, Sections
2252A(a)(2)(A) and 2252A(b)(1) (Count One); and 2) possession
of child pornography in violation of Title 18, United States
Code, Sections 2252A(a)(5)(B) and 2252A(b)(2). (ECF No. 1.)
entered into a plea agreement in which he agreed to plead
guilty to Count One in exchange for the Government's
promise to dismiss Count Two. (ECF No. 21.) On July 26, 2010,
the Court accepted Petitioner's guilty plea. (ECF No.
19.) Upon entry of the guilty plea, the United States
Probation Office prepared a Presentence Investigation Report
(“PSR”). (ECF No. 33.)
reflected that Petitioner had a base offense level of 22
pursuant to United States Sentencing Guidelines § 2G2.2.
Id. at ¶ 26. The base level was significantly
increased by five specific-offense characteristics.
Petitioner received a two-level increase pursuant to
2G2.2(b)(2) because many of the images found on
Petitioner's computer involved pre-pubescent minor
children. Id. at ¶ 27. Petitioner received a
two-level increase pursuant to § 2G2.2(b)(3)(F) because
the offense involved a peer-to-peer file-sharing network in
which Petitioner listed child pornography for distribution.
Id. at ¶ 28. He received a four-level increase
pursuant to § 2G2.2(b)(4) because several of the images
portrayed sexual intercourse with pre-pubescent children.
Id. at ¶ 29. He received a two-level increase
pursuant to § 2G2.2(b)(6) because the offense involved
Petitioner's computer and an interactive peer-to-peer
file-sharing network to possess, transmit, receive, and
distribute the material. Id. at ¶ 30. He
received a two-level increase pursuant to §
2G2.2(b)(7)(D) because the offense involved 96 images.
Id. at ¶ 31.
three-level downward adjustment for acceptance of
responsibility, Petitioner's total offense level was 31.
Id. at ¶¶ 36, 37. Petitioner's
criminal history category was I. Id. at ¶ 86.
The offense carried a minimum term of imprisonment of five
years and a maximum term of twenty years pursuant to
§§ 2252A(a)(2)(A) and 2252A(b)(1). Id. at
¶ 85. The applicable Guidelines range was 108 to 135
months. Id. at ¶ 86.
December 6, 2010, the Court sentenced Petitioner to 108
months of imprisonment, a life term of supervised release,
and a $100 Special Monetary Assessment. (ECF No. 37.)
Eleventh Circuit Court of Appeals affirmed Petitioner's
conviction and sentence in an opinion issued on August 4,
2011, and issued a mandate thereafter on September 6, 2011.
(ECF No. 61.) Petitioner did not file a Petition for Writ of
Certiorari in the United States Supreme Court. On November
30, 2016, more than five years after the Eleventh Circuit
entered final judgment in his case, Petitioner filed a letter
seeking appointed counsel to aid him in filing an action
pursuant to § 2255, which the Court construed as a
motion to vacate. (ECF No. 62.)
December 19, 2016, Petitioner filed the instant Amended
Motion pursuant to § 2255. (ECF No. 65.) In his sole
ground for relief, Petitioner seeks a sentence
reduction on the grounds that he did not
“knowingly” engage in the distribution of child
pornography and therefore should not have received a
two-point enhancement pursuant to § 2G2.2(b)(3)(F).
General Legal Standard
review is not a substitute for direct appeal, and therefore
the grounds for collateral attack on final judgments pursuant
to Section 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, 477 U.S. 478, 496 (1986),
provides that it must be shown that the alleged
constitutional violation Ahas probably resulted in the
conviction of one who is actually innocent . . . .” An
evidentiary hearing is unnecessary when “the motion and
files and records conclusively show that the prisoner is
entitled to no relief.” See 28 U.S.C. §
2255(b); Rosin, 786 F.3d at 877; Gordon v.
United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Not
every claim of ineffective assistance of counsel warrants an
evidentiary hearing. Gordon, 518 F.3d at 1301
(citing Vick v. United States, 730 F.2d 707, 708
(11th Cir. 1984)). To be entitled to a hearing, a defendant
must allege facts that, if true, would prove he is entitled
to relief. See Hernandez v. United States, 778 F.3d
1230, 1234 (11th Cir. 2015). A hearing is not required on
frivolous claims, conclusory allegations unsupported by
specifics, or contentions that are wholly unsupported by the
record. See WinthropBRedin v. United States, 767
F.3d 1210, 1216 (11th Cir. 2014) (explaining that “a
district court need not hold a hearing if the allegations [in
a' 2255 motion] are . . . based upon unsupported
generalizations”) (internal quotation marks omitted);
Peoples v. Campbell, 377 F.3d 1208, 1237 (11th Cir.
2004). Even affidavits that amount to nothing more than
conclusory allegations do not warrant a hearing.
Lynn, 365 F.3d at 1239. Finally, disputes involving
purely legal issues can be resolved by the court without a