ERIC F. MELGREN, District Judge.
Petitioner Austin Alan Ray ("Petitioner") brings this Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 66). Because review of Petitioner's motion and the accompanying court record conclusively shows that he is not entitled to relief, this Court denies the motion without an evidentiary hearing.
On March 2, 2011, Petitioner was charged with one count of knowingly and intentionally receiving and distributing, by computer, visual depictions of minors, the production of which involved the use of minors engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2). Petitioner initially pleaded not guilty and was ordered released on a $25,000 unsecured appearance bond with supervision. On August 22, 2011, Petitioner appeared before this Court and entered a plea of guilty to the knowing, intentional, and unlawful receipt of child pornography.
In its presentence investigation report ("PSR"), the Probation Office assigned Petitioner a total offense level of thirty-four (34), calculated as follows: (1) a base offense level of twenty-two (22), (2) a two-level enhancement because the material on Petitioner's computers involved prepubescent minors, (3) a four-level enhancement because the material portrayed sadistic or masochistic conduct or other depictions of violence, (4) a two-level enhancement for Petitioner's use of a computer, (5) a five-level enhancement because Petitioner had received more than 600 images, and (6) a two-level enhancement because Petitioner's offense involved the distribution of child pornography. The PSR also recommended a three-level downward adjustment given Petitioner's acceptance of responsibility and his timely guilty plea. Given Petitioner's criminal history category, which was determined to be category I, Petitioner's sentencing range under the Sentencing Guidelines was 151 to 188 months imprisonment.
In both written and verbal responses, Petitioner objected to the two-level enhancement for distribution of child pornography. Petitioner argued that the government had not offered any evidence that Petitioner distributed child pornography or that any of his downloaded files had been shared with another computer. Petitioner alternatively argued that, even if such file sharing had occurred, it had been unintentional. Petitioner therefore urged this Court to adopt a two-level reduction under USSG § 2G2.2(b)(1) because his conduct "was limited to the receipt or solicitation" of child pornography and involved no intent to distribute.
This Court ultimately sentenced Petitioner to 102 months imprisonment, well below the Guideline recommendation. In rendering its decision, the Court explained that it took into consideration a number of factors, including the brutality and quantity of the images in Petitioner's possession, the need for deference to Congress's penal determinations, the local community's expressions of support for Petitioner, and Petitioner's personal characteristics, including his youth and professed desire for rehabilitation. This Court also placed Petitioner on a seven-year term of supervised release, which required Petitioner to register as a sex offender. In addition to the standard conditions of supervised release, this Court also imposed seventeen (17) special conditions which included, among other things:
Petitioner filed a direct appeal, alleging the following assignments of error: (1) inappropriate application of the two-level enhancement for distribution of child pornography; (2) violation of his Fifth and Sixth Amendment rights to due process and a jury trial because of this enhancement; (3) flouting the commands of 18 U.S.C. § 3553 by giving more than the permissible level of deference to the Sentencing Guidelines, refusing to consider Petitioner's history as a victim of sexual abuse, and erroneously concluding that Petitioner had deleted the pornographic images only in anticipation of discovery by authorities; and (4) a substantively unreasonable sentence. On February 5, 2013, the United States Court of Appeals for the Tenth Circuit affirmed Petitioner's sentence.
On October 28, 2013, Petitioner filed a Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 66). In his motion, Petitioner claims ineffective assistance of counsel based on his counsel's alleged failure to object to and/or appeal some of the special conditions of his supervised release. Petitioner also alleges that his sentence violated his Eighth Amendment right against cruel and unusual punishment. Based on a review of the record, this Court finds Petitioner's assignments of error to be without merit.
According to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts,
The court must hold an evidentiary hearing on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief."
First and foremost, this Court notes that Petitioner's § 2255 claims were not raised on direct appeal. Since "a § 2255 motion is not intended as a substitute for an appeal . . . failure to raise an issue either at trial or on direct appeal imposes a procedural bar to habeas review."
Petitioner alleges ineffective assistance of counsel due to his counsel's alleged failure to object to and/or appeal the following special conditions of Petitioner's supervised release: (1) no unsupervised conduct with minors without permission of his probation officer; (2) no possession of material that depicts sexually explicit conduct involving adults; (3) periodic unannounced/random examinations of Petitioner's computer(s) and all related items; and (4) Petitioner's participation in a substance abuse program, a prohibition against his use of alcohol and/or other intoxicating substances during his participation in that program, and his partial payment of the costs of that program.
In general, to succeed on a claim of ineffective assistance of counsel, a petitioner must meet the two-prong test set forth in Strickland v. Washington.
With regard to the second prong, a petitioner "must show there is a reasonable probability that, but for his counsel's professional errors, the result of the proceeding would have been different."
District courts have broad discretion to prescribe special conditions of supervised release.
In addition to these statutory requirements, "the conditions must also comport with the relevant constitutional provisions."
With regard to the first special condition, that Petitioner "shall refrain from any unsupervised contact with minors during the term of supervision unless approved by the probation officer," Petitioner alleges error based on vagueness. According to Petitioner, it is impossible to determine if, for example, the condition prohibits him from seeing or visiting minor children relatives or being in the presence of minors who appear at his home or the homes of his relatives unannounced. Petitioner also alleges error based on the fact that he was neither indicted for, convicted of, or sentenced to any offense that involved the physical harm of children, nor was there any evidence that he was in danger of committing such an offense. Petitioner's arguments are without merit.
Although the prohibition against unsupervised contact with minors does not go into detail with regard to acceptable or unacceptable contact, such detail is not necessary. Courts in the Tenth Circuit have consistently upheld similar allegedly vague special conditions. For example, in United States v. Mike, a defendant was convicted of assaulting an elderly individual and was subsequently required to register as a sex offender.
Furthermore, the holding in Mike also shows that the prohibition against contact with minors was reasonable despite the fact that Petitioner's offense did not involve actual contact with minors. If a court may impose such a restriction on an individual whose underlying crime has nothing to do with children, then certainly it is a reasonable consequence for Petitioner, whose underlying crime involves the receipt of child pornography. Such a restriction is directly tied to the "nature and circumstances of the offense." Therefore, counsel was not deficient in failing to object to the imposition of this restriction and counsel's alleged failure to do so cannot now be categorized as ineffective assistance of counsel.
Petitioner next argues that the restrictions on his ability to either view on his computer or physically possess material that depicts sexually explicit conduct involving adults are not "reasonably related to the nature and circumstances of the offense nor [Petitioner's] history," and "involve a greater deprivation of liberty than is reasonably necessary."
Restrictions on sexually explicit material involving adults are not uncommon to those convicted of child pornography offenses. In United States v. Shea,
Here, although the vast majority of sexually explicit images found on Petitioner's computers involved children, the PSR did note that the computer owned by Petitioner's brother and used by Petitioner did contain some adult pornography. While Petitioner's brother claimed responsibility for those images, the PSR also indicated that Petitioner had received emails containing images of adults performing sexual acts on nude males under the age of twelve. Therefore, this Court finds that the special conditions prohibiting Petitioner from having, either on his computer or in his physical possession, material that depicts sexually explicit conduct involving adults were reasonable, as they relate to both the nature and circumstances of the offense as well as the deterrence of criminal conduct. As such, Petitioner's counsel was not deficient in not raising any objection to these conditions.
Next, Petitioner contests the special condition that requires him to consent to periodic unannounced and/or random examinations of any computer, Internet-capable devices, hardware, or software under his control. In support of his argument, Petitioner claims that this "suspicionless search" condition is neither a required or discretionary condition of supervised release set forth under either federal or Kansas statutes, nor is it a required or recommended condition under the sentencing guidelines. Again, Petitioner's argument is without merit.
Probationary searches are not uncommon as a general rule or as applied in instances of child pornography offenses. In United States v. White,
On appeal, the Tenth Circuit affirmed the inclusion of probationary searches in the defendant's sentence.
The Tenth Circuit has also explained generally that "the purpose of supervised release is to provide enough supervision to prevent recidivism on the part of the offender."
Finally, Petitioner contests the condition that requires him to: (1) successfully participate in a program for substance abuse, (2) abstain from the use of alcohol and other intoxicants during this program, and (3) share in the cost of the program. In support of his claim, Petitioner argues that this condition does not relate to the nature and circumstances of his offense or his history and characteristics. He also alleges that by requiring him to share in the cost for the program, this Court exceeded the scope of its authority. Petitioner's arguments are without merit.
Upon search of Petitioner's home at the time of his arrest, federal agents found marijuana, marijuana pipes, a scale, a packing tool, and marijuana cigarette butts in Petitioner's bedroom. While Petitioner's father ultimately admitted ownership of these items, a psychiatric consultation noted that Petitioner suffered from cannabis dependence. Petitioner himself reported past use of alcohol and marijuana, stating that he first consumed alcohol at the age of fifteen and admitted to consuming it once every month to once every other month. Petitioner claimed to have last consumed alcohol in July 2009, a little more than a year before the search of his home. Petitioner also admitted to first smoking marijuana at the age of fourteen and stated that he smoked three to six times per day in an effort to alleviate his mental health symptoms. Petitioner last reported smoking marijuana in November 2010, the same month as the search of his home.
As stated above, any conditions imposed upon a defendant with regard to supervised release must satisfy the three statutory requirements set forth in 18 U.S.C. § 3583(d), the first of which requires that the condition be reasonably related to at least one of a variety of options, including the defendant's history and characteristics.
In sum, as stated above, to succeed on a claim of ineffective assistance of counsel, a petitioner must meet the two-prong test set forth in Strickland. Under this test, a petitioner must first prove that his counsel's representation was constitutionally deficient because it fell below an objective standard of reasonableness.
In his second assignment of error, Petitioner advances a facial, as opposed to an as-applied, attack against USSG § 2G2.2, dealing with the receipt of child pornography, alleging that, as currently set forth, the Guideline allows for a sentence that is "grossly disproportionate" to the underlying offense, especially for a first-time offender.
Petitioner fails to provide any explanation as to his failure to raise this issue on direct appeal to the Tenth Circuit, let alone sufficient good cause. "Good cause can be shown if the defendant's claim is so novel that its legal basis [was] not reasonably available to counsel, or if the defendant demonstrates that defense counsel was constitutionally ineffective."
Rule 11 of the Rules Governing Section 2255 Proceedings requires a district court to issue or deny a certificate of appealability upon entering a final adverse order.
