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Marsh v. United States

United States District Court, M.D. North Carolina

May 22, 2015

DONALD HEATH MARSH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

L. PATRICK AULD, Magistrate Judge.

This case comes before the undersigned United States Magistrate Judge for a recommended ruling on Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Docket Entry 26) ("Section 2255 Motion").[1] For the reasons that follow, the Court should deny Petitioner's Section 2255 Motion.

INTRODUCTION

This Court (per Senior United States District Judge N. Carlton Tilley, Jr.) entered a Judgment against Petitioner imposing, inter alia, a prison term of 145 months, upon his guilty plea to distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) & (b)(1). (Docket Entry 14; see also Docket Entry 1 (Indictment); Docket Entry 7 (Plea Agt.); Docket Entry dated Dec. 8, 2010 (documenting guilty plea); Docket Entries dated May 13, July 21 and 28, 2011 (documenting sentencing); Docket Entry 19 (Plea Hrg. Tr.); Docket Entries 18, 20, 21 (Sent'g Hrg. Tr.).) The United States Court of Appeals for the Fourth Circuit affirmed and the United States Supreme Court denied certiorari. United States v. Marsh, 479 F.Appx. 538 (4th Cir.), cert. denied, ___ U.S. ___, 133 S.Ct. 676 (2012). Petitioner then timely filed his instant Section 2255 Motion (Docket Entry 26), along with a Memorandum of Law in Support (Docket Entry 27). The United States responded (Docket Entry 29) and Petitioner replied (Docket Entry 31).[2]

DISCUSSION

Via the instant Section 2255 Motion, Petitioner asserts these three grounds for relief:

1) ineffective assistance of trial-level and appellate counsel related to the factual basis for Petitioner's guilty plea, in light of an unpursued suppression issue (see Docket Entry 26, Continuation Sheet, p. 1 ("Ground One"));

2) ineffective assistance of trial-level counsel in not securing the presence of two witnesses at Petitioner's sentencing hearing (see id. ("Ground Two"));[3] and

3) ineffective assistance of trial-level counsel in failing to associate another attorney (or, alternatively, to prepare properly) for Petitioner's sentencing hearing and of appellate counsel in failing to appeal the denial of a continuance of the sentencing hearing to facilitate trial-level counsel's association of another attorney (see id., Continuation Sheet, pp. 1-2 ("Ground Three").[4]

To make out an ineffective assistance claim, Petitioner must show that his counsel's performance fell below a reasonable standard for defense attorneys and that prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687-94 (1984). "Surmounting Strickland's high bar is never an easy task.... [T]he standard for judging counsel's representation is a most deferential one." Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal quotation marks omitted). All of Petitioner's ineffective assistance of counsel claims fail as a matter of law.

Ground One - Guilty Plea (Factual Basis/Motion to Suppress)

As to Ground One, Petitioner has asserted that his trial-level counsel provided constitutionally ineffective assistance:

1) by "advising [Petitioner] to plead guilty and [by] not advising [him] to withdraw his plea [because] there was an insufficient basis to support a guilty plea under 18 U.S.C. § 2252[A](a)(2)" ...


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