Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Borowski v. United States

United States District Court, E.D. North Carolina, Southern Division

April 18, 2017




         This cause comes before the Court on petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. [DE 50]. The government has moved to dismiss the petition, [DE 60], and the matter is ripe for disposition. For the reasons discussed below, the government's motion to dismiss is granted and petitioner's motion is dismissed.


         On July 3, 2008, Petitioner was arrested in Pelham, Alabama, by the Pelham Police Department (PPD) after traveling to Alabama for the purpose of having a sexual encounter with a 15-year-old juvenile female. [DE 25 at 3, ¶ 4]. The PPD interviewed petitioner after his arrest, and petitioner admitted to having sex with a minor in May 2008, claiming the encounter was consensual. [DE 25 at 4, ¶ 5]. Petitioner later pleaded guilty in Alabama to two counts of sexual misconduct based on original charges of rape and sodomy for this conduct. [DE 25 at 7, ¶ 12]. He was sentenced to two years in state prison but was in custody for two years and 354 days. [DE 25 at 7, ¶12].

         While being interviewed by PPD on July 3, petitioner also admitted to having sex in Ohio with two other juveniles, between ages 12 and 14, when he was 17 years old. [DE 25 at 4, ¶ 5]. He further acknowledged having child pornography on his personal computer in his barracks room at Camp Lejeune, where he was stationed as a United States Marine. [DE 25 at 3-4, ¶¶ 4-5]. Following that admission, the Naval Criminal Investigative Service (NCIS) searched petitioner's barracks room, recovering 190 still images and 73 videos of child pornography. [DE 25 at 4, ¶ 5].

         Petitioner was then federally indicted on November 28, 2012, on six counts of receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2). [DE 1]. He entered into a plea agreement with the United States in which he promised, among other things, to plead guilty to Count One of the indictment and pay restitution to any victim. [DE 21 at 1, ¶¶ 2.a-2.b]. Petitioner also agreed to waive most of his appellate rights. [DE 21 at 1, ¶ 2.c]. The United States, in turn, agreed to dismiss Counts Two through Six, to recommend a sentence at the low end of the applicable guidelines range, and to consider the federal offense to predate the conduct in petitioner's Alabama sexual-misconduct conviction. [DE 21 at 5-6, ¶¶ 4.a-4.c].

         Based on petitioner's total offense level of 37 and criminal history category of I, his advisory guidelines range was 210 to 262 months, capped at the statutory maximum sentence of 240 months. [DE 25 at 12, ¶ 51]. Petitioner's counsel filed a 61-page sentencing memorandum urged the Court to sentence petitioner to a below-guidelines imprisonment term of five years, followed by five years of supervised release involving any further treatment petitioner might need. [DE 30 at 10]. Supporting that request, petitioner's counsel reviewed the sentencing factors " of 18 U.S.C. § 3553(a), arguing that petitioner's offense conduct was less serious than Congress had in mind in mandating the child pornography guideline, in part because petitioner's conduct was driven by PTSD. [DE 30 at 12].

         This Court held petitioner's sentencing hearing on September 25, 2013. [D.E. 39]. The Court reviewed the pre-sentence report (PSR), including petitioner's base offense level and the several specific offense characteristics that increased that offense level. [DE 39 at 5-6]. The Court also heard arguments from both of petitioner's attorneys who argued that petitioner's turn to child pornography was a result of the stress and trauma of service in a combat role in Iraq. [DE 39 at 7-8]. Government counsel requested a sentence of 174 months' imprisonment, reflecting a downward departure from the bottom of the advisory guidelines range based on the time petitioner spent in prison in Alabama. [DE 39 at 20]. Government counsel rejected the notion that petitioner's PTSD explained or justified petitioner's conduct. [DE 39 at 21].

         The Court agreed with the government's recommendation, sentencing petitioner to a below-guidelines sentence of 174 months' imprisonment, as well as restitution of $8, 000 to an identified victim who had requested it. [DE 39 at 28].

         Petitioner appealed the restitution aspect of his sentence to the United States Court of Appeals for the Fourth Circuit. [DE 34]. The Fourth Circuit dismissed that appeal on November 5, 2014, as barred by petitioner's appeal waiver. [DE 44, 45].

         Petitioner, proceeding pro se, then timely filed the instant motion to vacate or remand for resentencing alleging that he received the ineffective assistance of counsel in violation of the Sixth Amendment. [DE 50]. The government has moved to dismiss the § 2255 motion, arguing that petitioner has failed to state a claim upon which relief can be granted. [DE 60].


         "To survive a motion to dismiss pursuant to Rule 12(b)(6), [petitioner's] '[f]actual allegations must be enough to raise a right to relief above the speculative level, ' thereby 'nudg[ing] their claims across the line from conceivable to plausible.'" Aziz v. Alcolac Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Under § 2255(b), [u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court must grant a prompt hearing to determine the issues and make findings of fact and conclusions of law with respect thereto." United States v. Thomas, 627 F.3d 534, 539 (4th Cir. 2010) (internal quotation omitted). However, "vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court." United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).

         In order to demonstrate that the assistance of counsel was ineffective in violation of the Sixth Amendment, a petitioner must show (1) deficient performance, meaning that "counsel's representation fell below an objective standard of reasonableness" and (2) resulting prejudice, meaning that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington,466 U.S. 668, 694 (1984). In accordance with Strickland, the prejudice prong is evaluated first if the lack of sufficient prejudice alone can dispose of the ineffective assistance claim. Id. at 697. The Court must "judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct, " ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.