United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
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
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].
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].
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, ¶¶
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].
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].
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].
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].
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
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)).
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, " ...