United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
matter is before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255 [DE 67] and the government's motion to
dismiss [DE 71]. For the reasons discussed below,
respondent's motion is GRANTED and petitioner's
§ 2255 motion is DISMISSED.
29, 2016, petitioner pleaded guilty, pursuant to a written
plea agreement, to receipt of child pornography, in violation
of 18 U.S.C. §§ 2252(a)(2) and 2252()b(1). He was
sentenced to a term of 108 months' imprisonment, and that
judgment was upheld on appeal. On October 24, 2015,
petitioner filed a motion under § 2255, alleging that he
received ineffective assistance of counsel. Petitioner claims
his attorney failed to investigate his computer settings and
withdrew a valid objection at sentencing.
survive a motion to dismiss pursuant to Fed.R.Civ.P.
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 Bell Atl. Corp. v. Twombley, 550 U.S. 544,
555 (2007)). Additionally, "vague and conclusory
allegations contained in a § 2255 petition may be
disposed of without further investigation by the District
Court." United States v. Dyess, 70 F.3d 354,
359 (4th Cir. 2013) (quotation omitted).
ineffective assistance of counsel claim fails because he has
not satisfied the two-pronged requirements of Strickland
v. Washington, 466 U.S. 668, 687 (1984). First, a
petitioner must show that the representation he received fell
below an objective standard of reasonableness. Id.
at 688. This Court must be "highly deferential" of
counsel's performance and must make every effort to
"eliminate the distorting effects of hindsight."
Id. at 689. Therefore, the Court must "indulge
a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance."
Id. The second prong is met where there is "a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 694.
two criticisms of his attorney stem from the criminal
consequences of the peer-to-peer file sharing program
petitioner had installed on his computer. The sentencing
guidelines regarding the possession of child pornography
establish varying enhancements and reductions based on a
variety of factors, including whether the defendant actually
distributed the material. Peer-to-peer programs are
distributions, because others are given access to the
materials on an individual's computer. Petitioner claims
that as the "share settings" on his computer were
turned off, he merited a two-level reduction in his offense
level pursuant to U.S.S.G. § 2G2.2. (b)(1)(B). He argues
that his counsel, by not conducting a forensic investigation
into his computer settings, and by withdrawing the object
pursuant to § 2G2.2(b)(1), was ineffective, because he
merited a reduction in his base offense level and therefore a
has not met the Strickland standard and so his
motion is dismissed. How to present an argument is a
strategic choice. See United States v. Ragin, 820
F.3d 609, 620 (4th Cir. 2016) ("[T]he question of
prejudice under Strickland ordinarily involes
consideration of the range of strategies and tactics
available to a lawyer."). Petitioner's counsel's
strategy at sentencing was effective: petitioner received a
downwardly variant sentence, as his guideline range was from
121-151 months, and he was sentenced to 108 months. He cannot
show that there is a reasonable probability he would have had
a better outcome had his attorney made a different strategic
decision. Therefore his claim must be dismissed.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2) (2000). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, . 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
After reviewing the claims in light of the applicable
standard, the Court declines to issue a certificate of
foregoing reasons, the government's motion to dismiss [DE
71] is GRANTED and petitioner's motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255