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Pelech v. United States

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

January 9, 2020

MYRON PELECH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This matter is before the court on petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (DE 91), respondent's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (DE 95), and petitioner's motion to clarify and correct his motion to vacate (DE 101). Pursuant to 28 U.S.C. § 636(b)(1)(B), United States Magistrate Judge Kimberly A. Swank entered a memorandum and recommendation (“M&R”) (DE 106), wherein it is recommended that the court deny petitioner's motions and grant respondent's motion. Petitioner timely objected. In this posture, the issues raised are ripe for ruling. For the reasons stated herein, petitioner's § 2255 motion is denied, respondent's motion to dismiss is granted, and petitioner's motion to clarify or correct is denied. The court denies petitioner a certificate of appealability.

         BACKGROUND

         On December 16, 2014, petitioner was indicted on fifteen counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).

         On February 5, 2016, petitioner's counsel filed motions in limine to prevent the introduction of polygraph evidence and computer analysis and forensics conducted by the government. On February 23, 2016, pursuant to the terms of a written plea agreement, petitioner pleaded guilty to one count of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2). Petitioner's pretrial motions were withdrawn at arraignment. (Transcript of Arraignment (“Tr.”) (DE 80) 19:18-20). Consistent with the terms of petitioner's plea agreement, he was sentenced to a term of 120 months imprisonment on June 9, 2016.

         Petitioner timely appealed his sentence. Petitioner's appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating there were no meritorious issues for appeal but seeking review of the district court's enhancement of petitioner's sentence for use of a computer in the instant offense. Petitioner also filed a pro se brief arguing the court lacked jurisdiction, the government engaged in prosecutorial misconduct, and counsel rendered ineffective assistance. The United States Court of Appeals for the Fourth Circuit affirmed in part and dismissed in part petitioner's appeal. United States v. Pelech, 683 Fed.Appx. 257, 257 (4th Cir. 2017) (per curiam). Petitioner never sought certiorari, and his judgment became final July 25, 2017.

         DISCUSSION

         A. Standard of Review

         The district court reviews de novo those portions of the M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for “clear error, ” and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

         A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). “The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions, or the [§ 2255 Rules], may be applied to” § 2255 proceedings. Rules Governing Section 2255 Proceedings, Rule 12.

         B. Analysis

         Petitioner seeks relief under § 2255, alleging 1) ineffective assistance of trial counsel, 2) ineffective assistance of appellate counsel, 3) prosecutorial misconduct, and 4) violation of his Fourth and Fifth Amendment rights. In motion to clarify or correct, petitioner also argues that respondent improperly applied 18 U.S.C. § 2252 to his case. For the reasons discussed below, the record conclusively shows petitioner is entitled to no relief, and no evidentiary hearing is warranted.

         1. Ineffective Assistance of Counsel

         The Sixth Amendment to the United States Constitution provides that a criminal defendant is entitled “to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. In order claim that counsel's assistance was constitutionally ineffective, a petitioner must satisfy a two-pronged test. See Strickland v. Washington, 466 U.S. 688, 687 (1984). Under the first prong, a petitioner must show that his counsel's representation “fell below an objective standard of reasonableness.” Id. at 688. The court must be “highly deferential” to 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 requires a petitioner to show that he was prejudiced by the ineffective assistance by ...


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