Maillet v. United States

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:17-cv-00244-MR

[CRIMINAL CASE NO. 1:14-cr-00004-MR]

ROBERT MAILLET, )

)

Petitioner, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

UNITED STATES OF AMERICA, )

)

Respondent. )

________________________________ )

THIS MATTER is before the Court on the Petitioner’s Motion under 28

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [CV1 Doc. 1].

I. BACKGROUND

The Petitioner Robert Maillet engaged in the trading and receipt of child

pornography on an international photo-sharing website. [CR Doc. 14:

Factual Basis at ¶ 1]. He created profiles on this website of

“WELLENDOWED” and “LOLIGIRL22.” [Id. at ¶ 2]. Under the LOLIGIRL22

profile, the Petitioner posted an album entitled “Girls to dream about” that

1 Because this Memorandum and Order must reference documents contained on the

docket in both Petitioner’s civil case and his criminal case, the Court will cite to documents

from the Petitioner’s civil case with the prefix “CV.” The Court will cite to documents from

the Petitioner’s criminal case with the prefix “CR.”

contained photographs of girls from 3 to 13 years old, some of whom were

dressed in bikinis or underwear. [Id.]. The Petitioner commented on the

album, stating: “These are nieces, friend’s kids, neighbors, etc. Feel free to

comment however you would like, dirty is fine, but in English.” [Id.]. Other

users posted sexual comments about the photos and requested to trade

photos. [Id.]. The Petitioner also posted an album entitled, “Girl on my

street,” which showed pictures taken from a window of his home of a girl who

lived in his neighborhood. [Id. at ¶ 3]. Another album he posted showed

prepubescent girls in sexually suggestive poses, including a nude 5 to 9-

year-old girl. [Id. at ¶ 4].

After Homeland Security Investigations (HSI) agents linked the

Petitioner’s LOLIGIRL22 profile to his home address, agents executed a

search warrant on November 22, 2013. [Id. at ¶ 6]. The Petitioner agreed

to be interviewed and admitted that he created and used the LOLIGIRL22

and WELLENDOWED profiles, that he visited the “kids” section of the photo-

sharing website, and that he used the website to view images of children in

bikinis, underwear, and in the nude. [Id. at ¶ 7]. The Petitioner also admitted

that he had posted images to the website and had received images of child

pornography and videos from other users of the website via email. [Id.].

2

Agents seized numerous computers, storage devices, and other

electronic media. [Id. at ¶ 6]. HSI Detective William Meadows conducted a

forensic analysis of the devices seized from the Petitioner’s home. [Id. at ¶

8]. On one Acer laptop computer, Meadows found email addresses

connecting the computer to the Petitioner, searches using terms to obtain

child pornography, visits to the targeted photo-sharing website, as well as

318 individual images of child pornography. [Id. at ¶ 8(a)]. The Petitioner

had edited photos of two girls to make a .gif file that showed him moving his

penis back and forth so that it looked like he ejaculated into their mouths.

[Id.]. Screen-capture software that the Petitioner used to record his computer

desktop showed a video of the Petitioner downloading child pornography and

saving it to his computer. [Id.]. Meadows found 3,442 individual images of

child pornography on a thumb drive. [Id.]. On a Western Digital hard drive,

Meadows found video screen captures of the Petitioner browsing the

internet, logging into the targeted website, searching for images of naked

underage girls, and saving these images to his computer. [Id. at ¶ 8(b)].

Meadows found 17,058 individual images of child pornography on this hard

drive, as well as 43 movies depicting child pornography, including one video

that ran for 38 minutes. [Id.].

3

One of the Petitioner’s email accounts showed an email that he

received stating, “Been gone for ahile and I’m back updating my list…looking

for hc or extreme vids..and black kids… no response in 3 days you will be

deleted from my contacts..I like it all..even with their pets.” [Id. at ¶ 8(c)

(typographical errors in original)]. Attached to the email were two videos of

child pornography. [Id.]. The Petitioner responded, “see what I can do.”

[Id.]. Including another three video files found through forensic examination

of the Petitioner’s thumb drive, the Petitioner had 24,268 images depicting

child pornography. [CR Doc. 25: PSR at ¶¶ 9-13].

A grand jury indicted the Petitioner, charging that between May 12,

2013, and November 27, 2013, he had knowingly received child

pornography, in violation of 18 U.S.C. § 2252A(a)(2) (Count One); that

between October 19, 2013, and November 1, 2013, he had knowingly

received child pornography, in violation of 18 U.S.C. § 2252A(a)(2) (Count

Two); and that on November 26, 2013, he had knowingly possessed or

accessed with intent to view child pornography, in violation of U.S.C. §

2252A(a)(5)(B) (Count Three). [CR Doc. 6: Indictment]. Assistant Federal

Public Defender Fredilyn Sison was appointed to represent the Petitioner.

The Petitioner entered into a written Plea Agreement with the

Government, pursuant to which he agreed to plead guilty to Counts One and

4

Three, in exchange for the dismissal of Count Two. [CR Doc. 13: Plea

Agreement at ¶¶ 1-2]. As part of this plea agreement, the parties agreed to

jointly recommend that the following guidelines be applied: a base offense

level of 22; a two-level enhancement for material involving prepubescent

minors; a four-level enhancement for material portraying sadistic conduct or

violence; a two-level enhancement for use of a computer to transmit the

material; a five-level enhancement because more than 600 images were

involved; and a three-level reduction for acceptance of responsibility. [Id. at

¶ 8]. The parties further agreed that the Court would decide whether the

enhancement for distribution applied and that either party could argue for

other enhancements or reductions, as well as seek a departure or variance.

[Id.]. The Petitioner agreed to waive the right to contest his conviction or

sentence on appeal and in any post-conviction proceeding, with the

exception of claims of ineffective assistance of counsel or prosecutorial

misconduct. [Id. at ¶¶ 19-20]. The Petitioner also agreed to pay full

restitution to all victims directly or indirectly harmed by his relevant conduct.

[Id. at ¶ 9(a)].

The Magistrate Judge conducted a hearing pursuant to Rule 11 of the

Federal Rules of Criminal Procedure. At this hearing, the Petitioner

confirmed that he understood the elements of the offenses and that he was

5

pleading guilty because he had in fact committed the acts described in

Counts One and Three of the Bill of Indictment. [CR Doc. 46: Plea Tr. at 10-

12, 14-16, 18-19, 20]. The Petitioner further confirmed that he understood

that the Court had the discretion to order him to pay restitution to any victim

of the offenses. [Id. at 18-19]. After the Government summarized the Factual

Basis for the plea, the Petitioner testified that he had read the entire Factual

Basis and that the facts set forth therein were true and accurate. [Id. at 26-

27]. He also signed a certification, stipulating to the truth and accuracy of

the Factual Basis. [CR Doc. 17: Certification]. The Petitioner affirmed that

his guilty plea was entered into freely and voluntarily and that, outside of the

Plea Agreement, no one had made him any promises or threatened him to

cause him to plead guilty. [CR Doc. 46: Plea Tr. at 27]. The Petitioner stated

that he understood and agreed to the terms in the Plea Agreement, including

the waiver of his appellate and post-conviction rights. [Id. at 30-31]. Finally,

the Petitioner testified that he had had ample time to discuss any possible

defenses with his attorney and that he was “entirely satisfied” with her

services. [Id. at 31-32]. The Magistrate Judge accepted the Petitioner’s

guilty plea, finding that it was knowingly and voluntarily made. [Id. at 33].

The Petitioner agreed to forfeit the following items: a Western Digital

hard drive; two Acer laptops; two Western Digital hard drives SN; three

6

Maxtor hard drives SN; two Seagate hard drives SN; and a PNY 30gb thumb

drive. [Id. at 34]. In so doing, the Petitioner confirmed that he owned these

items and that they were his personal property. [Id.].

In preparation for sentencing, a probation officer prepared a

presentence report (“PSR”), recommending the same offense levels and

adjustments as set forth in the Plea Agreement, plus a five-level upward

adjustment for distribution, for a total offense level (“TOL”) of 37. [CR Doc.

25: PSR at ¶¶ 19-24, 30-32]. The probation officer found that the Petitioner’s

criminal history category (“CHC”) was II, based on the Petitioner’s 2005

conviction for aggravated assault with intent to commit a felony, namely, lewd

or lascivious molestation committed on a child under 14 years of age. [Id. at

¶ 37]. The probation officer did not assign any criminal history points for the

Petitioner’s prior charge of indecent assault and battery on a child over 14

years of age for which the Petitioner completed four years of probation

without an imposition of adjudication. [Id. at ¶ 35]. Based on a TOL of 37

and a CHC of II, the probation officer calculated a Guidelines range of 235

to 293 months’ imprisonment. [Id. at ¶¶ 38, 69].

The Petitioner’s counsel objected to the PSR, arguing that the

applicable Guidelines range should be 235-240 months because possession

of child pornography is a lesser included offense of receipt of child

7

pornography and that sentencing him to more than the 20 year maximum

term of imprisonment for that charge would violate the Double Jeopardy

Clause. [CR Doc. 24: Obj. to PSR]. The Government responded that there

was no double jeopardy violation because the Petitioner pled guilty to

possession of images distinct from those that he had received. [CR Doc. 28:

Response to Obj.]. Defense counsel also filed a sentencing memorandum,

requesting a sentence below the Guidelines and citing the Petitioner’s own

childhood history of sexual and physical abuse. [CR Doc. 27: Sent. Memo.].

At the sentencing hearing, the Petitioner reaffirmed that the answers

he gave during the Rule 11 hearing were true; that he would give the same

answers if asked those questions again; and that his guilty plea was

voluntary. [CR Doc. 43: Sent. Tr. at 4-5]. The Petitioner stipulated to the

Factual Basis, as well as to the PSR. [Id. at 6]. He confirmed that he had

reviewed the PSR with his attorney and understood it. [Id. at 7-8]. The

Petitioner also stipulated to paying $3,000 in restitution for a victim from the

“Marine Land” series of images. [Id. at 14]. The Court raised an issue

regarding the statutory range of imprisonment in light of the Petitioner’s prior

conviction for indecent assault and battery on a child over 14 years old and

continued the hearing so that this issue could be addressed. [Id. at 8-10,

15].

8

At the continuation of the sentencing hearing, the Court overruled the

double jeopardy objection, finding that Count One applied to some images

and that Count Three applied to other images, so Count Three was not a

lesser included offense of Count One. [CR Doc. 44: 2d Sent. Tr. at 11]. This

Court also determined that the Petitioner’s prior conviction for indecent

assault and battery on a child was not a qualifying offense, so the enhanced

mandatory minimum did not apply. [Id. at 18-20]. The Court adopted the

PSR, finding that a guidelines range of 235 to 293 months applied. [Id. at

20-21].

The Petitioner’s counsel argued that many of the enhancements for

child pornography, such as sadomachism, prepubescent images, and use of

a computer, almost always applied, and that the number of images was

dependent on the amount of storage space a computer had, so these

characteristics were not specific to the Petitioner as an individual. [Id. at 21-

22]. Counsel asked the Court to consider the other people that he had

sentenced who had these enhancements and to prevent unwarranted

sentencing disparities. [Id. at 22]. She argued that despite the abuse the

Petitioner had suffered as a child, he had managed to get an education and

had the support of his fiancée and friends. [Id. at 22-24]. Counsel argued

that, even if the Petitioner received a ten-year sentence, he would be almost

9

70 years old by the time he was released, that older people are less likely to

be recidivists, and that he would still be on supervised release for the rest of

his life. [Id. at 24, 26]. She also asserted that despite the Court’s ruling on

the double jeopardy issue, the Court should not aggregate the sentences for

the two offenses. [Id. at 24-25]. She noted that the Court had sentenced

other offenders to between five and 17 and a half years and asked the Court

not to sentence him to anything more than ten years. [Id. at 25-26].

The Government argued for a 240-month sentence, citing the

Petitioner’s predatory behavior toward children, including hands-on conduct,

as well as the fact that he had not been deterred by his prior encounters with

the criminal justice system. [Id. at 26-28]. In addition to possessing

pornography, the Petitioner participated in the child pornography

“community” by posting images and emailing with other members. [Id. at

28]. The Government also argued that the evidence showed that age was

unlikely to reduce the Petitioner’s likelihood of being a recidivist. [Id.].

The Petitioner addressed the Court, stating that he would do “whatever

is necessary,” including psychological analysis or counseling, in order to

move forward, and that he was “sorry for everything that I have ever done

that might be considered wrong.” [Id. at 34, 35].

10

The Court imposed a 148-month sentence on both counts, to run

concurrently. [Id. at 35]. In fashioning the Petitioner’s sentence, the Court

noted that it did not find the Guidelines particularly helpful and that it was

basing the sentence on the Petitioner’s individual characteristics, finding that

he fell somewhere between a possessor of child pornography and a

producer. [Id. at 35-37]. The Court noted as aggravating factors the

Petitioner’s prior contact offense, the sadistic nature of some of the images,

and the quantity of images. [Id. at 36-37]. The Court recommended that the

Petitioner participate in sex offender and mental health treatment programs,

if eligible, and ordered him to pay $3,000 in restitution. [Id. at 38, 42]. The

Court also imposed a life term of supervised release, required the Petitioner

to register as a sex offender, and included as additional conditions that the

Petitioner submit to a mental health evaluation and treatment program under

the guidance of the Probation Office; that the Petitioner submit to a

psychosexual evaluation by a qualified mental health professional and

complete any treatment recommendations; and that the Petitioner refrain

from using or purchasing a computer that could be linked to the internet

without approval by a probation officer. [Id. at 38-41].

11

The Petitioner appealed, and attorney Lisa Costner was appointed to

represent him on appeal. [CR Docs. 35, 41]. Costner filed an Anders2 brief

and a supplemental brief, asserting that the Petitioner’s charges subjected

him to double jeopardy. United States v. Maillet, 668 F. App’x 488, 489 (4th

Cir. 2016). The Petitioner also filed a pro se supplemental brief. Id. The

Government moved to dismiss the appeal as barred by the waiver in the

Petitioner’s Plea Agreement. Id. On July 26, 2016, the Fourth Circuit

granted the Government’s motion to dismiss, holding that the Petitioner’s

waiver was “valid and enforceable.” Id. The Fourth Circuit issued its

mandate on September 26, 2016. [CR Doc. 50].

The Petitioner timely filed the present motion to vacate in August 2017,

asserting a number of claims of ineffective assistance of counsel. [CV Doc.

1]. He also filed a motion to amend in November 2017, adding a number of

factual and legal contentions to his claims. [CV Doc. 4]. The Government

filed a response to the Petitioner’s amended motion [CV Doc. 7], and the

Petitioner filed a reply [CV Doc. 12]. In April 2020, the Petitioner filed a

“Notice of Supplemental Authority to Movant’s § 2255 Motion to Include New

Supporting Cases Advancing Precedence” [CV Doc. 16].

2 Anders v. California, 386 U.S. 738 (1967).

12

Having been fully briefed, this matter is ripe for disposition.

II. STANDARD OF REVIEW

Pursuant to Rule 4(b) of the Rules Governing Section 2255

Proceedings, sentencing courts are directed to promptly examine motions to

vacate, along with “any attached exhibits and the record of prior proceedings”

in order to determine whether a petitioner is entitled to any relief. After

having considered the record in this matter, the Court finds that this matter

can be resolved without an evidentiary hearing. See Raines v. United States,

423 F.2d 526, 529 (4th Cir. 1970).

III. DISCUSSION

A. Ineffective Assistance of Counsel Standard

Under the Sixth Amendment, a criminal defendant has the right to

effective assistance of counsel. U.S. CONST. amend. VI. In order to

challenge a conviction based on the ineffective assistance of counsel, a

petitioner has the burden of establishing that: (1) defense counsel’s

performance was deficient, in that counsel’s “representation fell below an

objective standard of reasonableness” as measured by “prevailing

professional norms,” and (2) the petitioner suffered prejudice as a result.

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

13

In order to establish prejudice, a petitioner must demonstrate there is

“a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. In the context

of a claim of ineffective assistance of counsel at sentencing, a petitioner must

show that but for counsel’s deficient performance, there is a reasonable

probability that he would have received a lower sentence. See Royal v.

Taylor, 188 F.3d 239, 249 (4th Cir. 1999).

“A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 669. It is not sufficient

to show the mere “‘possibility of prejudice.’” Satcher v. Pruett, 126 F.3d 561,

572 (4th Cir. 1997) (quoting Murray v. Carrier, 477 U.S. 478, 494 (1986)). In

considering the prejudice prong, a court “can only grant relief under . . .

Strickland if the ‘result of the proceeding was fundamentally unfair or

unreliable.’” Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting

Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). If a petitioner fails to

conclusively demonstrate prejudice, the Court need not consider the

performance prong. United States v. Terry, 366 F.3d 312, 315 (4th Cir.

2004).

14

B. Claims of Ineffective Assistance of Trial Counsel

1. Claims of Pre-Plea Ineffective Assistance

The Petitioner argues that trial counsel should have verified the

authenticity of the search warrant and should have investigated whether

someone was colluding with the head investigator of the Department of

Homeland Security. He further contends that trial counsel should have

negotiated a better plea agreement. [CV Doc. 1 at 4-5; CV Doc. 4 at 2-3].

“When a defendant pleads guilty, he waives all nonjurisdictional

defects in the proceedings conducted prior to entry of the plea.” United

States v. Moussaoui, 591 F.3d 263, 279 (4th Cir. 2010) (citation omitted).

Thus, a knowing and voluntary guilty plea “forecloses federal collateral

review” of prior constitutional deprivations, including allegations of ineffective

assistance of counsel that do not affect the voluntariness of the plea. See

Fields v. Att’y Gen. of Md., 956 F.2d 1290, 1294-96 (4th Cir. 1992); accord

United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997); Wilson v. United

States, 962 F.2d 996, 997 (11th Cir. 1992); Smith v. Estelle, 711 F.2d 677,

682 (5th Cir. 1983). A guilty plea is valid when it “represents a voluntary and

intelligent choice among the alternative courses of action open to the

defendant.” Burket v. Angelone, 208 F.3d 172, 190 (4th Cir. 2000) (citing

North Carolina v. Alford, 400 U.S. 25, 31 (1970)).

15

Here, the record establishes that the Petitioner’s guilty plea was

knowingly and voluntarily made, and the Fourth Circuit recognized as much

when it upheld the validity of his appeal waiver. Because all of these claims

are non-jurisdictional and concern pre-plea conduct by counsel, the

Petitioner waived such claims by knowingly and voluntarily pleading guilty.3

See Fields, 956 F.2d at 1294-96.

Even if such claims were not waived, they would be dismissed as being

without merit. First, the Petitioner offers no evidence to suggest that the

warrant was defective. See United States v. Dyess, 730 F.3d 354, 359-60

(4th Cir. 2013) (holding it was proper to dismiss § 2255 claims based on

vague and conclusory allegations). In fact, the warrant on which the search

was based provided ample evidence connecting internet service and activity

from the Petitioner’s residence to a child pornography website where the

user of that IP address had posted albums containing various images of

prepubescent females, as well as sexually explicit comments. [See Case

No. 1:13-mj-00063, Doc. 3-1: Application for Search Warrant]. Because

there is no evidence in the record that the search warrant was defective, the

3 Although the Petitioner suggests in his motion to vacate that counsel pressured him to

sign the Plea Agreement, [see CV Doc. 1 at 4-5], he does not argue that his guilty plea

was involuntary or that, but for counsel’s actions, he would have proceeded to trial.

16

Petitioner has not met his burden to show deficient performance or prejudice.

See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (holding that a

petitioner cannot establish prejudice unless he proves that the “Fourth

Amendment claim is meritorious and that there is a reasonable probability

that the verdict would have been different absent the excludable evidence”).

As for the Petitioner’s claim that counsel failed to investigate collusion

between DHS and others, this claim is vague and conclusory. The Petitioner

does not identify any of the people allegedly involved, nor does he provide

any evidence of collusion. See Bassette v. Thompson, 915 F.2d 932, 940-

41 (4th Cir. 1990) (holding petitioner could not establish ineffective

assistance based on failure to investigate and call additional witnesses

where he did not set forth what an adequate investigation would have

revealed). Accordingly, this claim is dismissed.

Similarly, the Petitioner’s contention that trial counsel should have

negotiated a more favorable plea agreement is conclusory and speculative.

In any event, however, the Petitioner cannot show deficient performance or

prejudice. Counsel was able to negotiate the dismissal of one of the counts

against the Petitioner, managed to preserve the right to argue for a departure

or variance from the guidelines range, and obtained a three-level reduction

for acceptance of responsibility. There is no evidence that counsel could

17

have negotiated a better plea agreement, particularly given the

overwhelming evidence against the Petitioner. See Weatherford v. Bursey,

429 U.S. 545, 561 (1977) (recognizing that plea bargaining is matter of

prosecutorial discretion); United States v. Santiago, 632 F. App’x 769, 773-

74 (4th Cir. 2015) (determining defendant was not prejudiced by pleading

guilty where this resulted in his receiving a shorter term of imprisonment).

Accordingly, this claim is also dismissed.

2. Claim that Counsel was Ineffective for Failing to Seek

Dismissal of Indictment

Next, the Petitioner contends that trial counsel was ineffective for

failing to move to dismiss the Indictment. Specifically, he argues that the

charges of possession and receipt of child pornography were multiplicitous4

and subjected him to double jeopardy. [CV Doc. 1 at 2, 8-12].

“Multiplicity is the charging of a single offense in several counts.”

United States v. Fall, -- F.3d --, 2020 WL 1647190, at *6 (4th Cir. Apr. 3,

2020) (internal quotation marks and citation omitted). The Double Jeopardy

4 In his motion, the Petitioner refers to the counts in the Indictment as being “duplicative.”

[CV Doc. 1 at 12]. Duplicity, however, involves joining two or more separate offenses in

a single count. See United States v. Burns, 990 F.2d 1426, 1438 (4th Cir. 1993).

Because the Petitioner argues that the Indictment was defective because it charged with

a single offense in two different counts, the Court assumes that the Petitioner intended to

argue that the Indictment was multiplicitous. See id.

18

Clause of the Fifth Amendment prohibits the charging of multiple crimes that

“are in law and in fact the same offense.” United States v. Schnittker, 807

F.3d 77, 81 (4th Cir. 2015) (quoting United States v. Crew, 538 F.2d 575,

577 (4th Cir. 1976)).

Here, the Petitioner’s counsel argued at sentencing that charging the

Petitioner with the two offenses of possession and receipt violated Double

Jeopardy. As this Court found, however, the images on which the two

offenses are predicated were different. See Schnittker, 807 F.3d at 82-83

(4th Cir. 2015) (recognizing that no double jeopardy violation occurs as long

as a possession offense is based on a distinct image from a receipt offense);

United States v. Mason, 532 F. App’x 432, 436-37 (4th Cir. 2013) (rejecting

multiplicity challenge where possession and receipt charges were predicated

on distinct conduct). The Factual Basis identified two distinct instances of

receipt when the Petitioner received emails containing images of child

pornography. [CR Doc. 14: Factual Basis at ¶ 8(c)]. There also were screen

capture videos that showed the Petitioner downloading child pornography.

[CR Doc. 25: PSR at ¶ 8(a)(iii)(2), (b)(i]). Additionally, there were a number

of images of child pornography that the Petitioner possessed for which

evidence of receipt did not exist. [CR Doc. 44: 2d Sent. Tr. at 6-9]. Because

the two offenses involved distinct conduct and images, the Indictment was

19

not mulitplicitous, and the Petitioner cannot show deficient performance or

prejudice based on counsel’s failure to move to dismiss the charges set forth

therein on that basis.

3. Claim of Ineffective Assistance for Failing to “Object

Strongly” to Number of Images

Next, the Petitioner argues that his trial counsel should have required

the computer expert to be present at his sentencing hearing, that counsel

should have explained to this Court the difference between “instances,”

“images,” and “actual count,” and that counsel should have argued that the

number of images needed to be determined by a jury, rather than through

the PSR. [CV Doc. 1 at 13, 16-18, 22]. He contends that, during pre-plea

discussions, the computer expert had asked counsel whether the difference

between 3,000 and 24,000 images made a difference, and counsel had

responded, “no.” [Id.]. The Petitioner further asserts, without support, that

the computer expert determined that the majority of the images were “not

attributable” to the Petitioner and that not all of the images for which he was

ultimately held responsible were found on his computer. [Id. at 5]. He further

speculates as to whether the number of “instances” could have been reduced

and contends, without support, that “since a jury did not make this decision,

the least amount must stand, which would be three or none.” [Id. at 14]. The

20

Petitioner further contends that he owned only the two laptop computers and

that the other electronics in his room had been abandoned by an ex-

housemate of his. [Id. at 14-15].

Here, the certified Factual Basis and the uncontested PSR supported

the Court’s finding that the Petitioner’s offenses involved over 24,000 images

of child pornography. [See CR Doc. 14: Factual Basis at ¶ 8; CR Doc. 25:

PSR at ¶¶ 9-13]. The Petitioner stipulated to the Factual Basis, including the

number of images for which he was responsible. The Petitioner’s current

attempts to disclaim the electronic equipment he possessed and the number

of images at issue are in direct contradiction to his prior, sworn

representations to this Court in which he admitted his guilt and stipulated to

the Factual Basis. Statements made by a defendant under oath at a plea

hearing carry a “strong presumption of verity” and present a “formidable

barrier” to subsequent collateral attacks. Blackledge v. Allison, 431 U.S. 63,

73-74 (1977). “[C]ourts must be able to rely on the defendant’s statements

made under oath during a properly conducted Rule 11 plea colloquy.” United

States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005).

The Petitioner’s contention that a jury should have determined the

number of images is entirely without merit. So long as the Court considers

the guidelines range advisory and does not find facts that would increase a

21

sentence above the statutory maximum, the Court may find facts by a

preponderance of the evidence. United States v. Benkahla, 530 F.3d 300,

312 (4th Cir. 2008). Such findings do not violate the Sixth Amendment. See

id.; United States v. Battle, 499 F.3d 315, 322-23 (4th Cir. 2007). As noted

above, the certified Factual Basis and the uncontested PSR supported the

finding that the Petitioner’s offenses involved over 24,000 images of child

pornography. Under the Guidelines, the five-level enhancement for the

number of images involved in the offense required a finding of only 600

images. U.S.S.G. §§ 2G2.2(b)(7). The number of images found by the Court

to be involved in the Petitioner’s offenses did not impact his statutory range

of punishment, so the Petitioner’s Sixth Amendment rights were not violated.

See 18 U.S.C. § 2252A(b)(1) (5-20 years of imprisonment), (b)(2) (not more

than 20 years of imprisonment). For these reasons, the Court concludes that

the Petitioner has not met his burden to show that trial counsel’s failure to

challenge the number of images or to request a jury determination of this

issue was deficient, or that he was prejudiced thereby. This claim, therefore,

is dismissed.

4. Other Sentencing Claims

The Petitioner argues that he should not have to register as a sex

offender, and he contends that the Sex Offender Registration and

22

Notification Act (SORNA) is unconstitutional because it violates the

Necessary and Proper Clause, as well as the Commerce Clause and

because it is unconstitutionally vague. [CV Doc. 1 at 27; CV Doc. 4 at 6-8].

The Petitioner further contends this Court erred in awarding him three

criminal history points because it should have applied the categorical

approach, and that, under the least culpable portion of the state statute under

which he was convicted, an offense would have been a misdemeanor. [CV

Doc. 4 at 12].

Because the Petitioner attempts to raise these issues directly, rather

than as ineffective assistance claims, they are barred by the appellate waiver

in his Plea Agreement. [CR Doc. 13: Plea Agmt. at ¶¶ 19-20]. As such,

these claims are dismissed.

5. Claim of Ineffective Assistance Based on Failure to

Object to Restitution

The Petitioner argues that trial counsel should have objected to his

having to pay restitution, as well as to the amount of restitution imposed. [CV

Doc. 1 at 5, 29-31, 34].

Because restitution is a financial penalty, not a physical constraint on

liberty, the Petitioner may not challenge the order of restitution in a § 2255

proceeding. See United States v. Hudgins, 201 F. App'x 142, 143 (4th Cir.

23

2006) (per curiam). The fact that the Petitioner is alleging ineffective

assistance with respect to restitution does not change this result, because

he is still seeking to challenge a non-custodial restitution order. See

Kaminski v. United States, 339 F.3d 84, 85 n.1 (2d Cir. 2003) (recognizing

that, even if defendant could show ineffective assistance with respect to

restitution, the district court lacked subject matter jurisdiction to grant relief

under § 2255). Thus, the Petitioner’s claim that his counsel provided

ineffective assistance with respect to the order of restitution is hereby

dismissed.

6. Claim of Ineffective Assistance at Sentencing

Next, the Petitioner argues that trial counsel was deficient because her

request for a sentence of no more than 120 months “blocked” the Court from

further reducing his sentence. [CV Doc. 1 at 36]. He further contends that

he asked counsel to request a sentence of 36-48 months but that she failed

to do so. The Petitioner contends that a sentence of 36 to 48 months would

have been sufficient for a possession offense. [Id. at 36, 38-39].

The Petitioner’s arguments are without merit. The Petitioner’s

conviction on Count One carried a five-year mandatory minimum sentence,

so trial counsel had no basis for arguing that he should receive a sentence

below five years. Counsel’s request for a sentence of no more than ten

24

years—when the Guidelines range was from 235 to 293 months of

imprisonment—was not deficient and did not prejudice him. Counsel’s

advocacy persuaded the Court to vary downward from the Guidelines by

over seven years. Accordingly, the Petitioner has not shown that counsel’s

performance was deficient in this regard or otherwise prejudiced him. This

claim therefore is dismissed.

7. Claim of Ineffective Assistance for Failing to Object to

Supervised Release Term

Next, the Petitioner argues that trial counsel should have objected to

the life term of supervised release, as well as to the conditions imposed

restricting his access to the internet and requiring him to undergo counseling.

[CV Doc. 1 at 24-25, 28-35, 40]. He contends that because he is 61 years

old, he is unlikely to reoffend. [Id. at 41]. Further, the Petitioner contends

that he does not need counseling and that requiring him to undergo such

treatment would only “further stigmatize” and punish him and “impede[ ] his

return to society and to have a chance at a normal life.” [Id. at 35].

A lifetime term of supervised release is authorized and recommended

for sex offenders. U.S.S.G. § 5D1.2(b). Participation in treatment programs

and limitations on computer usage also are recommended for sex offenders

under the Sentencing Guidelines. See U.S.S.G. § 5D1.3(d)(7). Courts have

25

routinely upheld such limitations. See, e.g., United States v. Mixell, No. 18-

4563, 2020 WL 1563322, at *3 (4th Cir. Apr. 1, 2020) (“Special conditions

involving limitations on computer use or required computer monitoring have

been upheld when the defendant has a history of using a computer or the

Internet to commit present or prior crimes.”); United States v. Granger, 117

F. App’x 247, 248-49 (4th Cir. 2004) (recognizing restriction on possession

or use of computer during supervised release was not overly broad); United

States v. Carpenter, 803 F.3d 1224, 1239 (11th Cir. 2015) (recognizing that

“our cases have uniformly upheld conditions prohibiting defendants

convicted of sex offenses from accessing a computer or the Internet for the

duration of their supervised release”).

Here, this Court carefully considered the § 3553(a) factors and

imposed conditions of supervised release that were tailored to the

Petitioner’s history and characteristics, as well as the need to protect the

public. [CR Doc. 44: 2d Sent. Tr. at 38-41]. Counsel’s failure to object to the

terms of supervised release did not fall below an objective standard of

reasonableness, and the Petitioner has not shown that this prejudiced him

because there was a reasonable probability that he otherwise would have

received a lower sentence. Therefore, his claim that his counsel was

26

ineffective for failing to object to the term of supervised release and the

conditions imposed is hereby dismissed.

C. Claims of Ineffective Assistance of Appellate Counsel

The Petitioner argues that his appellate counsel never contacted him

and that he only discovered that counsel had filed an Anders brief when he

received it from the Court of Appeals. [CV Doc. 1 at 43-44]. He further

contends, albeit in a conclusory fashion, that counsel should have

challenged on appeal the length of his sentence, as well as the term of

supervised release. [Id. at 44].

Courts ordinarily find ineffective assistance for failure to raise claims

on appeal only when “ignored issues are clearly stronger than those

presented.” Smith v. Robbins, 528 U.S. 259, 288 (2000) (internal citation

and quotation marks omitted). Appellate counsel is not required to assert all

non-frivolous issues on appeal. Griffin v. Aiken, 775 F.2d 1226, 1235 (4th

Cir. 1985). Rather, “it is the hallmark of effective appellate advocacy” to

winnow out weaker arguments and to focus on more promising issues.

Smith v. Murray, 477 U.S. 527, 536 (1986). Thus, “[a] decision with respect

to an appeal is entitled to the same presumption that protects sound trial

strategy.” Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993). The

petitioner still bears the burden to show that there is a reasonable probability

27

that but for counsel’s failure to raise an issue on appeal, the result of the

proceeding would have been different, i.e., he would have prevailed on

appeal. See Robbins, 528 U.S. at 285-86.

While the Petitioner contends that appellate counsel should have

challenged the length of his sentence and the term of supervised release

imposed, such issues would have clearly been barred by the appellate

waiver provision in his Plea Agreement. Thus, even if counsel had raised

these claims, the Petitioner cannot show prejudice because these claims

would have been deemed waived and thus dismissed. The Petitioner’s claim

that appellate counsel provided ineffective assistance is without merit and is

therefore dismissed.

IV. CONCLUSION

For the foregoing reasons, the Petitioner’s motion to vacate is denied

and dismissed. The Court further finds that Petitioner has not made a

substantial showing of a denial of a constitutional right. See generally 28

U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38

(2003) (in order to satisfy § 2253(c), a “petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong”) (citing Slack v. McDaniel, 529 U.S.

473, 484-85 (2000)). The Petitioner has failed to demonstrate both that this

28

Court's dispositive procedural rulings are debatable, and that the motion to

vacate states a debatable claim of the denial of a constitutional right. Slack

v. McDaniel, 529 U.S. 473, 484-85 (2000). As a result, the Court declines to

issue a certificate of appealability. See Rule 11(a), Rules Governing Section

2255 Proceedings for the United States District Courts, 28 U.S.C. § 2255.

ORDER

IT IS, THEREFORE, ORDERED that the Petitioner's Motion to Vacate,

Set Aside, or Correct Sentence [CV Doc. 1] is DENIED and DISMISSED.

IT IS FURTHER ORDERED that the Court declines to issue a

certificate of appealability.

IT IS SO ORDERED.

Signed: April 20, 2020

A Reidinger ie Re

United States District Judge Aa

29