Petition for Writ of Certiorari — Timothy Sean Coogle, Petitioner v. United States

FILED: April 18,2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-6478

(2:17-cr-00167-l)

(2:18-cv-01291)

TIMOTHY SEAN COOGLE

Petitioner - Appellant

v.

UNITED STATES OF AMERICA

Respondent - Appellee

ORDER

The petitions for rehearing en banc were circulated to the full court. No

judge requested a poll under Fed. R. App. P. 35. The court denies the petitions for

\

rehearing en banc.

For the Court

/s/ Patricia S. Connor. Clerk

Appendix: A Doctet# 19 Fixrtii dealt Cburt of Appeals Ar^iait cn April 18, 2J23

FILED: January 6, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-6478

(2:17-cr-00167-1)

(2:18-cv-01291)

TIMOTHY SEAN COOGLE

Petitioner - Appellant

v.

UNITED STATES OF AMERICA

Respondent - Appellee

JUDGMENT

In accordance with the decision of this court, a certificate of appealability is

denied and the appeal is dismissed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR. CLERK

'jjftotty Sean Oxgte v. United states at Aieriba AJZi U.S. App. IfidS No. 2L-6478 (,4th Git. Jan 6, ’AJZi)

Appendix: B FCurtii Circuit (hurt of Appeals OartLfifcate of Appealability Ju^pent cn JariHry 6, AV3 ‘

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-6478

TIMOTHY SEAN COOGLE,

Petitioner - Appellant,

v.

UNITED STATES OF AMERICA,

Respondent - Appellee.

Appeal from the United States District Court for the Southern District of West Virginia, at

Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:17-cr-00167-l; 2:18-cv01291)

Submitted: September 30,2022

Decided: January 6,2023

Before THACKER, QUATTLEBAUM, and RUSHING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Timothy Sean Coogle, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Timothy Sean Coogle seeks to appeal the district court’s order accepting the

recommendation of the magistrate judge and denying relief on Coogle’s 28 U.S.C. § 2255

motion. The order is not appealable unless a circuit justice or judge issues a certificate of

appealability. See 28 U.S.C. § 2253(c)(1)(B). A certificate of appealability will not issue

absent “a substantial showing of the denial of a constitutional right.”

28 U.S.C.

§ 2253(c)(2). When the district court denies relief on the merits, a prisoner satisfies this

standard by demonstrating that reasonable jurists could find the district court’s assessment

of the constitutional claims debatable or wrong. See Buck v. Davis, 137 S. Ct. 759, 773-74

(2017).

When the district court denies relief on procedural grounds, the prisoner must

demonstrate both that the dispositive procedural ruling is debatable and that the motion

states a debatable claim of the denial of a constitutional right. Gonzalez v. Thaler, 565 U.S.

134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473,484 (2000)).

We have independently reviewed the record and conclude that Coogle has not made

the requisite showing.

Accordingly, we deny Coogle’s motion for a certificate of

appealability, deny as moot his motion to expedite, and dismiss the appeal. We dispense

with oral argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

DISMISSED

2

\1

h.

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 1 of 20 PagelD #: 783

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

TIMOTHY SEAN COOGLE,

Movant,

v.

Civil No. 2:18-cv-01291

Criminal No. 2:17-cr-00167-01

UNITED STATES OF AMERICA,

Respondent.

MEMORANDUM OPINION AND ORDER

Pending is the movant's pro se Motion to Vacate, Set

Aside, or Correct Sentence by a Person in Federal Custody

pursuant to 28 U.S.C. § 2255 and request for appointment of

counsel, filed September 7, 2018, and motion for an evidentiary

hearing, filed February 27, 2020.

ECF Nos. 42, 71.

This action was previously referred to the Honorable

Cheryl A. Eifert, United States Magistrate Judge, for submission

to the court of her Proposed Findings and Recommendation

("PF&R") for disposition pursuant to 28 U.S.C. § 636(b) (1) (B) .

On February 11, 2020, the magistrate judge entered her PF&R

recommending that the motion be denied, and that the civil

action be dismissed from the court's docket.

The movant filed

objections on February 27, 2020, to which the United States did

not respond.

Titotty Sean Qocgle v. IMfced States at Aneriba, 2UZL U.S. Mist LEXIS 66/2 GMil No. 2:18-cv

OcinfiBl No. 2:l7-cr-UU16/ (S.D.W.V. Jen. 13, 2UZL)

Appendix C

JgECEIVEP

MAY 2 2 2023

OFFICE OF THE CLERK

SUPREME COURT, U.S.

T

Ikfel°can±m Qatnion and Oxter Docket# 42 Southern

of test VSicgihila Ju%nent cn January 13, AM

V

<3

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 2 of 20 PagelD #: 784

Upon an objection, the court reviews a PF&R de novo.

Specifically, "[t]he Federal Magistrates Act requires a district

court to 'make a de novo determination of those portions of the

[magistrate judge's] report or specified proposed findings or

recommendations to which objection is made. t n

Diamond v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.

2005)

(emphasis in original)

I.

(quoting 28 U.S.C. 636(b)(1)).

Background

On January 14, 2018, the movant pled guilty in the

above-cited criminal action to one count of attempted enticement

of a minor, in violation of 18 U.S.C. § 2422(b).

ECF No. 53-1.

As part of the plea agreement, the movant stipulated to the

facts as addressed herein and waived his right to appeal or

collaterally attack the conviction or sentence, except that he

retained the right to appeal a sentence that exceeded the

statutory maximum or included an upward variance from the United

States Sentencing Guidelines (USSG), as well as the right to

challenge his conviction and sentence on grounds of ineffective

assistance of counsel.

The court held a thorough plea colloquy

on January 31, 2018 before accepting the movant's guilty plea.

On May 17, 2018, the court sentenced the movant to 121

months imprisonment after applying a three-level downward

2

V

<3

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 3 of 20 PagelD #: 785

variance from the recommended 168-210 months.

The sentence

amounted to just one month more than the statutory minimum

sentence of 120 months.

The movant had met the victim, a 13-year-old minor

female who resided in Kanawha County, West Virginia, when she

visited her extended family who lived "two houses down" from the

movant's home in North Carolina.

Id. at 37.

The minor

reportedly visited her relatives three or four times per year,

and she played with the movant's children and interacted with

the movant during those visits, as the neighboring families were

"close" friends.

Id. at 63-64.

On or about August 12, 2017,

the movant, who resided in North Carolina, sent a direct message

on the cell phone application Instagram from his username,

"sean_coogle," to the minor.

Id. at 9.

The movant asked the

minor if she shared her Instagram account with anyone and then

complimented a picture of her in a bikini, at the beach stating

that he "liked the picture."

Id. at 9.

to tell anyone what he had said.

He asked the minor not

Id.

On or about August 29, 2017, the minor's mother

discovered the messages on the minor's Instagram account.

Id.

After discovering the messages, the mother contacted law

enforcement.

Id.

The mother indicated that she was familiar

with the movant, that he had met the family and her daughter on

3

r

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 4 of 20 PagelD #: 786

prior occasions, and that he knew her daughter was a minor.

Id.

On August 31, 2017, a law enforcement officer (hereinafter

"UC/Minor") took over the minor's Instagram account and began

communicating with the movant in an undercover capacity.

Id.

In conversations with the UC/Minor, the movant

discussed the sexual activity that he wished to engage in with

the minor, stating that he wanted to be her first sexual

partner.

Id. at 10.

He confirmed that the minor was 13 years

old at the time they were communicating.

Id.

He told the minor

to wear the bikini from the picture when she came to visit in

October, adding that he wanted to "be the first to taste her,"

and stating that he liked that she was a virgin and

inexperienced, as he would teach her everything that she needed

to know regarding sexual activity.

Id.

On September 13, 2017, the movant sent the following

message to the UC/minor explaining his feelings for her: "Hey

baby! May be busy tonight, so I wanted to send you some

messages.

[Minor's name.]

I never was attracted to anyone as

young as you. You are a first.

and act mature.

I think because you look older

You are so very beautiful and sexy.

I think of

spending time with you and having fun as well as think of

feeling you on me.

Just wanted to say that.

4

Can we do a

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 5 of 20 PagelD #: 787

Facetime soon or trade some pictures or videos?

hold on to before we see each other."

Something to

Id.

On September 19, 2017, the movant urged the UC/minor

to send him explicit photos of herself, in the following

exchange:

sean_coogle: I want to see all of you

sean coogle: BAD!!

sean_coogle: I'm getting that feeling

sean_coogle: Ya know???

sean coogle: Let me see!

sean_coogle: Sorry! I was being bad! "Bad Boy Sean"

UC/Minor: No your fine haha

UC/Minor: Like see me naked?

sean_coogle:

(Four smiley faces) Emojis. j

sean_coogle: Where are you?

UC/Minor: Lol home

Id.

On September 20, 2017, following additional sexually

explicit conversations about the movant's sexual frustration and

what he wanted to do with the UC/minor when she came to visit

North Carolina, the movant sent the UC/Minor an 11-minute live

video stream of himself on the Instagram application in which he

removed his shorts and fondled his erect penis.

5

Id.

The movant

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 6 of 20 PagelD #: 788

asked the UC/Minor to send similar live video of herself

"touching it." Id.

V

On September 26, 2017, a federal grand jury in this

judicial district returned an indictment that charged the movant

with using a facility of interstate commerce to attempt to

entice a minor to engage in sexual activity in violation of 18

U.S.C. § 2422(b).

Id. at 14.

The movant was initially

appointed a federal public defender in his criminal case, but he

subsequently retained a North Carolina criminal defense

attorney, J. Darren Byers ("Byers"), to represent him.

31.

Id. at

On January 14, 2018, the movant entered into a plea

agreement with the government in which he agreed to plead guilty

to the one-count indictment.

II.

Id. at 1-13.

Objections

The movant raises six objections to the PF&R.

He

objects to the finding that he took a substantial step in

commission of the attempt, to the finding that he asked for or

received the UC/minor's assent, to the finding that he was not

entrapped, to the finding that he had a predisposition for

committing the offense, to the finding that he had not shown

ineffective assistance of counsel, and to the finding that he

had not shown actual innocence.

6

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 7 of 20 PagelD #: 789

The movant first objects that his communications with

the UC/minor did not amount to a substantial step sufficient to

corroborate his intent.

He contends that unlike in other

§2422(b) cases, he never arranged a meeting place, traveled to

an agreed location for sex, and that his speech alone is

insufficient to constitute a substantial step.

He also argues

that the messages do not show him steering the conversation

towards sexual topics.

In the context of criminal attempt, "a substantial

step is a direct act in a course of conduct1 planned to culminate

in commission of a crime that is strongly corroborative of the

defendant's criminal purpose."

405, 423 (4th Cir. 2012)

F.3d 131, 135

i

-United States v. Engle,

676 F.3d

(citing United States v. Pratt; 351

(4th Cir.2003)).

That inquiry focuses "on the

actions already taken to complete the (underlying)crime, not on

the acts that remain uncompleted and a court must assess howj

(probable it would have been that the crime would have been

committed—at least as perceived by the defendant-^-had intervening1

circumstances not occurred."

Id.

(internal citations omitted).

The Fourth Circuit in Engle held that while words and speech.'

ordinarily fall short of a substantial step,! in the context of a

§2422 (b) prosecution,' words and speech will often suffice to '

show a substantial step.

Id.

As the court explained, "the veryt

nature of the underlying offense—persuading, inducing or

7

1

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 8 of 20 PagelD #: 790

enticing engagement in unlawful sexual activity—necessarily

contemplates oral or written communications as the principal if

TS

not the exclusive means of committing the offense."

Id.

(quoting United States v. Rothenberg, 610 F.3d 621, 627 (11th

Cir.2010)).

Courts have found the substantial step element

established in §2422 (b) cases in which any one of four factors

are present: "(1) sexual dialog between Defendant and the

'minor;'

(2) repeated references to what would be performed upon ^

meeting the minor;

(3) the transmission of a sexually suggestive

photograph; and (4) travel by Defendant to meet the minor."

United States v. Kaye, 451 F.Supp.2d 775, 787 (E.D. Va. 2006).

The presence of any one of these elements may be sufficient to

establish the presence of a substantial step.

Id.

,in Jeffries v. United States is instructive.

2018 WL 4903267

(E.D. Va. Oct. 9, 2018).

The decision

The court found that arranging to meet

and have intercourse was not necessary where the movant had made

"an effort to convince the child to send pictures of her vagina

and masturbate while he 'talked' dirty to her."

n. 13.

Id. at *11,

The court also noted that the movant's act of pending a/

7

^photograph of his exposed and erect penis * to the UC/minor

constituted an act of enticement beyond mere words.

8

Id.

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 9 of 20 PagelD #: 791

The facts which the movant stipulated to and which he

Confirmed under oath establish that he took a substantial step. 1

The movant confirmed the minor was 13 years old at the time,jand

L______ __' ~ ~

'

^J

he sent messages saying that he wanted to be "the first to taste

her," that "[w]ell, I think that is third base.

But I wanna go

homerun." ^He discussed becoming the minor's first sexual

fpartner

that he often thought of "feeling [her] on [him] ," that

he wanted "to see all of [her]," stating "[l]et me see!" and

responding with four smiley faces when the UC/Minor asked the

movant if he meant that he wanted to see her naked.

The movant

told the UC/Minor that their conversations about what they would

do when the minor came to visit in October gave him an erection.

He sent a message stating, "I want to give this to you," and

then sent a live-streamed video to the UC/Minor of himself

fondling his erect penis.

The movant requested live videos of

the minor in return and asked, "show me what I type or take a

photo of you touching it!!".

Taken together, these

communications more than suffice in establishing a substantial

step in enticing the UC/minor to engage in sexual activity.

The movant now contests that he confirmed the minor

was under 13, that he "steered the path toward inappropriate

conduct," and that he asked the minor for sexually explicit

photographs, each of which he stipulated to in his plea

agreement and which he affirmed under oath to the court.

9

"[A]

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 10 of 20 PagelD #: 792

defendant's solemn declarations in open court affirming [a plea]

agreement ...

'carry a strong presumption of verity. / n

States v. White, 366 F.3d 291, 295 (4th Cir.2004)

Blackledge v. Allison, 431 U.S. 63, 76 (1977)

omitted).

United

(quoting

(alterations

"[I]n the absence of extraordinary circumstances, the

truth of sworn statements made during a Rule 11 colloquy is

conclusively established, and a district court should, without

holding an evidentiary hearing, dismiss any § 2255 motion that

necessarily relies on allegations that contradict the sworn

statements."

United States v. Lemaster, 403 F.3d 216, 221-22

(4th Cir. 2005).

The movant has evidenced no extraordinary

circumstance to justify relitigating these stipulated and

affirmed facts beyond his own unsubstantiated assertion that the

government altered Instagram messages, made for the first time

in the context of this § 2255 motion.

The movant is thus bound

by the facts he stipulated to and the objection is overruled.

The movant's second objection states that he did not

ask for or receive the UC/minor's assent to engage in sexual

activity.

This is not an element of the offense but appears to

be a challenge to the intent element of the statute.

The

Instagram messages demonstrate that the movant did "knowingly

attempt to convince the minor to achieve the mental state of

assenting to his sexual proposals" as required to establish

intent under the statute.

See Jeffries, 2018 WL 4903267, at

10

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 11 of 20 PagelD #: 793

*11.

As the Fourth Circuit has explained, § 2422(b) was enacted

to avert "the psychological sexualization of children" and can

be violated "regardless of the accused's intentions concerning

the actual consummation of sexual activities with the minor."

United States v, Fugit, 703 F.3d 248, 255 (4th Cir. 2012).

The

messages that the movant sent establish a knowing attempt to

convince the minor to assent to sexual proposals, even crediting

the movant's assertion that he did not actually intend to

consummate sexual activity.

The objection is overruled.

Third, the movant objects to the proposed finding that

he lacked a valid entrapment defense.

An entrapment defense at

trial involves a burden shifting approach, in which the

defendant must first show that the government induced him to

engage in the criminal activity.

United States v. Jones, 976

F.3d 368, 375-76 (4th Cir. 2019), cert. denied, 140 S. Ct. 113

(2019).

Once the defendant demonstrates government inducement,

the government then bears the burden of proving the defendant's

predisposition to have engaged in the criminal conduct.

Id.

To

prove inducement, the defendant must show "governmental

overreaching and conduct sufficiently excessive to implant a

criminal design in the mind of an otherwise innocent party."

United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993).

Such

governmental behavior must be more than "mere solicitation," and

must be "so inducive to a reasonably firm person as likely to

11

Case 2:17-cr-00167. Document 85 Filed 01/13/21 Page 12 of 20 PagelD #: 794

displace mens rea."

(4th Cir. 2004).

United States v. Hsu, 364 F.3d 192, 198

"Predisposition 'focuses upon whether the

defendant was an unwary innocent or, instead, an unwary criminal

who readily availed himself of the opportunity to perpetrate the

crime. i n

United States v. Young, 916 F.3d 368, 375-76 (quoting

Mathews v. United States, 485 U.S. 58, 63 (1988)).

In relation to inducement, the movant points to the

fact that the UC/minor used "flirtatious emojis," posed sexual

questions to him, would restart conversations after he had gone

quiet, and requested to meet him for sex.

He points out that he

only inquired into the UC/minor's age after several days of

communication1 and only sent the explicit video of himself

fondling his erect penis after several weeks.

The movant has not demonstrated inducement, even

accepting his version of the facts.

Sending f1irtatious

messages and the posing of sexual questions is the kind of "mere.

solicitation" which falls short of establishing inducement.

Such messages are not so coercive as to make an innocent person

commit crimes and to displace mens rea.

Moreover, the facts do

not bear out movant's self-characterization as a passive victim

1 This assertion contradicts the facts as stipulated and

affirmed. A law enforcement officer took over the minor's

account on August 31, 2017 and the movant confirmed the

UC/minor's age the very next day, September 1, 2017. ECF No.

53-1 at 38.

12

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of governmental overreach.

Rather, the movant was an active

participant, initiating contact with the minor, complimenting

her appearance in a revealing photograph, frequently^discussing j

sexual activity with the minor with minimal, if any,

instigation, and sending an unsolicited livestream video of

himself masturbating to the UC/minor.

Thus, the movant has not

shown that he would have been able to claim entrapment had this

case been brought to trial.

See Vinci v. United States, 2017 WL

1954541, at *5 (W.D.N.C. May 10, 2017)

(the movant's entrapment

claim would have failed because although the government

initiated the contact, the movant introduced the topic of sex,

actively requested sexy video and nude photographs of who he

believed was a 15-year-old girl, and suggested meeting for sex).

Fourth, the movant objects to the finding that he had

a predisposition to commit this crime.

As explained above,

predisposition is an element of the entrapment defense.

Because

the movant has not demonstrated inducement, the court need not

reach the issue of predisposition.

Still, the court notes that

the government had evidence of movant's predisposition to commit

crimes of this kind, including the touching of a minor's thigh

at church that led to a complaint with church leaders,

initiating internet contacts with other minor females, and

making inappropriate comments to the victim in this case before

the undercover agent took over her account.

13

ECF No. 53 at 12;

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 14 of 20 PagelD #: 796

see also ECF No. 53-1 at 115 (discussing at sentencing the fact

that the movant was found with his hand on the thigh of a 7year-old at church, attempted to open communication with other

minors over the Instagram application, and tried to establish a

sexual relationship with the victim in this case).

Fifth, the movant objects to the finding that he has

not demonstrated ineffective assistance of counsel.

Ineffective

assistance of counsel is a claim made under the Sixth Amendment

to the United States Constitution.

466 U.S. 668, 680 (1984).

Strickland v. Washington,

A criminal defendant bears the burden

>

of proving two prongs and "a failure of proof on either prong

ends the matter."

United States v. Roane, 378 F.3d 382, 404

(4th Cir. 1994).

The defendant must show (1) that counsel's

representation fell below an objective standard of

reasonableness and (2) that he was actually prejudiced by the

ineffective assistance of counsel.

"Judicial scrutiny of

counsel's performance must be highly deferential."

466 U.S. at 689.

Strickland,

The "court must indulge a strong presumption

that counsel's conduct falls within the wide range of reasonable

professional assistance ...

[and] that, under the circumstances,

the challenged action might be considered sound trial strategy."

Id.

(internal quotation marks omitted).

The inquiry under

Strickland is "whether an attorney's representation amounted to

incompetence under prevailing professional norms, not whether it

14

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 15 of 20 PagelD #: 797

deviated from best practices or most common custom."

v. Richter, 562 U.S. 86, 88 (2011).

Harrington

To establish the second

prong, the movant "must show that 'counsel made errors so

serious that counsel was not functioning as the counsel

guaranteed ... by the Sixth Amendment. / rr

642 F.3d 442, 450 (4th Cir. 2011)

DeCastro v. Branker,

(citing Harrington, 131 S.Ct.

at 787)) ; see also, Strickland, 466 U.S. at 687.

The movant

"must show that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

■v

probability sufficient to undermine confidence in the outcome."

Id. at 694.

A movant challenging a guilty plea on collateral

review based on ineffective assistance of counsel bears a

particularly heavy burden.

As the Supreme Court has explained:

When a criminal defendant has solemnly admitted in open

court that he is in fact guilty of the offense with which

he is charged, he may not thereafter raise independent

claims relating to the deprivation of constitutional rights

that occurred prior to the entry of the guilty plea. He may

only attack the voluntary and intelligent character of the

guilty plea by showing that the advice he received from

counsel was not within the standards set forth in [McMann

v. Richardson, 397 U.S. 759 (1970)].

Tollett v. Henderson, 411 U.S. 258, 267 (1973).

In proving

ineffective assistance of counsel following a guilty plea, a

movant must prove that 'Vthere is a reasonable probability that, 1

/but for counsel's errors,

[the movant]fwould not have pleaded ■

15

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 16 of 20 PagelD #: 798

guilty and would have insisted on going to trial."

Hill v.

Lockhart, 474 U.S. 52, 59 (1985).

The movant argues that his counsel, Byers, was

deficient and caused him to plead guilty, despite his innocence.

First, he argues that Byers' failed to prepare, conduct

interviews, or investigate the case, and that had he done so,

Byers would have discovered the supposed lack of evidence for

the offense.

He argues that the failure deprived him of the

opportunity to make an informed decision.

Second, he states

that Byers told him to accept the plea without adequately

explaining the plea deal further.

He contends that in court,

Byers told him how to respond to questions from the court.

"When evaluating objective reasonableness under the

prejudice prong of Strickland, the challenger's subjective

preferences ... are not dispositive; what matters is whether,

^proceeding to trial would have been objectively reasonable ~ih7

Sight of all of the facts.''

452-53 (4th Cir. 2015)

Christian v. Ballard, 792 F.3d 427,

(markings and citation omitted).

In

other words, the movant cannot satisfy Strickland "merely by

telling the court now that he would have gone to trial then if

he had gotten different advice" from Byers.

Id.

Rather, the

movant -must "convince the court that a decision to reject the:

16

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 17 of 20 PagelD #: 799

plea bargain would have been rational under the circumstances.",

Id.

The movant has not demonstrated that the decision to

plead guilty was objectively unreasonable and has not shown that

supposed deficiencies of counsel prejudiced him in deciding to

plead guilty.

To the contrary, for the reasons outlined supra,

the prosecution Jiad produced evidence sufficient to convict the^

vmovant of the offense to which he pled guilty and he lacked a

‘

credible defense to the charge.| The available evidence shows■

that the movant benefitted substantially from the decision to

plead guilty to the offense. } The recommended sentencing range

for the movant's charge was 168 to 210 months imprisonment.

The

movant received a three-level downward variance, to an advisory

range of 121 to 151 months, in part because of the extent of his

acceptance of responsibility.

In receiving the lowest end of

that range, the court credited the mercy sought for the movant I

by the minor's father, which may not have been sought if the

£-

movant had not fully accepted responsibility for his actions.

The movant was ultimately sentenced to 121 months, just one

month more than the statutory minimum.

Moreover, as part of the plea deal, the movant avoided

being charged with attempted production of child pornography, [18]

U.S.C. §§ 2251 (a) and (e)i

r

The movant sent a sexually explicit?

17

Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 18 of 20 PagelD #: 800

r ........ .............-

*

f".

video of himself to the UC/minor and requested a video of

herself masturbating!

The movant faced a statutory minimum

sentence of 15 years for attempted child pornography if

convicted and has not produced evidence to suggest he had a

viable defense to such charges either.

Avoiding this charge

provided defendant with a substantial benefit above going to

trial.

As such, Tthe defendant has not demonstrated prejudice

Resulting from his counsel's advice to plead guilty.

The

objection is overruled.

Sixth, the movant objects that he has demonstrated a

claim for actual innocence.

For the reasons explained herein,

the movant has not shown it more likely than not that no

reasonable juror would have found petitioner guilty beyond a

reasonable doubt of the offense, nor has he produced new

evidence to undermine that conclusion.

The objection is

overruled.

Additionally, the movant does not appear to have

objected to the magistrate judge's finding that the movant's

motion for appointment of counsel be denied as moot because he

lacks any potentially meritorious claim for relief under § 2255.

That finding is adopted as well.

Finally, the movant requests the court grant an

evidentiary hearing.

ECF No. 71.

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The request does not explain

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Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 19 of 20 PagelD #: 801

why the movant is entitled to an evidentiary hearing, but merely

states that it is needed given "issues on credibility, lack of

evidence, ineffective counsel, fabricated evidence, and a chance

to show [his] innocence."

Id.

Section 2255(b) provides, in

pertinent part: "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 ...."

28 U.S.C. § 2255.

As the Fourth Circuit has explained,

"[g]enerally, an evidentiary hearing is required under 28 U.S.C.

§ 2255 unless it is clear from the pleadings, files, and records

that a movant is not entitled to relief."

United States v.

Robinson, 238 Fed.Appx. 954, 954 (4th Cir. 2007)

(citing United

States v. Witherspoon, 231 F.3d 923, 925-26 (4th Cir. 2000) and

Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970)).

Whether an evidentiary "hearing may be necessary, and whether

petitioner's presence is required, is best left to the common

sense and sound discretion of the district judges."

Raines, 423

F.2d at 530.

The movant has simply failed to present any factual or

legal basis for relief.

Consequently, an evidentiary hearing is

not warranted and this request is denied.

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Case 2:17-cr-00167 Document 85 Filed 01/13/21 Page 20 of 20 PagelD #: 802

III. Conclusion

The court, accordingly, ORDERS as follows:

1. That the movant's objections to the PF&R be, and they

hereby are, overruled;

2. That the magistrate judge's Proposed Findings and

Recommendation be, and hereby are, adopted and incorporated

in full;

3. That the movant's motion to vacate, set aside, or correct

sentence under 28 U.S.C. § 2255 be, and hereby is, denied;

4. That the movant's motion for appointment of counsel be, and

hereby is, denied;

5. That the movant's motion for an evidentiary hearing be, and

hereby is, denied; and

6. This case be, and hereby is, dismissed from the docket of

the court.

The Clerk is directed to transmit copies of this

memorandum opinion and order to all counsel of record, to the

movant, and to the United States Magistrate Judge.

Enter: January 13, 2021

k.

Jo]

. Copenhaver, Jr.

Senior United States District Judge

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