United States District Court, E.D. Virginia, Alexandria Division
JAMES C. CACHERIS, District Judge.
This matter is before the Court on Petitioner Johnny Soza's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255. [Dkt. 43.] For the following reasons, the Court will deny Petitioner's motion.
On June 6, 2012, a federal jury indicted Petitioner on charges of enticing a minor in violation of 18 U.S.C. § 2422(b) ("Count I"), production of child pornography in violation of 18 U.S.C. § 2251(a) ("Count II" and "Count III"), and receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) ("Count IV"). (Indictment [Dkt. 1] at 1.) These charges stem from Petitioner's sexual relationship with a minor living in Canada. Petitioner met the victim through an online chat room in April 2011, and throughout the next several months they exchanged sexually explicit photographs and messages at Petitioner's urging. (Statement of Facts [Dkt. 29] at 1-3.)
On or about January 23, 2012, the victim's father discovered several sexually explicit messages and pictures from Petitioner. (Gov't Resp. [Dkt. 53] at 3.) The victim's father contacted Canadian authorities and sent a message to Petitioner. ( Id. ) Nevertheless, Petitioner continued to communicate with the victim through a friend's digital device. ( Id. at 4) On February 17, 2012, Petitioner drove to Canada and had sexual intercourse with the victim at a hotel. (Statement of Facts at 3.) Petitioner returned to the United States and was arrested in June 2012. (Arrest Warrant [Dkt. 9] at 2.)
As to the evidence in this case, the Government obtained over 15, 000 text messages between Petitioner and the victim, along with images of the victim's genitals, numerous emails, Skype logs, a hotel receipt, a picture of the victim and Petitioner at the hotel together, credit card statements showing that Petitioner purchase the hotel room, and taped interviews of Petitioner, the victim, and her father. (Gov't Resp. at 4.) The documentary evidence corroborated the victim's story of sexual exploitation. ( Id. )
In addition to the victim described above, analysis of Petitioner's online accounts revealed that he was actively enticing several other minors. (Gov't Resp. at 4.) In the text messages sent to these minors, Petitioner asked sexually suggestive questions and requested "naughty pictures." ( Id. ) He received at least one image of a minor showing her genitals. ( Id. at 5.)
Petitioner retained Karen Scarborough, an attorney licensed to practice in this jurisdiction, to represent him on these charges. (Mot. to Substitute [Dkt. 25] at 1-2.) Following negotiations, the Government offered to dismiss Counts II, III, and IV in exchange for a full plea to Count I. Petitioner agreed to this deal via a written plea agreement. (Plea Agreement [Dkt. 28] at 1.) In this agreement, Petitioner concurred that Count I carried a mandatory minimum of ten years' incarceration and a maximum term of life. ( Id. ) In a statement of facts filed in connection with his plea, Petitioner admitted to exchanging sexually explicit messages with the victim and engaging in sexual intercourse with her on at least one occasion. (Statement of Facts at 1-3.)
On August 10, 2012, Petitioner appeared before this Court and pled guilty to Count I. (Plea Mins. [Dkt. 27] at 1.) During the ensuing plea colloquy, Petitioner affirmed that he had reviewed the plea agreement, statement of facts, and indictment with his attorney. (Gov't Ex. B, Plea Tr. at 3.) He further informed the Court that his attorney had answered all of his questions and he was satisfied with her services. ( Id. ) The Court then discussed various provisions of the plea agreement, including the sentencing guidelines. ( Id. at 4.) Petitioner acknowledged that he understood everything discussed. The Court accepted Petitioner's guilty plea as knowingly, voluntarily, and intelligently made. ( Id. at 9.)
Petitioner appeared before the Court for sentencing on December 14, 2012. (Gov't Ex. C, Sentencing Tr. at 3.) With acceptance of responsibility, the presentence report calculated Petitioner's guidelines range at 168 to 210 months incarceration. ( Id. at 4.) Petitioner acknowledged that the offense conduct described in the presentence report was accurate. ( Id. at 3.) The Court adopted the presentence report but chose to grant a downward variance because Petitioner had no criminal history, had expressed extreme remorse, had a history of service to the community, and had a good support system as indicated "in a memo that's been submitted by Ms. Scarborough in this case." ( Id. at 9-11.) The Court ultimately sentenced Petitioner to the mandatory minimum of 120 months incarceration. ( Id. at 8.)
Petitioner did not appeal, but instead filed the instant motion on November 26, 2013. (Mot. to Vacate (as paginated by CM/ECF) at 17.) As grounds for relief, Petitioner claims that defense counsel provided ineffective assistance during plea negotiations and at the sentencing phase of his case. ( Id. at 4-6, 8-9.) Petitioner does not specify what relief he is seeking; however, it is apparent from his allegations that he wants the Court to, at the least, discard his guilty plea.
II. Standard of Review
A motion to vacate under 28 U.S.C. § 2255 allows a prisoner to challenge the legality of his sentence on four grounds: (1) "the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "the court was without jurisdiction to impose such sentence"; (3) "the sentence was in excess of the maximum authorized by law"; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The petitioner bears the burden of demonstrating his grounds for relief by a preponderance of the evidence. See Hall v. United States, 30 F.Supp.2d 883, 889 (E.D. Va. 1998).
A § 2255 motion is, in essence, a statutory federal habeas corpus action that collaterally attacks a sentence or conviction through the filing of a new proceeding, as contrasted with a direct appeal. See In re Jones, 226 F.3d 328, 332-33 (4th Cir. 2000) ("[Section] 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus[.]'" (quoting Davis v. United States, 417 U.S. 333, 343 (1974))). The existence of the right to pursue a collateral attack, however, does not displace a direct appeal as the "usual and customary method of correcting trial errors." United States v. Allgood, 48 F.Supp.2d 554, 558 (E.D. Va. 1999). Claims regarding trial or sentencing errors that could have been, but were not, raised on direct appeal are procedurally barred from review under § 2255. See Bousley v. United States , 523 U.S. 614, 621-22 (1998).
Nevertheless, an exception applies for claims of ineffective assistance of counsel, such as those asserted here. See United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998); United States v. King , 119 F.3d 290, 295 (4th Cir. 1997) ("[I]t is well settled that a claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance." (citation omitted)).
Under the standard promulgated in Strickland v. Washington, 466 U.S. 668 (1984), a petitioner is required to demonstrate two elements in order to state a successful claim for ineffective assistance: (1) "counsel's representation fell below an objective standard of reasonableness"; and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 688, 694.
To establish constitutionally deficient performance under the first prong, a petitioner must demonstrate that his lawyer "made errors so serious that counsel was not functioning as the counsel' guaranteed... by the Sixth Amendment." Strickland, 466 U.S. at 687. Such a showing must go beyond establishing that counsel's performance was below average, since "effective representation is not synonymous with errorless representation." Springer v. Collins, 586 F.2d 329, 332 (4th Cir. 1978); see also Strickland, 466 U.S. at 687. Given it is all too easy to challenge an act, omission, or strategy once it has proven unsuccessful, "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689.
In assessing performance, a court must apply a "heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691. A lawyer's decision not to pursue a defense does not constitute deficient performance if, as is typically the case, the lawyer has a reasonable justification for the decision. "[S]trategic choices made after thorough ...