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Cheves v. United States

United States District Court, E.D. Virginia, Newport News Division

December 8, 2014

UNITED STATES of AMERICA, Respondent. Civil Action No. 4:14cv19


HENRY COKE MORGAN, Jr., Senior District Judge.

This matter is before the Court on pro se Petitioner Gregory William Cheves's ("Petitioner" or "Cheves") Motion to Vacate under 28 U.S.C. § 2255 ("Motion" or "§ 2255 Motion"), Doc. 51. After reviewing the record, the Court FINDS that no hearing is necessary because "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). For the reasons stated herein, the Court DENIES Petitioner's Motion.


a. Events Leading to Petitioner's Guilty Plea

On February 14, 2012, a seven count Indictment was filed in open court, charging Petitioner with three counts of Distribution of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(2), and four counts of Receipt of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(2). Doc. 12. The Office of the Federal Public Defender was assigned to represent Petitioner, and Assistant Federal Public Defender Larry Dash served as his primary attorney. On March 18, 2012, Petitioner through Mr. Dash filed his First Motion to Continue the Trial Date. Doc. 18. Counsel requested the continuance in order to perform a competency evaluation. Id . The Court granted this motion on April 2, 2012. Doc. 19. Petitioner alleges that Mr. Dash never informed Petitioner he was moving for this continuance. Doc. 57 at 3. Before the evaluation, the Government submitted a written plea offer to Petitioner. Doc. 57 at 3; see also Doc. 65-1 at 2. Petitioner alleges that Mr. Dash subsequently informed him that a competency evaluation might result in a more advantageous plea agreement. Doc. 57 at 3. However, the plea agreement did not change following the evaluation. Id .; see also Doc. 61 at 5. On May 3, 2012, the courtroom deputy scheduled a plea agreement hearing for May 9, 2012; however, the hearing was terminated the next day per the request of Mr. Dash. On May 7, 2012, Mr. Dash filed a Second Motion to Continue the trial date. Doc. 20. In this motion, Mr. Dash represented to the Court that Petitioner had always intended to plead guilty, but on May 4, Petitioner informed counsel he wished to have a full jury trial. Id . On May 8, 2012, the Court granted this motion. Doc. 21. That same day, the Government sent a letter to Mr. Dash, informing him that its written plea offer would remain open until noon on May 10, 2012. Doc. 65-1. The next day on May 9, a plea agreement hearing was set for May 10.

At the hearing, the Court conducted a lengthy examination of Petitioner and Mr. Dash. Doc. 61. Petitioner was sworn in by the clerk. Id. at 2. The Court confirmed that only one written plea offer, to one count of distribution of child pornography, was offered to Petitioner. Id. at 5. Petitioner advised the Court that he had an opportunity to discuss his case with his attorney, and that he was satisfied with counsel's representation and advice. Id. at 10. Petitioner further advised that he entered into the plea agreement after consulting with counsel and reviewing the plea agreement with counsel. Id. at 11. The Court specifically asked if anybody forced Petitioner to sign the agreement, and he testified that no one had done so. Id. at 11-12. Mr. Dash advised the Court that he believed Petitioner wished to enter into the guilty plea. Id. at 13. Counsel further stated that he did not believe Petitioner had a meritorious defense. Id. at 16. Petitioner informed the Court he entered into this plea freely and voluntarily. Id. at 16-17. He advised he was entering into the plea because he was guilty of the crime charged. Id. at 17.

At the plea hearing, the parties entered a statement of facts concerning the offense conduct. In December 2011, an undercover law enforcement agent made contact with Petitioner over the Internet. Doc. 24 at 1. The agent was able to download fifty files from Petitioner's directory on a peer-to-peer file sharing program. Id . The agent also engaged in an online chat with Petitioner, in which Petitioner stated he was addicted to "kiddie porn" for fifteen years and that he would "like to get a real small one and really hurt him, maybe even kill." Id . In January 2012, another undercover agent accessed Petitioner's shared directory, and downloaded an additional hundred files. Id. at 2. A search warrant was obtained, and law enforcement agents searched Petitioner's residence on January 18, 2012. Id. at 2. The search revealed a computer manufactured outside the United States that had over 116, 000 images of child pornography. Id. at 3. In an interview with agents, Petitioner admitted that he was engaging in inappropriate behavior, and that the content of his chats were based on fantasies, and that he had never acted out on his fantasies. Id. at 3-4.

The Court asked Petitioner if the statement of facts was true and accurate, and Petitioner answered that it was, subject to revisions he noted on the document. Doc. 61 at 18. Mr. Dash informed the Court that the facts contained within were consistent with his investigation and conferences with his client. Id. at 17-18. Accordingly, the Court found there was an independent basis in fact to find that Petitioner was guilty of the offense beyond a reasonable doubt. Id. at 19. The Court found that the plea was entered freely and voluntarily, and the Court accordingly found Petitioner guilty of Count One of the Indictment. Id . The Court scheduled Petitioner's sentencing hearing for October 9, 2012. Id.

b. Deterioration of Relationship Between Petitioner and Counsel

On July 18, 2012, Petitioner sent Mr. Dash a letter which stated in its entirety:

Please be advised your services are terminated forthwith; you are to provide no further legal services on my behalf. Please provide me with a complete copy of my file sent to the address above.

Doc. 27-1. Mr. Dash then filed a Motion to Withdraw as counsel on July 27, 2012. Doc. 27. Mr. Dash represented that on several occasions, Petitioner expressed dissatisfaction with counsel. Id. at 1.

The Court held a hearing on the Motion to Withdraw on August 9, 2012. Doc. 28. At the hearing, Mr. Dash informed the Court that Petitioner made a complaint with the Virginia State Bar. Doc. 34 at 3. Mr. Dash also advised the Court that prior to the hearing, Petitioner refused to talk to him and co-counsel. Id.

Prior to explaining the reasons for his dissatisfaction with counsel, Petitioner was sworn in by the courtroom deputy. Doc. 34 at 2. Petitioner informed the Court that he was "not trying to deny my guilt whatsoever in this matter." Id. at 5. He stated that he even tried to plead guilty before a magistrate judge early in the proceedings. Id . Petitioner further averred that "I would actually like more time than is being offered to me, and the plea deal that was posed to me, I felt, was forced upon me by Mr. Dash." Id. at 5-6. Petitioner stated that Mr. Dash told him that if the case went to trial, the evidence would be shown in open court, that his family would be subpoenaed to testily against him, and that they would be shown the evidence in court. Id. at 6; see also Doc. 57 at 3. Petitioner then stated that he then learned that these representations were false. Id . Regarding his failure to consult with Mr. Dash, Petitioner stated he "heard Mr. Dash say to the marshal, We will see who wins in this court.'" Id.

When the Court noted that Petitioner had previously testified under oath that he was not forced into the plea agreement, Petitioner responded that he lied under oath at his plea hearing. Doc. 34 at 7. The Court further noted that counsel could not predict accurately what would happen at a trial because it depends on how the case unfolds, and that different attorneys would have different opinions as to what would happen in any given case. Id. at 8. The Court granted Mr. Dash's Motion to Withdraw, and appointed Kevin P. Diamonstein as Petitioner's new counsel. Docs. 29, 30.

Prior to the sentencing hearing, the Probation Office ("PO") prepared a Presentence Investigation Report ("PSR") outlining Petitioner's offense conduct, which was initially filed on August 27, 2012. Doc. 32. Mr. Diamonstein filed a submission on September 20, 2012, indicating that there were no objections to the PSR. Doc. 35. Shortly thereafter, on September 24, Mr. Diamonstein filed a Motion to Withdraw as counsel. Doc. 36. Mr. Diamonstein represented that on September 20 he learned that Petitioner's family had retained Gary C. Byler to represent Petitioner at his sentencing hearing. Id. at 2.

The Court held a hearing on Mr. Diamonstein's motion on October 2, 2012. Doc. 41. The Court did not allow Mr. Diamonstein to withdraw from the case, as sentencing was scheduled for the next week. Doc.62 at 4. The Court did, however, allow Mr. Bylerto note his appearance in the case, and instructed Mr. Diamonstein to offer any ...

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