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Lester v. United States

United States District Court, N.D. Ohio, Eastern Division

October 30, 2017

WILLIAM LESTER Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          MEMORANDUM OPINION AND ORDER

          DONALD C. NUGENT, United States District Judge

         This matter comes before the Court upon Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. (ECF #40). Petitioner seeks to vacate his sentence of one count of receiving and distributing visual depictions of real minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2). For the reasons set forth below, Petitioner's Motion is DENIED.

         FACTUAL AND PROCEDURAL HISTORY

         On December 15, 2015, a federal grand jury returned an indictment against Petitioner, charging Petitioner with one count of receiving and distributing visual depictions of real minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2). (ECF #1). On May 26, 2016, Petitioner plead guilty to the indictment. (ECF #22). A written plea notice was executed and read into the record in its entirety and was signed by Petitioner. (ECF #23). On August 11, 2016, a Presentence Investigation Report concluded that Petitioner had an adjusted offense level of 37 corresponding with an advisory guideline range of 210-240 months. (ECF #28). On August 18, 2016, Petitioner was sentenced to 180 months imprisonment; five years supervisory release; a special assessment of $ 100; and restitution in the amount of $4, 000. (ECF #32). The Court varied downward two levels on the finding that Petitioner did not have a positive role model in his formative years. Judgment was docketed on August 25, 2016. (ECF #33).

         Petitioner appealed his sentence to the Sixth Circuit Court of Appeals. (ECF #34). On appeal, Petitioner argued that the district court failed to consider Petitioner's objections to the prepubescent minor and the use of computer enhancements, that Petitioner's sentence was unreasonable when looking at other similar cases, and that the district court failed to consider the length of the sentence compared to hands-on offenders. The Sixth Circuit rejected Petitioner's arguments and affirmed Petitioner's sentence on May 31, 2017. (ECF #39).

         On July 6, 2017, Petitioner filed the present Motion to Vacate under 28 U.S.C. § 2255. (ECF #40). Petitioner claims that: (1) there was insufficient evidence to prove Petitioner's guilt; (2) the conduct of his defense attorney influenced his guilty plea making it invalid; (3) polygraph tests are generally inadmissable and Petitioner was under the influence of cold medicine making the results invalid; and (4) Petitioner's sentence was flawed and disparate as compared to similar cases. (ECF #40). On September 20, 2017, the Government filed a response in opposition to Petitioner's § 2255 motion. (ECF #47). Petitioner had until October 20, 2017 to file a response, but did not file one.

         ANALYSIS

         A petitioner that moves to vacate, set aside or correct a sentence pursuant to 28 U.S.C. § 2255 must demonstrate that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) it is otherwise subject to collateral attack. See 28 U.S.C. § 2255. As such, a court may grant relief under § 2255 only if a petitioner has demonstrated "a fundamental defect which inherently results in a complete miscarriage of justice." Id. (internal quotation and citation omitted). If a § 2255 motion, as well as the record, conclusively show that the petitioner is not entitled to relief, then the court need not grant an evidentiary hearing on the motion. See 28 U.S.C. § 2255; see also Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (stating that no evidentiary hearing is required where the "record conclusively shows that the petitioner is entitled to no relied") (quoting Arredonda v. United States, 178 F.3d 778, 782 (6th Cir. 1999)); Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996). In this case, the Government correctly points out that Petitioner's second claim is essentially ineffective assistance of counsel, his first and third claims are claims of actual innocence, and his fourth claim is improper sentencing.

         First, Petitioner has not set forth specific facts to show a claim of actual innocence. Further, Petitioner's claim of ineffective assistance of counsel does not satisfy the factors set forth in Strickland. Additionally, Petitioner's fourth claim of improper sentencing does not allege any constitutional or jurisdictional claim and falls outside the scope of § 2255 motions. Therefore, for the reasons set forth below, all of Petitioner's claims are denied.

         1) Actual Innocence

         Petitioner's first and third grounds for relief in his Motion to Vacate attempt to establish a claim of actual innocence. To establish a claim of actual innocence, a petitioner is required to present new evidence that establishes "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 327 (1995). The new evidence presented must be reliable and trustworthy. See Id. at 324. Here, Petitioner does not present any new reliable evidence. All the evidence that Petitioner asserts would show his innocence was known to him when he knowingly and voluntarily entered a guilty plea. Petitioner's argument that the Government did not prove that he used an electronic device is misplaced. The evidence of the IP address is sufficient to show that Petitioner used an electronic device that satisfied the elements of the crime charged.

         Petitioner also argues that his confession during the polygraph examination was improper because (1) he was under the influence of cold medication, and (2) he was unaware that his statements could be used in court against him. (ECF #40, p. 226-227). Neither assertion is supported by the record. First, the record clearly indicates that Petitioner was not under the influence of any type of medications at the time he gave his confession, including any over-the-counter medication. (ECF #47-1, p. 2). Second, Petitioner was advised of his rights before taking the polygraph exam. He signed a form that explicitly stated that "anything you say can be used against you in court." (ECF #47-3, p. 2). Further, the statements that Petitioner made during the exam are relevant, and would be admissible with or without the results of the polygraph exam. For these reasons, Petitioner's claims of actual innocence must fail.

         2) Ineffective Assistance of Counsel

         Petitioner's second ground for relief in his Motion to Vacate alleges ineffective assistance of counsel based on two separate allegations: (1) Petitioner's attorney coerced him into pleading guilty, and (2) the practice of procuring a guilty plea by threat of a more severe sentence if Petitioner went to trial is coercive generally. (ECF #40, p. 224). In order to prevail on an ineffective assistance of counsel claim, ...


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