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United States v. Calhoun

United States District Court, D. Nevada

March 9, 2018

UNITED STATES OF AMERICA, Plaintiffs,
v.
JOSHUA FORBES CALHOUN, Defendants.

          ORDER

         Presently before the court is petitioner Joshua Calhoun's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 72).

         I. Facts

         On May 18, 2015, petitioner entered a plea agreement with the government (ECF No. 39) and agreed to plead guilty to receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b). The plea agreement included, inter alia, a waiver of the right to appeal his conviction and sentence, except an upward departure, and all non-waivable claims of ineffective assistance of counsel. Id.

         On August 17, 2016, the court sentenced petitioner to 180 months custody, followed by a lifetime of supervised release. (ECF No. 52). Petitioner was advised of his rights to file an appeal. (ECF No. 52). The court entered judgment on August 24, 2016. (ECF No. 54) Petitioner filed an appeal (ECF No. 57), but later voluntarily dismissed the appeal (ECF No. 67). Petitioner was represented by Chris Arabia, Esq.

         In the instant motion, petitioner moves to vacate, arguing ineffective legal counsel based on four separate grounds or in the alternative, appoint new counsel. (ECF No. 72).

         II. Legal Standard

         Federal prisoners “may move . . . to vacate, set aside or correct [their] sentence” if the court imposed the sentence “in violation of the Constitution or laws of the United States . . . .” 28 U.S.C. § 2255(a). Section 2255 relief should be granted only where “a fundamental defect” caused “a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 345 (1974); see also Hill v. United States, 368 U.S. 424, 428 (1962).

         Limitations on § 2255 motions are based on the fact that the movant “already has had a fair opportunity to present his federal claims to a federal forum, ” whether or not he took advantage of the opportunity. United States v. Frady, 456 U.S. 152, 164 (1982). Section 2255 “is not designed to provide criminal defendants multiple opportunities to challenge their sentence.” United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).

         III. Discussion

         To prevail on a claim of ineffective assistance of counsel, the petitioner must show deficient performance and prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

         “First, the defendant must show that counsel's performance was deficient.” Id. at 687. “Judicial scrutiny of counsel's performance must be highly deferential.” Id. at 689. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight . . . .” Id. at 689. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689. To establish deficient performance, the petitioner “must show that counsel's representation fell below an objective standard of reasonableness.” Id. at 688.

         “Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. “The defendant 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 probability sufficient to undermine the confidence in the outcome.” Id. at 694.

         1. Ground One

         Calhoun argues his defense counsel, Paul Riddle's (“Riddle”) failure to file a motion to dismiss indictment and failure to adequately investigate his prior criminal history before recommending he enter a plea of guilty to receipt of child pornography under 18 U.S.C. § 2252A(a)(2), which was subsequently enhanced under 18 U.S.C. ...


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