United States District Court, D. Nevada
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).
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.
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.
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).
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).
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).
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
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
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.
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.