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United States v. Calhoun

United States District Court, D. Nevada

June 27, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSHUA FORBES CALHOUN, Defendant.

          ORDER

          JAMES C. MAHAN UNITED STATES DISTRICT JUDGE.

         Presently before the court is petitioner Joshua Forbes Calhoun's amended motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 87). The government filed a response (ECF No. 94), to which petitioner replied (ECF No. 95).

         Also before the court is petitioner's motion to supplement his amended § 2255 motion. (ECF No. 92).

         I. Facts

         On September 1, 2015, a grand jury indicted petitioner for one count of receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1). (ECF Nos. 15, 17). On May 18, 2016, petitioner pleaded guilty. (ECF Nos. 37, 39). The plea agreement included, inter alia, a waiver of the right to appeal his conviction and sentence, except an upward departure or non-waivable claim of ineffective assistance of counsel. (ECF No. 39).

         In the plea agreement and at the change of plea hearing, petitioner admitted that he downloaded images depicting child pornography on LimeWire, a peer-to-peer software. (ECF Nos. 37, 39). Petitioner further admitted that he uploaded those images to his Google account to actively trade child pornography with other members. Id. Lastly, petitioner admitted that he was previously convicted in Colorado for sexual exploitation-no consent, which enhanced the penalties under § 2252A(a)(2) to a mandatory minimum term of fifteen years. Id.

         On August 17, 2016, the court sentenced petitioner to 180 months of custody to be followed by a lifetime term of supervised release. (ECF No. 52). The court entered judgment on August 24, 2016. (ECF No. 54). Now, petitioner moves to vacate his sentence, arguing two grounds of ineffective assistance of counsel. (ECF No. 87).

         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

         As a preliminary matter, petitioner requests to supplement his amended motion with the argument that he did not receive effective assistance of counsel because his trial attorney did not adequately investigate his criminal history and discover that he was subject to a fifteen-year mandatory minimum. (ECF No. 92). On March 9, 2018, the court issued an order rejecting this argument. (ECF No. 74). Therefore, the court will deny petitioner's motion to supplement his amended § 2255 motion.

         Petitioner moves to vacate his sentence on two grounds of ineffective assistance of counsel. (ECF No. 87). To prevail on such claims, 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. ...


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