United States District Court, D. Nevada
C. MAHAN UNITED STATES DISTRICT JUDGE.
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).
before the court is petitioner's motion to supplement his
amended § 2255 motion. (ECF No. 92).
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).
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.
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).
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).
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.
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).
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. ...