United States District Court, E.D. Washington
MEMORANDUM OPINION AND ORDER RE: MOTION TO
L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE
THE COURT is Defendant's pro se Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
(ECF No. 55) (“Motion”). Defendant seeks to
vacate his conviction, asserting: the conviction violates
double jeopardy, he received ineffective assistance of
counsel, and an alleged change in the United States
Sentencing Guidelines lowers his Guideline Range. (ECF No. 55
at 8, 10, 12). On April 19, 2017, Defendant filed a
Supplement consisting of one page alleging other instances of
ineffective assistance of counsel. The court has considered
this Motion pursuant to Rule 4(b) of the Rules Governing
Section 2255 Proceedings. This Order memorializes the
court's ruling on the Motion.
April 21, 2015, an Indictment was returned charging the
Defendant, Thomas Gregory Myers, with: (1) Possession of
Child Pornography in violation of 18 U.S.C. §
2252A(a)(5)(B); (2) Receipt of Child Pornography in violation
of 18 U.S.C. § 2252A(a)(2); and (3) Distribution of
Child Pornography in violation of 18 U.S.C. §
2252A(a)(2). (ECF No. 1).
31, 2015, Defendant pled guilty, pursuant to a Fed.R.Crim.P.
11(c)(1)(C) Plea Agreement, to Count 3 of the Indictment
charging him with Distribution of Child Pornography. (ECF No.
34); (ECF No. 36).
October 2, 2015, the court accepted the Plea Agreement and
sentenced Defendant to five years incarceration pursuant to
the terms of the Plea Agreement. See (ECF No. 48).
The remaining two counts were dismissed. See (ECF
No. 48). On October 2, 2015, Judgment was entered. (ECF No.
48). No appeal was taken therefrom.
March 29, 2017, Defendant filed the instant Motion. The court
notes the Motion was not prepared on the form required by
Local Civil Rule 9.1. Notwithstanding this noncompliance, the
court has considered the Motion and Supplement filed on April
prisoner serving a sentence imposed by a federal court
“may move the court which imposed the sentence to
vacate, set aside, or correct the sentence.” 28 U.S.C.
§ 2255(a). The permissible grounds for a motion brought
pursuant to 28 U.S.C. § 2255 are “that the
sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). Relief under 28 U.S.C. § 2255 should
only be granted where the claimed error is “a
fundamental defect which inherently results in a complete
miscarriage of justice” and presents “exceptional
circumstances where the need for the remedy afforded by the
writ of habeas corpus is apparent.” Davis v.
U.S., 417 U.S. 333, 346 (1974) (quoting Hill v.
U.S., 368 U.S. 424, 428 (1962)).
motion under 28 U.S.C. § 2255 may be denied as
procedurally defaulted if the claims presented in the motion
were not raised on direct appeal. Massaro v. U.S.,
538 U.S. 500, 504 (2003). However, a defendant may overcome
procedural default by showing “cause and
prejudice.” (Id.); see U.S. v.
Ratigan, 351 F.3d 957, 962 (9th Cir. 2003)
(including “actual innocence” as an exception to
the exhaustion requirement). Cause “must be something
external to the petitioner, something that cannot be
fairly attributed to him.” Coleman v.
Thompson, 501 U.S. 722, 753 (1991) (emphasis in
original). For example, cause is shown by “interference
by officials” or “a showing that the factual or
legal basis for a claim was not reasonably available to
counsel.” Murray v. Carrier, 477 U.S. 478, 488
(1986) (internal quotation marks and citation omitted).
establish prejudice, a petitioner bears the burden of proving
the alleged errors “worked to his actual and
substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.” U.S. v.
Frady, 456 U.S. 152, 170 (1982) (emphasis in original);
see also, U.S. v. Dean, 169 F.Supp.3d 1097,
1101 (D. Or. 2016) (“To warrant relief, a petitioner
must demonstrate that an error of constitutional magnitude
had a substantial and injurious effect or influence on the
guilty plea or the jury's verdict.”). Showing an
alleged error “created a possibility of
prejudice” is insufficient. Frady, 456 U.S. at
170. This standard is “significantly greater than that
necessary under ‘the more vague inquiry suggested by
the words clear error.'” Murray v.
Carrier, 477 U.S. 478, 493-94 (1986).
motion to vacate must be filed within one year of:
(1) the date on which the judgment of conviction becomes