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United States v. Myers

United States District Court, E.D. Washington

April 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS GREGORY MYERS, Defendant.

          MEMORANDUM OPINION AND ORDER RE: MOTION TO VACATE

          JUSTIN L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE

         BEFORE 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.

         I. Procedural History

         On 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).

         On July 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).

         On 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.

         On 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 19, 2017.

         II. Discussion

         A 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)).

         A 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).

         To 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).

         A. Timeliness

         A motion to vacate must be filed within one year of:

(1) the date on which the judgment of conviction becomes ...

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