United States District Court, E.D. Washington
ORDER DENYING § 2255 MOTION
FREMMING NIELSEN ENIOR UNITED STATES DISTRICT JUDGE
the Court is Movant's 28 U.S.C. § 2255 Motion to
Vacate, Set Aside or Correct Sentence. ECF No. 64. The Motion
is submitted by Randall Maurice Peterson, who is appearing
pro se in these proceedings.
Peterson was indicted on September 1, 2015, for: (1)
Production of Child Pornography; (2) Receipt of Child
Pornography; and (3) Possession of Child Pornography. Mr.
Peterson pled guilty to Count 3 on March 9, 2016. Counts 1
and 2 have mandatory minimum sentences for 15 and 5 years,
respectively, if convicted. In the Plea Agreement, the
Government agreed to dismiss Counts 1 and 2 in return for
several concessions including admitting guilt to Count 3 and
waiver of appeal of the conviction and sentence as a part of
the Plea Agreement. Mr. Peterson pled guilty and the Court
sentenced him in accordance with the Rule 11(c)(1)(C) agreed
relief, Mr. Peterson must establish that (1) he is in custody
under a sentence of this federal court; (2) his request for
relief was timely; and (3) the court lacked either personal
or subject matter jurisdiction, the conviction or sentence is
unconstitutional, the conviction or sentence violates federal
law, or the sentence or judgment is otherwise open to
collateral attack. 28 U.S.C. § 2255. Mr. Peterson
satisfied the first two requirements. To meet his burden on
the third prong he alleges several constitutional violations
ranging from violation of the Fourteenth Amendment to cruel
and unusual punishment. Each of these alleged violations stem
from Mr. Peterson's primary concern that his counsel
provided ineffective assistance by failing to file a motion
to suppress evidence. Mr. Peterson contends that had such a
motion been filed, it would have been granted and that the
charges would have been dismissed.
order to prevail on his ineffective assistance claims, Mr.
Peterson must prove that counsel's performance was
deficient and that he was prejudiced by this deficient
performance. United States v. Strickland, 466 U.S.
668, 687 (1984). Courts 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." Strickland, 466 U.S. at
689. "A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time."
Id. at 689 (internal citations omitted). In order to
show prejudice, Mr. Peterson must show that but for
counsel's errors the results of the proceeding would have
been different. Id. at 694.
to Mr. Peterson's claim that his "attorney never
told me that the evidence could be thrown out if we attacked
it on grounds of illegal search and seizure, " the Court
notes that a Motion to Suppress was filed before the Court
alleging that "Law enforcement searched Randall
Peterson's S.D. card without a warrant . . . Thus the
warrantless search violated Randall Person's Fourth
Amendment right against unreasonable searches and
seizures." Defendant's Motion to Suppress Evidence,
pg. 1, ECF No. 34. Further, the record reflects that Mr.
Peterson was aware such a motion was filed. At a hearing on
February 17, 2016, where Mr. Peterson was present and in the
custody of the United States Marshals Service, defense
counsel indicated on the record that an evidentiary hearing
on the pending Motion to Suppress would be necessary if the
parties were unable to resolve the case by plea agreement.
See ECF No. 38. Mr. Peterson seems to acknowledge that he was
aware of the Motion as he indicates in his § 2255 Motion
that he was not aware of the initial lack of warrant
"until it was mentioned in court." Defendant's
Motion Under 28 U.S.C. § 2255, p. 4, ECF No. 64. Less
than a month later Mr. Peterson entered a plea of guilty to
possession of child pornography. His counsel negotiated a
deal with the Government that involved not only dismissing
the two more serious counts pending in Federal court, but
also allowed Mr. Peterson to withdraw from his Plea Agreement
if the state charges were not dropped.
to Mr. Peterson's assertions, there is no guarantee that
the Court would have granted the Motion to Suppress Evidence.
His counsel made a sound decision to use the possibility that
the Court could toss out the S.D. card to negotiate a plea
deal that weighed heavily in Mr. Peterson's favor. Mr.
Peterson clearly agreed with the decision at the time because
he entered a guilty plea while the Motion to Suppress was
appeal of this Order may not be taken unless this Court or a
circuit justice issues a certificate of appealability finding
that "the applicant has made a substantial showing of
the denial of a constitutional right." 28 U.S.C. §
2253(c)(2) (West 2013). This requires a showing that
"reasonable jurists would find the district Court's
assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484
(2000). Based on the Court's preceding analysis, the
Court concludes that jurists of reason would not differ with
the Court's conclusion. Thus a certificate of
appealability should not issue.
Court has reviewed the file and Mr. Peterson's Motion and
is fully informed. Accordingly, IT IS
ORDERED that Mr. Peterson's Motion to Vacate,
Set Aside or Correct Sentence by a Person in Federal Custody
Pursuant to 28 U.S.C. § 2255, filed January 11, 2017,
ECF No. 64, is DENIED.
District Court Executive is directed to:
File this Order, • Provide copies to ...