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United States v. Nestor

November 23, 2010

UNITED STATES OF AMERICA
v.
BRIAN LEE NESTOR



The opinion of the court was delivered by: Donetta W. Ambrose United States District Judge

OPINION AND ORDER

SYNOPSIS

In this criminal matter, Defendant pleaded guilty to one count of possession of child pornography, and was convicted by a jury of one count of coercion and enticement of a minor to engage in illegal sexual activity, in violation of 18 U.S.C. ' 2422(b) and ' 2252(a)(4)(B), respectively. At trial, the jury was presented with evidence such as Defendant's e-mail, internet, and phone communications with undercover law enforcement agents, in which Defendant discussed engaging in sexual activity with young children.*fn1 After pretrial proceedings, and due solely to scheduling concerns, the case was transferred to Judge Thomas Hardiman for purposes of trial. Throughout, Defendant was represented by the Federal Public Defender. The conviction was affirmed by the United States Court of Appeals for the Third Circuit, and the United States Supreme Court denied certiorari.

Before the Court is Defendant's Motion pursuant to 28 U.S.C. ' 2255 based primarily on ineffectiveness of trial and appellate counsel. Defendant raises a multitude of challenges to counsel's and the Court's performance, set forth in subparts to fifteen loosely grouped numbered "grounds." For the following reasons, Defendant's Motion will be denied, and no certificate of appealability shall issue.

OPINION

I. STANDARD OF REVIEW

A. Section 2255

A district court need not hold an evidentiary hearing on a Section 2255 motion if the motion, files, and records show conclusively that the defendant is not entitled to relief. United States v.Ritter, 93 Fed. Appx. 402 (3d Cir. 2004). Under these standards, a hearing is unnecessary in this case, and I will dispose of the Motion on the record.

Relief is available under Section 2255 only under exceptional circumstances, when the claimed errors of law are "a fundamental defect which inherently results in a complete miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed. 2d 417 (1962). "A person seeking to vacate his conviction bears the burden of proof upon each ground presented for relief." United States v. Keyes, No. 93-22-2, 1997 U.S. Dist. LEXIS 12109, at *2 (E. D. Pa. Aug. 11, 1997).

Finally, a pro se pleading is held to less stringent standards than pleadings drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 106, 97, 97 S.Ct. 285, 50 L.Ed. 2d 251 S.Ct. 285, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed. 2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed. 2d 652 (1972). Thus, a pro se habeas petition should be construed liberally. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998). I will consider Defendant's Motion according to these standards.

B. Ineffective Assistance of Counsel

Contrary to Defendant's assertion that a heightened standard applies to his case,*fn2 in the context of an ineffective assistance of counsel claim, a court should be "highly deferential" when evaluating an attorney's conduct; there is a "strong presumption" that the attorney's performance was reasonable. Strickland v. Washington, 466 U.S. 668, 689 (1984). "It is... only the rare claim of ineffectiveness of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel's performance." United States v. Gray, 878 F. 2d 702, 711 (3d Cir. 1989). Both trial and appellate counsel are governed by the same standards. See Smith v. Robbins, 528 U.S. 259, 285-86, 120 S.Ct. 746, 145 L.Ed. 2d 756 (2000). In order to fairly assess attorney performance, a court must make "every effort.to eliminate the distorting effects of hindsight.." Douglas v. Cathel, 456 F. 3d 403, 420 (3d Cir. 2006).

To demonstrate that counsel was ineffective, a defendant must show that counsel's performance fell below "the wide range of professionally competent assistance," and also that the deficient conduct prejudiced defendant. Strickland, 466 U.S. at 687. Counsel's conduct must be assessed according to the facts of the particular case, viewed as of the time of counsel's conduct. Id. at 689. In order to be effective, appellate counsel need not raise every possible claim on appeal. Sistrunk v. Vaughn, 96 F. 3d 666, 670 (3d Cir. 1996); Kane v. Kyler, 201 F. Supp. 2d 392, 399-400 (E.D. Pa. 2001). Moreover, as regards appellate counsel, the question is not whether Defendant would prevail on remand, but whether the Court of Appeals would likely have reversed and remanded had the issue been raised on appeal. United States v. Mannino, 212 F. 3d 835, 844-45 (3d Cir. 2000). In light of the wide array of circumstances faced by counsel, and the range of legitimate decisions regarding how best to represent a defendant, Strickland's inquiry turns on whether counsel's assistance was reasonable considering all the circumstances.*fn3 Wong v. Belmontes, 130 S.Ct. 383, 385, _ U.S. __, 175 L.Ed. 2d 328 (2009). At all points, "judicial scrutiny of counsel's performance must be highly deferential." Id.

Under the prejudice prong, the pertinent question is "whether there is a reasonable probability that, absent the errors," the result would have been different. Id. at 695; see also Gray, 878 F.2d at 709-13. Speculation as to "whether a different . . . strategy might have been more successful" is not enough. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 843-44, 122 L.Ed. 2d 180 (1993). The prejudice prong of Strickland rests on "whether counsel's deficient performance renders the result of the . . . proceeding fundamentally unfair," or strips the defendant of a "substantive or procedural right to which the law entitles him." Id. at 844. A court need not consider ...


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