The opinion of the court was delivered by: (Judge Rambo)
Before the court is Defendant Steven A. Voneida's motion filed pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence. The background of this case is set forth in the Government's response to Voneida's motion and will not be repeated here. It is sufficient to state that Voneida was convicted of making threatening communications in violation of 18 U.S.C. § 875(c). A direct appeal was taken and the judgment of this court was affirmed. (See United States v. Voneida, No. 08-4032 (3d Cir. 2009). Voneida filed a timely motion under 28 U.S.C. § 2255 alleging incompetency of both trial and appellate counsel. The motion has been fully briefed and is ripe for disposition.
To prevail on a claim of ineffective assistance of counsel, a petitioner must establish that (1) the performance of trial counsel fell below an objective standard of reasonableness, and (2) the performance of counsel unfairly prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 691 (1984). "Both Strickland prongs must be satisfied." George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001) (citing United States v. Nino, 878 F.2d 101, 104 (3d Cir. 1989).
The first Strickland prong requires a defendant to "establish . . . that counsel's performance was deficient." Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001.) Proving a deficiency in conduct "requires showing that counsel was not functioning as 'counsel' guaranteed by the Sixth Amendment." Id. (quoting Strickland, 466 U.S. at 687) (internal quotations omitted). "In assessing counsel's performance, 'every effort [must] 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. "That is to say, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996) (quoting Strickland, 466 U.S. at 689)). It is well settled that the benchmark for judging any claim of ineffectiveness of counsel is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.
The second prong of Strickland requires a defendant to show that counsel's performance unfairly prejudiced the defendant, meaning that counsel's errors were so serious as to deprive the defendant of a trial whose result is reliable. Id. It is not enough to show that the error had some conceivable effect on the outcome of the proceeding, for virtually every act or omission would meet such a test. Id. Rather, the defendant must show there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Id. at 694. A reasonable probability is sufficient to undermine confidence in the outcome of the trial. Id. Effectiveness of counsel applies to advice given by counsel during guilty plea discussions. Hill v. Lockhart, 474 U.S. 52, 58 (1985); United States v. Booth, 432 F.3d 542, 547 (3d cir. 2005). With the above precepts in mind, all allegations by Voneida will be addressed.
The following allegations and the court's responses are set forth seriatim.*fn1
A. Insufficient Evidence That Defendant Issued the Statements
Witnesses at trial, Dr. Holtzman and Officer Marlene Sherwin, testified that Voneida admitted to them that he posted the communications that are the subject of the violations. (Doc. 99, Transcript of Jury Trial Proceedings -- Day 1 of 2 ("Tr.-1") at pp. 130, 132, 133, 139.) Furthermore, the Third Circuit Court of Appeals, in its decision on direct appeal, held that there was sufficient evidence for the jury to convict. United States v. Voneida, No. 08-4032 (3d Cir. 2009).
B. Insufficient Evidence for Interstate Transmission
Voneida and his computer were located in the Middle District of Pennsylvania. Scott McFarland, a MySpace representative, testified at trial that postings made on MySpace websites are processed through a server in California. (Tr.-1 at p. 54.) There is nothing to refute this interstate nexus except Voneida's conclusion that "it is possible for an internet communication to be made to appear as though it is on a website or server when it is really somewhere else." (Defendant's Amended Motion pursuant to 28 U.S.C. § 2255, Doc. 114 at p. 14.)
C. Trial Court Lacked Jurisdiction
This court has jurisdiction. See subsection "B" above.
On this issue, Voneida offers that many others had access to his computer who could have authored the statements and others who did not perceive the statements to be threatening. In light of Voneida's statements to witnesses that he authored the statements, the fact that others could have done it is immaterial. While others may not have perceived the statements to be threatening, the existence or nonexistence of a threat is a question left to a jury. United States v. Malik, 16 F.3d 49, 51 (2d Cir. 1994).
E. The Court's Jury Instruction Contained An Unfair Assumption That Voneida Was The One Who Issued The Alleged Threat
In light of the fact that Voneida admitted to sending the statements at issue, there was no need for the jury to make a finding as to the identity of the perpetrator -- it was not an element of the crime on the facts of this case.
F. Interstate Transmission Jury Instruction Was Defective
Voneida claims that the jury instruction concerning interstate transmission was defective. This argument disputes the interstate element of the offense which has been addressed above (see Subsection B). Voneida does not present an alternative instruction to the ...