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United States of America v. David Ausburn

July 18, 2011

UNITED STATES OF AMERICA
v.
DAVID AUSBURN



The opinion of the court was delivered by: Arthur J. Schwab United States District Court Judge

Electronically Filed

Memorandum Opinion on Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255

I.Introduction

Currently pending before this Court is defendant/petitioner‟s (hereinafter "defendant‟) pro se Motion to Vacate, Set Aside or Correct a Sentence By a Person in Federal Custody pursuant to 28 U.S.C. § 2255 ((doc. no. 110), at Criminal No. 05-224). Defendant‟s Motion will be DENIED.

II.Procedural History

On August 1, 2005, defendant was charged with a one count information of inducing a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422(b). Doc. No. 33. The factual record in this case reveals that defendant was a police officer, later promoted to the Chief of Police, with the West Homestead Police Department. After meeting the 14-year-old victim while on duty and in his capacity as a police officer, he pursued and continued a sexual relationship with the victim while representing himself to her parents as an advocate and role model for their young daughter.

After having previously moved to combine the waiver of indictment, guilty plea hearing and sentencing into one proceeding (Doc. No. 37), on March 31, 2006, defendant, along with his able counsel, appeared before this Court, waived his right to indictment, pled guilty, and was sentenced to the one count information. Doc. Nos. 59-60.

After having thoroughly explained defendant‟s trial rights, and the consequences of waiving those rights and pleading guilty to the one count information, the Court sentenced defendant to 144 months imprisonment, with three (3) years supervised release to follow. Doc. No. 60. On April 7, 2006, defendant filed a notice of appeal arguing inter alia that the sentence was unreasonable.

On September 10, 2007, defendant‟s judgment of sentence was initially vacated and remanded by the United States Court of Appeals for the Third Circuit on September 10, 2007, in order for this Court to provide a more thorough explanation of the reasons for its sentence. Doc. No. 86. Upon remand, on October 9, 2008, this Court held a resentencing hearing, and again sentenced defendant to 144 months imprisonment, and three (3) years supervised release. Doc. No. 101. Pursuant to the dictates of the United States Court of Appeals for the Third Circuit, this Court expounded upon its reasons for its sentence. Defendant again filed his notice of appeal of the amended judgment on December 23, 2008, and on March 17, 2010, this Court received the mandate from the Court of Appeals hereby affirming the sentence of this Court as reasonable. Doc. No. 108.

On April 4, 2011, defendant filed the instant pro se motion to vacate, correct or set aside the judgment. Doc. No. 110. On April 11, 2011, this Court provided defendant a notice under United States v. Miller, 197 F.3d 644 (3d Cir. 1999), and on April 25, 2011, defendant filed his Notice of Statement of Intent. Doc. No. 116. Also, on May 24, 2011, the Government filed its response thereto. Doc. No. 117.

III. Standard of Review

Title 28, United States Code, Section 2255 provides, in relevant part:

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

Whether to conduct a hearing is within the sound discretion of the district court. See United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008) (citing United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). In exercising that discretion, ""the court must accept the truth of the movant‟s factual allegations unless they are clearly frivolous on the basis of the existing record.‟" Lilly, 536 F.3d at 195 (quoting Gov't of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989).Further, the court must order an evidentiary hearing to determine the facts ""unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.‟" Lilly, 536 F.3d at 195 (quoting Forte, 865 F.2d at 62); see also Rules Governing Section 2255 Proceedings, Rules 4 and 8. "The court should view the factual allegations in the light most favorable to the petitioner." United States v. Smith, 101 F.Supp.2d 332, 341 (W.D. Pa 2000) (citing Gov't of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574 (3d Cir. 1994)).

For petitioner to establish counsel was ineffective, he or she must show counsel‟s performance (i) was in fact deficient and (ii) that the deficient performance so prejudiced the defense as to raise doubt to the accuracy of the outcome of the trial [or the sentence]; i.e., petitioner must demonstrate a reasonable probability that, but for counsel‟s deficiency, the outcome of the trial [or sentence] would have been different. See Lewis v. Horn, 581 F.3d 92, 106 (2009) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Counsel's conduct presumptively ""falls within the wide range of reasonable professional assistance,‟" and the defendant ""must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.‟" Horn, 581 F.3d at 113 (quoting Strickland, 466 U.S. at 689). "On the other hand, the mere fact that counsel‟s challenged performance or tactic can be called strategic in the sense it was deliberate, does not answer the dispositive question of whether that decision or tactic fell within the wide range of reasonable professional assistance." Smith, 101 F. Supp. 2d at 341 (citing Davidson v. United States, 951 F.Supp. 555, 558 (W.D. Pa. 1996)). "Reasonable trial strategy must, by definition, be reasonable." Smith, 101 F. Supp. 2d at 341 (citation omitted).

Counsel‟s strategy must be judged by a standard of reasonableness based on the "prevailing norms of the legal profession." Smith, 101 F. Supp. 2d at 341 (citing Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996) (noting that Strickland standards for claims of ineffective assistance of counsel unchanged under Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214)). "Ineffective assistance of counsel will not be found simply because, with the assistance of hindsight, the reviewing court disagrees with counsel‟s strategy." Smith, 101 F. Supp. 2d at 342 (citing Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997).

In the context of a section 2255 petition for collateral relief, the Court of Appeals for the Third Circuit has offered the following guidance:

"First, we must determine whether the district court considered as true all of appellant's non-frivolous factual claims. This step requires that we review whether the district court properly found certain allegations frivolous. Second, we must determine whether, on the existing record, those claims that are non-frivolous conclusively fail to show ineffective assistance of counsel. To evaluate claims under this second step, we must turn to both prongs of the Strickland test. If a non-frivolous claim clearly fails to demonstrate either deficiency of counsel's performance or prejudice to the defendant, then the claim does not merit a hearing. If, on the other hand, a claim, when taken as true and evaluated in light of the existing record, states a colorable claim for relief under Strickland, then further factual development in the form of a hearing is required. That is, if a non-frivolous claim does not conclusively fail either prong of the Strickland test, then a hearing must be held. Thus, the district court must employ the Strickland analysis at least once, and may have to employ it twice--first, as a threshold analysis of all claims on a limited record, and then again only on colorable claims after full factual development of those claims."

United States v. Enrique Iglesias, No. 04-647, 2010 WL 5256810, at *7 (E.D. Pa. Dec. 22, 2010) (quoting United States v. Dawson, 857 F.2d 923, 927-28 (3d Cir. 1988)).

In the context of a guilty plea, these principles are equally applicable. As the Court of Appeals for the Third Circuit summarized:

In most cases, a defendant's claim of ineffective assistance of counsel involves counsel's performance during the course of a legal proceeding, either at trial or on appeal." Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). However, the principles apply equally to those defendants who have pled guilty. In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court applied the Strickland two-part test for determining ineffective assistance of counsel in a case where the defendant challenged a guilty plea. Although the standard for deficient performance remains unchanged, in a guilty plea case the standard for prejudice "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Id. at 59; see United States v. Nahodil, 36 F.3d 323, 326-327 (3d Cir. 1994). . . . In order for a defendant . . . who challenges his guilty plea to satisfy the prejudice requirement, he must demonstrate that there is a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. "As with all applications of the Strickland test, the question whether a given defendant has made the requisite showing will turn on the facts of a particular case." Flores-Ortega, 528 U.S. at 485.

Weeks v. Snyder, 219 F.3d 245, 257 (3d Cir. 2000) (emphasis added; certain parallel and other citations omitted).

In the guilty plea context, as in any other ineffective assistance of counsel context, ""[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.‟" Harrington v. Richter, __ U.S. __, 131 ...


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