ALAN N. BLOCH, District
Petitioner Jeffrey Kretzer, on April 26, 2013, filed a Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal
Custody (Doc. No. 51) and brief and affidavit in support thereof (Doc. Nos. 52
and 51-2). Upon consideration of this motion, and upon further consideration of
the Government's response thereto (Doc. No. 54), filed on May 14, 2013, the
Court denies Petitioner's motion for the reasons set forth below.
On October 14, 2004, an indictment was returned by the Grand Jury
charging Petitioner with transportation of material depicting the sexual
exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(1), receipt of
material depicting the sexual exploitation of a minor, in violation of 18 U.S.C.
§ 2252(a)(2), and possession of material depicting the sexual exploitation of a
minor, in violation of 18 U.S.C. § 2252(a)(4)(B). On January 13, 2005,
Petitioner pled guilty to Count One, and on April 21, 2005, the Court sentenced
him to a term of imprisonment of 78 months to be followed by a term of
supervised release of life.
Petitioner was released to supervision on July 23, 2010. On February
3, 2011, his probation officer filed a Request for Modifying the Conditions or
Term of Supervision with Petitioner's consent, and the Court granted the
modification on February 7, 2011. The modifications were to bring the terms of
Petitioner's release in compliance with the United States Probation Office's
Computer Restriction and Monitoring Program and contained various provisions
regarding the use and monitoring of any computer possessed or used by
Petitioner. The modifications also included provisions regarding mental health
and/or sex offender treatment.
On January 4, 2012, the probation officer sent the Court a letter
stating that Petitioner had been in contact with a convicted felon in violation
of the terms of his supervised release. The letter further stated, though, that
Petitioner had made a great deal of progress on supervision, and that
Petitioner, when confronted with the letter to the felon, had cooperated with
the probation officer. The probation officer did not seek any further action,
and none was taken at that time.
However, on October 26, 2012, the probation officer provided the Court
with a status report indicating that Petitioner's progress in supervision had
declined and describing numerous potential violations. The probation officer
asked the Court to advise how to proceed, and the Court advised her to file a
violation petition. Accordingly, on November 2, 2012, Petitioner's probation
officer filed a Petition for Show Cause Hearing for Offender under Supervision
alleging that Petitioner had violated the terms of his supervised release and
requesting that the Court schedule a show cause hearing. Specifically, she
advised that Petitioner violated the conditions of his supervised release in the
First, that he violated the condition that provides that he shall
participate in a mental health treatment program and/or sex offender treatment
program as approved by the probation officer, as a result of being
unsuccessfully discharged from sex offender treatment on September 17, 2012. The
probation officer alleged that Petitioner had failed to follow through with his
recommended treatment plan and engaged in deception. She further stated that he
failed a polygraph examination on October I, 2012, and lied about his attempts
to use counter measures to pass the polygraph.
Second, she alleged that Petitioner violated the condition that
provides that he shall answer truthfully all inquiries by the probation officer
and follow the instructions of the probation officer, by denying that he had
taken counter measures relating to his polygraph examination and by claiming
that a cold had caused the failed polygraph.
Third, she alleged that he violated the condition that provides that
he shall abide by the provisions of the Computer Restriction and Monitoring
Program approved by the Court, by using unmonitored computers, failing to
provide all user names and passwords to the Probation Office, and removing
monitoring software without the permission of the probation officer.
On November 21, 2012, the Court held a show cause hearing on the
November 2 Petition. Petitioner denied the allegations and the Court received
evidence from both the Government and Petitioner, including Petitioner's own
testimony. Despite Petitioner's claims that he had only conducted general
research on polygraphs prior to his test on October I, 2012, the Court found his
claims to lack credibility and found that Petitioner violated the conditions of
his supervised release by lying about his attempts to use counter measures to
pass his polygraph examination. However, this was not the only way in which the
Court found that he had violated his conditions of supervision. The Court also
found that he violated those conditions by failing to follow through with his
recommended treatment plan, by failing the polygraph examination, and by using
unmonitored computers, failing to provide all user names and passwords to the
probation officer, and removing monitoring software without the permission of
the probation officer. Based on these findings, the Court revoked Petitioner's
supervised release and sentenced him to a term of imprisonment of 9 months,
which was the top of the advisory guideline sentencing range pursuant to USSG §
7B1.4(a), to be followed by a term of supervised release of life.
Petitioner did not appeal the Court's findings or the sentence
imposed. Instead, on April 26, 2013, he filed the present motion.
As noted, Petitioner brings his motion pursuant to Section 2255. This
statute permits a "prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the United
States... (to] move the court which imposed the sentence to vacate, set aside or
correct the sentence." 28 U.S.C. § 2255(a). An evidentiary hearing is not
required on a Section 2255 motion if "the motion and the files and records of
the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C.
§ 2255(b). Petitioner's motion
raises two primary arguments. First, he argues that the term of imprisonment
imposed violated his right to be free from cruel or unusual punishment pursuant
to the ...