Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Kretzer

United States District Court, Third Circuit

January 13, 2014

UNITED STATES OF AMERICA
v.
JEFFREY KRETZER, Defendant/petitioner. Civil Action No. 13-602

MEMORANDUM OPINION

ALAN N. BLOCH, District Judge.

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.

I. Background

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 following manner:

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.

II. Discussion

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).[1] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.