United States District Court, S.D. Georgia, Augusta Division
K. EPPS UNITED STAINS MAGISTRATE JUDGE.
the Court is Petitioner's second motion to amend his
§ 2255 motion, and motion for an evidentiary hearing.
(Doc. nos. 22-1, 22-2.) The Court GRANTS IN
PART and DENIES IN PART
Petitioner's motion to amend (doc. no. 22-1), and
GRANTS Petitioner's motion for a hearing
(doc. no. 22-2). The evidentiary hearing will proceed as to
Petitioner's Grounds Six and Seven as supplemented.
Indictment and Agreement to Plead Guilty
7, 2014, the grand jury in the Southern District of Georgia
charged Petitioner with one count of attempted online
enticement of a minor, in violation of 18 U.S.C. §
2422(b). United States v. Intakanok, CR 114-060,
doc. no. 1 (S.D. Ga. May 7, 2014) (hereinafter “CR
114-060”). The indictment alleged Petitioner knowingly
attempted to persuade, induce, entice, and coerce an
individual he believed to be a thirteen-year-old girl to
engage in sexual activity for which he could have been
charged with the Georgia law crimes of child molestation and
statutory rape. (Id.) Petitioner retained attorneys
Adam M. Hames, Bruce S. Harvey, and Stuart M. Mones to
represent him. (Id., doc. nos. 6, 13, 17.)
Petitioner's motions to dismiss and to suppress were
denied, Petitioner pleaded guilty to attempted online
enticement of a minor on March 20, 2015. (Id., doc.
nos. 77, 78.) In exchange for his guilty plea, the government
and Petitioner agreed the appropriate sentencing range was
120 to 140 months imprisonment. (Id., doc. no. 78,
pp. 2-4.) The government also agreed to recommend a two-point
acceptance of responsibility reduction. (Id.) By
operation of the plea agreement, Petitioner admitted he
traveled from Atlanta to Augusta in order to knowingly
attempt to persuade, induce, entice, and coerce an individual
believed to be a thirteen year-old-girl to engage in sexual
activity for which he could have been charged with statutory
rape and child molestation under Georgia law. (Id.
at 2.) Petitioner waived the right to a direct appeal of his
conviction unless his sentence exceeded the statutory
maximum, the sentencing court upwardly departed from the
advisory Guidelines range, or the government appealed the
sentence. (Id. at 5.) Petitioner also waived the
preparation of a Presentence Investigation Report
(“PSI”). (Id. at 3.)
Change of Plea Hearing and Sentencing
proceeded to a change of plea hearing before Chief United
States District Judge J. Randal Hall on March 20, 2015. Chief
Judge Hall established Petitioner's competence to enter a
guilty plea. (Id., doc. no. 86.) Chief Judge Hall
explained to Petitioner he could be sentenced between ten
years and life imprisonment, and Petitioner affirmed he
understood. (Id. at 17.) Chief Judge Hall also
reviewed the rights Petitioner would forfeit by entering a
guilty plea, and Petitioner affirmed he understood.
(Id. at 9-11.)
Court heard the factual basis for Petitioner's guilty
plea from FBI Special Agent Justin Garrick. (Id. at
21.) SA Garrick testified Petitioner responded to internet
advertisements posted on Craigslist by Investigator Mark
Dobbins, seeking to meet with a fictitious father and
thirteen year-old daughter to engage in sexual activity.
(Id. at 22-23.) Petitioner traveled from Atlanta to
Augusta and sought one-on-one time with the fictitious
thirteen year-old girl. (Id. at 25-26.) When asked
whether he disagreed with the factual basis presented by SA
Garrick, Petitioner stated “No, sir.”
(Id. at 27.) Finding this sufficient for acceptance
of Petitioner's guilty plea, Chief Judge Hall allowed the
plea to be entered. (Id. at 28.)
proceeded to sentencing on March 24, 2015. Chief Judge Hall
reviewed the charges and noted the statutory penalty for a
violation of § 2422(b) was ten years to life
imprisonment, but accepted the plea agreement's
sentencing range of 120 to 140 months incarceration.
(Id., doc. no. 87, pp. 3-4.) Chief Judge Hall then
heard statements in mitigation from Petitioner's counsel,
Petitioner, and Petitioner's brother.
counsel emphasized Petitioner's strong family support,
including their presence in the courtroom, and focused on
presenting Petitioner as a hard-working and productive member
of the community. Counsel noted Petitioner financially
supported his mother, was committed to meditation and
Buddhism, and had a positive influence on his fellow inmates.
(Id. at 6.) Counsel described Petitioner's
addiction to MDMA, cocaine, and methamphetamine, and argued
this impaired his judgment and caused him to act impulsively.
(Id.) Counsel argued for a sentence of 120 months,
the statutory minimum, and requested treatment for
Petitioner's drug addiction. (Id. at 7, 21-22.)
brother testified Petitioner's addiction to MDMA,
methamphetamine, and cocaine affected Petitioner's
behavior; Petitioner did not eat, was more prone to
outbursts, and was “not himself.” (Id.
at 8-9.) Petitioner provided his own mitigating statements,
apologizing profusely for the impact of his conduct on his
family and friends. (Id. at 11.) Petitioner
testified to his drug use and its escalation, claiming it
severely impaired his perception and judgment. (Id.)
to these statements in mitigation, Chief Judge Hall
emphasized Petitioner's case was not “more about
drugs than about enticement of a minor . . . [and while] meth
may have been a contributing factor . . . the reason
we're here today is because [Petitioner] attempted to
entice a minor to have sex.” (Id. at 25.)
Chief Judge Hall imposed a sentence of imprisonment of 130
months, twenty-five years supervised release, and a $100
special assessment. (CR 114-060, doc. no. 80.) Judgment was
entered on March 25, 2015. (Id., doc. no. 81.)
Petitioner did not file a direct appeal.
§ 2255 Proceedings
signed his § 2255 motion on March 22, 2016, and the
Clerk's office filed the motion on March 28, 2016. (Doc.
no. 1, pp. 1, 13.) Petitioner raised seven grounds for
(1) Petitioner's confession was involuntary and was
coerced through deception.
(2) The government impermissibly charged both state and
federal offenses before the grand jury and fraudulently
obtained an indictment that divested the lower court of
jurisdiction to take a guilty plea or impose a sentence, and
counsel was ineffective for failing to object.
(3) Counsel was ineffective when they prepared for trial
because they refused to use a paper proffered by Petitioner
entitled “Enticers and Travelers, Law and Strategy in
‘Child Sex' Cases” from a “Winning
(4) Petitioner's plea was not knowingly and voluntarily
entered because the government committed fraud upon the Court
when it entered into a binding plea agreement with Petitioner
that included a stipulated sentencing range, when the U.S.
Bureau of Prisons could use the Adam Walsh Act to civilly
commit Petitioner for a term up to life, rendering the
District Court's sentence meaningless.
(5) Counsel was ineffective at sentencing by failing to
object to a sentence computation and judgment that included
state charges of statutory rape and child molestation,
ensuring Petitioner's sentence could be escalated to a
possible life sentence by the implementation of civil
commitment under the Adam Walsh Act.
(6) Counsel was ineffective for failing to file a notice of
appeal in a timely manner after Petitioner explicitly
instructed counsel to file an appeal at sentencing. Counsel
abandoned Petitioner and allowed the time for an appeal to
(7) Counsel was ineffective for failing to argue a circuit
split before the United States Supreme Court on the Adult
Respondent filed its response on June 13, 2016, Petitioner
filed his first motion to amend on July 5, 2016, seeking to
add support for Grounds Six and Seven. Petitioner sought to
supplement his Ground Seven claim by providing additional
argument counsel was ineffective because they knew
Petitioner's conduct did not meet the elements of 18
U.S.C. § 2422(b), and did not inform Petitioner nor
raise this claim at trial. (See doc. no. 5, pp.
7-8.) Petitioner also sought to add an entirely new claim in
(8) In light of the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), 18
U.S.C. § 2422(b) is ...