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Intakanok v. United States

United States District Court, S.D. Georgia, Augusta Division

July 27, 2017




         Before 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.

         I. BACKGROUND

         A. Indictment and Agreement to Plead Guilty

         On May 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.)

         After 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.)

         B. Change of Plea Hearing and Sentencing

         Petitioner 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.)

         The 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.)

         Petitioner 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.

         Petitioner's 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.)

         Petitioner's 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.)

         Responding 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.

         C. § 2255 Proceedings

         Petitioner 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 relief:

(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 Strategies Seminar.”
(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 expire.
(7) Counsel was ineffective for failing to argue a circuit split before the United States Supreme Court on the Adult Intermediary Function.

         After 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 Ground Eight:

(8) In light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), 18 U.S.C. ยง 2422(b) is ...

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