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Asher v. United States

United States District Court, N.D. Georgia, Atlanta Division

June 14, 2018




         This matter is before the Court on Magistrate Judge Alan J. Baverman's Final Report and Recommendation [159.1] (“Final R&R”), recommending denial of Michael Asher's (“Movant”) Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 [152] (“Motion to Vacate”). Also before the Court are Movant's Objections to Magistrate Judge's Report and Recommendation [169] (“Objections”).

         I. BACKGROUND

         On December 1, 2008, a Special Agent of the Federal Bureau of Investigation (“FBI”) used a file sharing program to download more than one hundred images of child pornography from the user “Mangaman1999.”[1] United States v. Asher, 564 Fed.Appx. 963, 966 (11th Cir. May 6, 2014) (affirming conviction). The internet protocol (“IP”) address assigned to “Mangaman1999” was associated with Movant's home address in Conyers, Georgia. Id. At the time of the download, Movant was logged into the virtual private network (“VPN”) of his employer, AT&T, with his username, personal identification number, and employer-issued key fob. Id.

         Upon searching Movant's home, FBI agents located and seized eight computers. Id. FBI examiners uncovered more than 1500 images and 80 videos of child pornography on two computers, which were registered to Movant and found in his home office. Id. The examiners discovered that Movant sent a work-related email from one of these computers within a half hour of child pornography being downloaded. Id. FBI examiners also discovered a number of file names identical to those located on the first two computers on a third computer, but not the files themselves. Id. The examiners found “Eraser” software designed to delete information from a computer's hard drive. Id. The examiners did not uncover child pornography on the computers found elsewhere in Movant's home, including his 17-year-old stepson's computer. Id.

         On August 24, 2010, a grand jury for the Northern District of Georgia indicted Movant on one count of child pornography distribution occurring on or about December 1, 2008; one count of child pornography distribution between approximately September 21 through October 13, 2007; one count of child pornography receipt by at least February 19, 2009; and one count of child pornography possession by at least February 19, 2009. ([53]). Movant pleaded not guilty, and on December 6, 2010, proceeded to trial represented by Jerome Froelich (“Mr. Froelich”). ([81]). On January 30, 2013, the Court imposed a sentence of 155 months imprisonment. ([135]). On October 27, 2011, Movant filed a motion for new trial, represented by Mildred Dunn, and on October 17, 2012, the Court denied the motion. ([119]; [129]).

         Movant appealed to the Eleventh Circuit Court of Appeals, and, on May 6, 2014, the Eleventh Circuit affirmed the judgment against him. Asher, 564 Fed.Appx. at 973. In affirming Movant's conviction, the Eleventh Circuit stated:

The government's evidence showed that Agent Donahue downloaded 174 files of child pornography from the IP address assigned to [Movant's] residence; that three computers registered to [Movant] and located in his home office, including his password-protected work laptop, contained files names or actual files corresponding to those downloaded by Agent Donahue; that [Movant] was signed into his employer's VPN network at the time of the undercover GigaTribe session; that [Movant] sent a work-related email from one of those three computers within a half hour of child pornography being downloaded onto it; and that no files or names of files relating to child pornography were found on his stepson's computer. While [Movant] presented his own expert testimony that someone using his stepson's computer could wirelessly access and download files onto QAT03 and QAT04, that testimony does not render the government's evidence of guilt any less substantial, particularly in light of the incriminating file names found on his password-protected work laptop.

Id. at 970. On August 5, 2015, Movant, proceeding pro se, filed his Motion to Vacate asserting two grounds for collateral relief: (1) ineffective assistance of pre-trial counsel for failure to negotiate a plea deal and fully inform Movant of the benefit of pleading guilty and (2) ineffective assistance of trial counsel. ([152] at 5-6). On April 15, 2016, the Magistrate Judge issued his Final R&R recommending the Court deny Movant's Motion to Vacate. On June 30, 2016, Movant filed his Reply to Magistrate's Report [169] (“Objections”). For the reasons stated below, the Court adopts the Magistrate Judge's Final R&R and overrules Movant's Objections.


         A. 28 U.S.C. § 2255 Motion

         Under 28 U.S.C. § 2255, a federal prisoner may file a motion to vacate his sentence “upon the ground[s] that the sentence was imposed in violation of the Constitution or laws of the United States, [] that the court was without jurisdiction to impose such sentence, [] that the sentence was in excess of the maximum authorized by law, or [that the sentence] is otherwise subject to collateral attack.” See 28 U.S.C. § 2255(a). Collateral relief, however, is limited. It is well-settled that “to obtain collateral relief, a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). The movant bears the burden of persuasion, which “is supposed to be a heavy one.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).

         Matters decided on direct appeal cannot be re-litigated under § 2255, and matters that could have been raised on direct appeal, but were not, are generally foreclosed. Hidalgo v. United States, 138 Fed.Appx. 290, 291 (11th Cir. June 29, 2005) (citing Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004). Thus, § 2255 relief “is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” Lynn, 365 F.3d at 1232 (quoting Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988) (internal quotation marks omitted). A constitutional claim of ineffective assistance of counsel generally is properly raised on collateral review in order to allow for adequate development and presentation of relevant facts. Massaro v. United States, 538 U.S. 500, 505-09 (2003). “An evidentiary hearing is not required when ‘the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'” Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (quoting § 2255).

         Claims for ineffective assistance of counsel-like those asserted by Movant here-are evaluated under the standards set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The first part of the inquiry requires the court to determine whether counsel's performance fell “below an objective standard of reasonableness.” 688. The court must then assess whether counsel's performance prejudiced the defendant. Id. In other words, the court must ask whether there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.; see also Lynn v. United States, 365 F.3d 1225, 1235 n.21 (11th Cir. 2004) (noting that “cause and actual prejudice standard” for § 2255 motion “mirrors the standard used to evaluate collateral attacks on state convictions”); Reece v. United States, 119 F.3d 1462, 1467 (11th Cir. 1997) (“‘[A]ctual prejudice' is ‘not merely that the errors at [the defendant's] trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” (quoting Frady, 456 U.S. at 170)). “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686.

         B. Magistrate Judge's ...

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