United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
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
 (“Motion to Vacate”). Also before the Court
are Movant's Objections to Magistrate Judge's Report
and Recommendation  (“Objections”).
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.” 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.
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.
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. (). Movant pleaded not guilty, and on December
6, 2010, proceeded to trial represented by Jerome Froelich
(“Mr. Froelich”). (). On January 30, 2013,
the Court imposed a sentence of 155 months imprisonment.
(). 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. (; ).
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
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. ( 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  (“Objections”). For the reasons
stated below, the Court adopts the Magistrate Judge's
Final R&R and overrules Movant's Objections.
28 U.S.C. § 2255 Motion
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).
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).
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.”
Id.at 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.
Magistrate Judge's ...