The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Patrick Hausler's Petition to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Section 2255"). For the reasons stated herein, the Petition is denied without an evidentiary hearing.
On October 25, 2006, Petitioner Patrick Hausler (the "Petitioner") was indicted for knowingly publishing, advertising and exchanging visual depictions of minors engaging in sexually explicit conduct in violation of 18 U.S.C. § 2251(d)(1)(A). On October 31, 2008, Petitioner pled guilty.
At the time of Petitioner's guilty plea, he was released on bond. The conditions of Petitioner's bond included, among other things, appearing at all Court proceedings, wearing an ankle monitoring bracelet at all times, and refraining from accessing the Internet. After his plea, Petitioner informed the Court that while on bond he would reside at the home of a third party, Pastor Ken Latimore ("Latimore"), who also volunteered to be his custodian.
Four days after Petitioner pled guilty, undercover Special Agent Jim Mooney began an investigation of a file server that was distributing child pornography from an Internet connection in Illinois. This investigation ultimately was traced to the Latimore home where officers executed a search warrant and discovered Petitioner's "massive computer" with a live Internet connection. See Tr. of Proceedings June 2009 at 9. Due to the encryption codes on the computer, officers were unable to discover whether the computer had pornographic images.
Days after the search warrant was executed, Petitioner cut his electronic monitoring bracelet and fled. Agents spent over one week trying to locate Petitioner, who fled to California to visit his ex-wife. Later, Petitioner returned to Illinois voluntarily, (allegedly because his lawyer advised him to), where he was arrested.
On June 11, 2009, this Court held Petitioner's first sentencing hearing. During the hearing, the Government presented evidence regarding Petitioner's post-bond conduct and argued that this evidence should prohibit Petitioner from receiving acceptance of responsibility credit under the Federal Sentencing Guidelines. Petitioner's counsel objected, arguing the Government could not prove that Petitioner was distributing child pornography after his guilty plea. Petitioner's counsel then requested the Court continue the sentencing hearing, and requested that the Government prove up their allegations to grant Petitioner an opportunity to cross-examine Special Agent Mooney. The Court granted counsel's request and continued the hearing.
On October 27, 2009, this Court held Petitioner's second sentencing hearing. At the hearing, the Government called Special Agent Mooney as its first witness. During direct examination, Agent Mooney testified how he traced the child pornographic file server to Petitioner on or about November 4, 2008, and described how such tracing is possible. Petitioner's counsel declined to cross-examine Agent Mooney.
The Government's second witness was Pastor Ken Latimore. On direct examination, Latimore testified that he agreed to be Petitioner's custodian while he was out on bond, and that Petitioner resided in the basement of his home from early 2007 through November 2008. Latimore also testified that while Petitioner lived in his home, he had removed all Internet connections to abide by the conditions of Petitioner's bond. Petitioner's attorney cross-examined Latimore, eliciting testimony that Petitioner participated in group meetings for men dealing with pornography issues and that when Petitioner fled he left a suicide note.
After the conclusion of Pastor Latimore's testimony, the Government argued an upward adjustment was warranted due to Petitioner's escape from custody. Petitioner's counsel objected, contending that Petitioner was not attempting to evade justice, but instead was trying to kill himself. This Court agreed with Petitioner, and declined to grant the Government's requested upward enhancement.
The Court then considered whether Petitioner should be granted adjustment credit based on his acceptance of responsibility. The Government argued that Petitioner should not be granted such credit because evidence indicated that he continued to commit the same offense after he pled guilty. Petitioner's counsel did not contest this.
At the conclusion of the sentencing hearing, the Court sentenced Petitioner to 25 years imprisonment followed by a lifetime of supervised release.
Petitioner appealed his sentence to the Seventh Circuit. However, after failing to find a good-faith basis for an appeal, Petitioner's counsel filed a motion under Anders v. California, 386 U.S. 738 (1967) seeking permission to withdraw. The Seventh Circuit granted the motion, and dismissed the appeal.
Petitioner chose not to file a writ of certiorari to the United States Supreme Court and instead let the appropriate amount of time lapse prior to filing this timely 28 U.S.C. § 2255 habeas petition.
Under Section 2255 a prisoner may petition the court which imposed his sentence to vacate, set aside, or correct the sentence on the basis that the sentence imposed is in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose the sentence, or that the sentence was in excess of the maximum authorized by law. See Oliver v. United States, 961 F.2d 1339, 1341 (7th Cir. 1992). To receive relief under Section 2255, a prisoner must show a "fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979). Alternatively, if a prisoner can show the trial court made "an omission inconsistent with the rudimentary demands of fair procedure," relief can also be provided. Hill v. United States, 368 U.S. 424, 428 (1962).
Petitioner argues that his sentence should be modified or vacated because he received ineffective assistance of counsel. Specifically, he argues his counsel was ineffective because his lawyer (1) chose not to file a motion to suppress Petitioner's confession in 2006; (2) failed to examine Petitioner's computer equipment following the 2008 search and failed to properly cross- examine Agent Mooney; (3) failed to object to the testimony of Pastor Latimore and assert clergy-penitent privilege; (4) failed to provide this Court all character letters at sentencing and failed to call a character witness; (5) failed to argue that it was unconstitutional for Petitioner to be charged under 18 U.S.C. § ...