Kevin Brian Ledgard v. United States of America

Filing 19

ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. 2255 1 by Judge Dean D. Pregerson. (Made JS-6. Case Terminated.).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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KEVIN BRIAN LEDGARD,

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Plaintiff,

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v.
UNITED STATES OF AMERICA,

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Defendant.

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) Case No. 2-15-cv-08080-DDP
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(CR 08-00982 DDP)
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) ORDER DENYING MOTION FOR
) RELIEF UNDER 28 U.S.C. § 2255
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Presently before the court is Defendant/Petitioner Kevin Brian Ledgard

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(“Petitioner”)’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.

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§ 2255. Having considered the parties’ submissions, the court DENIES the Motion and

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adopts the following Order.

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I. BACKGROUND

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A. Underlying Conduct

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The court has set forth more fully the underlying offense conduct in its written

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“Findings of Fact and Conclusion of Law Following Bench Trial.” (See Govt’ Opp’n, Ex.

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A.) In brief, this conviction arose out of Ledgard’s actions following the end of his

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romantic relationship with a former coworker, F.G. From the day the two broke up,

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Ledgard engaged in a series of egregious acts aimed at F.G. Over the course of

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approximately a month, Ledgard sent harassing communications to F.G and her family;

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hacked into F.G.’s bank, email, and Amazon accounts; made unauthorized purchases and

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sent checks in F.G.’s name; and distributed sexually explicit photos of F.G. to her friends,

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family, coworkers, the admissions director for a university to which she applied, and a

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man she had begun dating.

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B. Legal Proceedings

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On September 7, 2010, a federal grand jury returned an 11-count Second

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Superseding Indictment charging Ledgard with multiple counts of unauthorized access

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to computers, bank fraud, aggravated identity theft, and felony enhancements. The case

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proceeded to bench trial on July 17, 2012. During the trial, the government called

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fourteen witnesses, including F.G. Ledgard did not testify or call any witnesses. The

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record indicates that defense counsel primarily focused on arguing that the felony

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enhancements were unjustified as a matter of law and could not be sustained based on

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the evidence. Specifically, Ledgard‘s counsel filed a motion to dismiss all felony charges

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for failure of proof, which the parties fully briefed. (Gov’t Opp’n, Exs. D, E, F.) On

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August 31, 2012, the court held a hearing on Ledgard’s motion, which also served as

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closing arguments for the bench trial. (Id., Ex. G.) After extensive argument, the Court

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granted the motion as to the bank fraud counts—thus acquitting Ledgard on these

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counts—but denied the motion as to the remaining felony counts. (Id.) Following a bench

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trial before this Court, Ledgard was convicted of three counts of unauthorized access to

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the computer of a financial institution in violation of 18 U.S.C. §§ 1030(a)(2)(A),

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(c)(2)(B)(ii) (Counts One through Three); two counts of unauthorized access to a

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protected computer in violation of 18 U.S.C. §§ 1030(a)(2)(C), (c)(2)(B)(ii) (Counts Four
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and Five); and three counts of aggravated identity theft in violation of 18 U.S.C. §

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1028A(a)(1) (Counts Nine through Eleven). See Legard v. United States, 2:08-cr-00982-DDP

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(C.D. Cal. Sept. 12, 2012) (Dkt. 198). On December 14, the court sentenced Ledgard to 25

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months imprisonment and three years supervised release.

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Ledgard appealed and the Ninth Circuit affirmed the conviction and sentence on

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August 7, 2017. United States v. Ledgard, 583 F. App’x 654 (9th Cir. 2014). The court of

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appeals concluded that the evidence was sufficient to meet the elements of the convicted

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counts. On October 14, 2015, Ledgard timely filed the instant motion to vacate his

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sentence pursuant to 28 U.S.C. § 2255, asserting ineffective assistance of counsel by trial

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counsel and constitutional due process violations.

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II. LEGAL STANDARD

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A defendant may be entitled to relief under Section 2255 if the sentence imposed:

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(1) violated the Constitution or the laws of the United States; (2) was given by a court

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without jurisdiction to do so; (3) exceeded the maximum authorized by law; or (4) is

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otherwise subject to collateral attack. 28 U.S.C. § 2255(a). If “the motion and the files and

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the records of the case conclusively show that the prisoner is entitled to no relief,” a

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resolution may be reached without an evidentiary hearing. 28 U.S.C. § 2255(b); United

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States v. Mejia-Mesa, 153 F.3d 925, 931 (9th Cir. 1998) (district court may deny a Section

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2255 motion where movant’s allegations “are so palpably incredible or patently frivolous

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as to warrant summary dismissal.” (quotation and citation omitted)). When a petitioner

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alleges ineffective assistance of counsel, an evidentiary hearing is necessary only if,

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assuming the petitioner’s factual allegations as true, the ineffective assistance of counsel

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claim could prevail. U.S. v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994).

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III. DISCUSSION

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A.

Ineffective Assistance of Counsel

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Ledgard first ground for seeking habeas relief is that his trial counsel failed to

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provide effective assistance of counsel in violation of his Sixth Amendment rights. Under

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the Sixth Amendment, all criminal defendants enjoy the right to effective assistance of
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counsel. Strickland v. Washington, 466 U.S. 668, 686-700 (1984). In Strickland, the Supreme

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Court held that in order to show ineffective assistance of counsel, a defendant must

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demonstrate (1) that counsel’s performance was deficient and fell below an objective

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standard of reasonableness and (2) the defendant was prejudiced as a result and

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deprived of a fair trial. Id. at 687. In assessing counsel’s performance, courts must

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presume that counsel’s conduct and trial strategy “falls within the wide range of

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reasonable professional assistance . . . .” Strickland, 466 U.S. at 689.

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In support of his ineffective assistance of counsel (“IAC”) claim, Ledgard

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identifies a number of occasions where his counsel allegedly rendered deficient

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performance. Although each of these instances will be discussed in greater detail below,

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the court notes that an overall issue with Ledgard’s IAC claim is its lack of specificity. As

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the Ninth Circuit has explained, “[a]lthough section 2255 imposes a fairly lenient burden

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on the petitioner, the petitioner is nonetheless ‘required to allege specific facts which, if

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true, would entitle him to relief.’” United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir.

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2003) (quoting United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996)). Here, the lack

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of clarity in Ledgard’s petition as to the precise facts that substantiate his IAC claim—for

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instance, the specific deficiencies of counsel’s conduct, what might have been done

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differently, why that might have resulted in a different outcome—counsel against

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granting Ledgard’s motion. See Shah v. U.S., 878 F.2d 1156, 1161 (9th Cir. 1989) (noting

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that vague and conclusory allegations of ineffective assistance of counsel in § 2255

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motion did not provide a basis for the district court to hold an evidentiary hearing); see

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also Palomino v. Cambra, 225 F.3d 663 (9th Cir. 2000) (affirming district court’s dismissal of

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§ 2255 petition on grounds that IAC claims “were too vague to demonstrate deficient

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performance or prejudice”).

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As to the specific claims, Ledgard first asserts that his counsel “refused to heed

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[his] repeated, detailed wishes that he mount an adequate defense” and that counsel’s

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efforts reflected “a complete absence of trial preparation.” (Mot. 5.) This conclusory claim

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does not meet either prong of Strickland. There is no explanation of what was objectively
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unreasonable about counsel’s preparation or the defense that was presented nor is there

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any explanation of what prejudice Ledgard suffered.

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Ledgard also claims that, three days before trial, he received a phone call from his

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attorney indicating that counsel “unilaterally decided to pursue a different course in his

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defense” and abandon the strategy that the two had previously developed. (Reply 2.)

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While it is possible that defense counsel’s strategy at trial did not reflect Ledgard’s

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preferred approach, that is not the standard under which Strickland claims are evaluated.

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Instead, it is well-settled that “[t]actical decisions that are not objectively unreasonable do

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not constitute ineffective assistance of counsel.” Hensly v. Crist, 67 F.3d 181, 185 (9th Cir.

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1995). Ledgard does not specify what strategy he and his counsel had previously agreed

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upon nor does he explain why this undisclosed strategy would have been more effective

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than the tactical approach adopted by counsel. From the record, it appears that counsel’s

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primary strategy was to contest the legal viability of certain felony counts. In light of the

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extensive evidence presented by the government, including detailed email records and

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testimony from fourteen witnesses, it was not objectively unreasonable for defense

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counsel to focus on challenging the legal predicates for certain charges rather than, say,

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denying the narrative account presented by the government.

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Ledgard next claims that his counsel “fail[ed] to challenge any witness for the

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government, including several who committed perjury.” (Mot. 5.) He also claims that his

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counsel failed to make evidentiary objections about how evidence was handled. As with

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the prior contentions, these assertions are too vague to sustain an IAC claim. Ledgard

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does not specify which witnesses should have been challenged, what specific perjured

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statements were made, or what evidence was “in the possession of both the

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[government] and the defense” that should have been used to impeach testimony. Nor

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does Ledgard explain what specific evidentiary objections should have been made. In his

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reply, Ledgard explains that he “prepar[ed] a 15+ page memo outlining . . . specific

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credibility issues that would render the testimony of the complaining witness, along with

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most of the few witnesses lining up to support a self-serving report of the events in
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question, very clearly impeachable.” (Reply 3.) Even here, however, Ledgard fails to

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explain what specific basis for impeachment was available that his counsel failed to raise

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or why, assuming arguendo there was a ground for impeachment, why counsel’s choice

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was objectively unreasonable. In his reply, the one specific tactic Ledgard question is his

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counsel’s decision not to cross-examine an investigator for the government about

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whether Ledgard’s computer was kept in a secure location and about an alleged incident

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of earlier misconduct on the part of the investigator. Thus argument, however, was

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raised for the first time on reply; therefore, it is not properly before the court. See Miller v.

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Pacholke, No. C08-5138 BHS/JKA, 2008 WL 2815542, at *1 (W.D. Wash. July 17, 2008)

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(declining to consider Petitioner’s claim, raised for the first time on reply, that the failure

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to cross-examine a particular witness constituted IAC) (citing U.S. v. 191.07 Acres of Land,

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482 F.3d 1132, 1137 n.2 (9th Cir.2007)). Moreover, even if Ledgard could rely on this

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failure to satisfy the deficient performance prong of Strickland, he presents no argument

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about why this line of questioning constituted prejudice, given that a number of other

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witnesses corroborate the correspondence evidence that was retrieved from Ledgard’s

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computer.

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Next, Ledgard challenges his counsel’s “filing of deficient motions that the

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Defendant was unable to review beforehand for accuracy.” Although Ledgard does not

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specify which motions were deficient, he presumably is referring to the motion to

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dismiss. As noted above, this motion was detailed, well argued, and actually resulted in

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the court dismissing certain counts from the indictment. Ledgard does not indicate what

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inaccuracies were contained in the brief or how additional review on his part would have

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improved his prospects. Indeed, substantially similar arguments were also presented by

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appellate counsel, whose performance Ledgard does not challenge and who presumably

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would have had the benefit of any additional input Ledgard sought to provide.

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In a similar vein, Ledgard also raises his counsel’s failure to submit proposed

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findings of fact and conclusions of law to the court. (Mot. 5.) Although Ledgard state this

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claim as a due process challenge, it is more properly understood as another instance of
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his IAC claim and thus the court considers it here. Turning to the merits of the claim, the

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transcript from the third day of trial establishes that Ledgard’s counsel represented to the

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court that he prepared this document but would prefer to orally present the differences

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between his and the government’s view of the findings of fact and conclusions of law.

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Ledgard provides no significant reason to doubt this representation. Moreover, counsel

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also stated that the substance of his draft findings of fact and conclusions of law were

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primarily set forth in the motion to dismiss. Thus, Ledgard has not presented any basis

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for concluding that this tactical decision was objectively unreasonable. To the contrary,

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counsel’s decision to orally present the divergence between the two parties’ views of the

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findings of fact and conclusions resulted in securing a dismissal of multiple counts of the

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indictment. Moreover, as with his previous challenges, Ledgard has not shown what

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prejudice resulted, given that the motion to dismiss covered much of what might have

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been included in a filed version of the findings of fact and conclusions of law.

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Finally, for the first time in his reply brief, Ledgard raises the possibility that his

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counsel may have failed to convey plea offers to him. (Reply 5.) Ledgard does not state

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that there was an actual plea offer he did not know about but instead claims that, because

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he was unable to access his email for a period of time, “it’s impossible to tell whether

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[counsel] properly communicated any of the plea offers.” (Id.) As with the failure to

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cross-examine the investigator claim, this argument is not properly before the court

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because it was raised for the time on reply. See Miller, 2008 WL 2815542, at *1. Moreover,

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even if the court were to consider the claim, it would deny it as conjectural. There is no

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concrete allegation of a plea offer that defendant did not know about nor any evidence to

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suggest that he was not aware of all relevant plea offers. Furthermore, Ledgard does not

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claim, nor has he provided any evidence, that there was a reasonable possibility he

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would accept any hypothetical plea offers he may have missed. See Jones v. Woods, 114

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F.3d 1002, 1012 (9th Cir. 1997) (to show prejudice where counsel fails to inform petitioner

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about a plea offer, petitioner must prove there was a reasonable probability he would

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have accepted the offer). To the contrary, during the criminal proceeding, the court
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actually had to grant a motion to allow Ledgard to withdraw one guilty plea. See Ledgard

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v. United States, 2:08-cr-00982-DDP (C.D. Cal. Aug. 02, 2010) (Dkt. 91).

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B. Due Process Claims

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In addition to his IAC claim, Ledgard seeks relief on two related due process

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grounds. First, Ledgard claims that “government[] intentionally conflated arguments at

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trial (many of which were based exclusively on expansive interpretations of statute and

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false histrionics in Court related to emotionally-charged materials; and completely

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devoid of precedent in any court of law) . . . .” (Mot. 5.) Second, Ledgard claims that “the

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government also failed to prove beyond a reasonable doubt each and every one of the

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required elements of the charged statutes in the indictment.”(Id.) Although it is not clear

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from the Motion what arguments Ledgard believes the government “intentionally

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conflated,” the thrust of these claims seems to be Ledgard’s repeated contention that the

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acts he was accused of engaging in do not actually constitute violations of the relevant

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laws that provided the basis for his conviction. Indeed, in his motion, Ledgard expressly

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reiterates that these arguments were “set forth in the Defendant’s appellate brief before

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the U.S. Court of Appeal for the Ninth Circuit.” (Mot. 5.) The Ninth Circuit has already

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ruled on these challenges and found that Ledgard’s conduct did violate the laws at issue

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and that his convictions were not premised on impermissibly “expansive interpretations

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of statute[s].” (Mot. 5;) see Ledgard, 583 F. App’x at 654-55. Accordingly, these contentions

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cannot provide a valid ground for granting Ledgard’s habeas motion. United States v.

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Currie, 589 F.2d 993, 995 (9th Cir. 1979) (“Issues disposed of on a previous direct appeal

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are not reviewable in a subsequent § 2255 proceeding.”)

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IV. CONCLUSION

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For the reasons stated above, the court DENIES Petitioner’s Motion to Vacate

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Sentence and DISMISSES the Petition. Further, the court DENIES Petitioner a certificate

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of appealability, as Petitioner has not made a substantial showing that he has been

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denied a constitutional right. See 28 U.S.C. § 2253(c) (providing that a certificate shall

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issue “only if the applicant has made a substantial showing of a denial of a constitutional

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right”).

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IT IS SO ORDERED.

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Dated: May 16, 2017
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DEAN D. PREGERSON
UNITED STATES DISTRICT JUDGE

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