La v. USA

Filing 2

Order denying 1 Motion to Vacate. Signed by Judge Edward J. Davila on 10/10/2018. The Clerk shall close the file. (ejdlc3S, COURT STAFF) (Filed on 10/10/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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TONY LA,

Case No. 5:15-cv-00824-EJD
Plaintiff,
ORDER DENYING DEFENDANT’S
§2255 MOTION

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United States District Court
Northern District of California

v.
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Re: Dkt. Nos. 26, 29, 33

USA,
Defendant.

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I.

INTRODUCTION

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Pursuant to 28 U.S.C. § 2255, Defendant Tony La (“Defendant”) moves to vacate, set aside or

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correct his sentence. Defendant contends that his counsel rendered ineffective assistance. For the

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reasons set forth below, Defendant’s motion is denied.

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II.

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On August 22, 2013, Defendant pled guilty pursuant to a written plea agreement to one count

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of Distribution of Visual Depictions of Minors Engaged in Sexually Explicit Conduct in violation

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of 18 U.S.C. § 2252(a)(2). In the plea agreement Defendant waived his right to appeal but

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reserved his right to claim ineffective assistance of counsel. Dkt. Nos. 8, 10. Defendant was

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thereafter sentenced to a custodial term of 72 months and five years of supervised release. Dkt.

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No. 17. Judgment was entered on March 5, 2014. Dkt. No. 19.

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BACKGROUND

Defendant filed the instant Motion on February 23, 2015. Dk. No. 26. On April 23, 2015, the

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Court ordered the United States to file a response. Dkt. No. 28. Defendant filed a first amended

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CASE NO.: 5:15-cv-00824-EJD
ORDER DENYING DEFENDANT’S §2255 MOTION
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motion and supporting documents on June 11, 2015. Dkt. Nos. 29-31. The United States filed a

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response on June 19, 2015 and Defendant filed a reply on August 3, 2015. Dkt. Nos. 32, 34.

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III.

DISCUSSION

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Pursuant to 28 U.S.C. § 2255, a federal prisoner may move to vacate, set aside or correct a

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sentence by demonstrating (1) that the sentence was imposed in violation of the Constitution or

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laws of the United States, (2) that the court was without jurisdiction to impose such sentence, (3)

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that the sentence was in excess of the maximum authorized by law, or (4) that the sentence is

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otherwise subject to collateral attack.

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A. Ground One
As his first ground for relief Defendant contends that his counsel rendered ineffective

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Northern District of California

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assistance by failing to inform him that he had a limited amount of time to agree to the

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government’s plea offer and that the prosecution engaged in misconduct. In his reply brief,

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Defendant states that he “wishes to dismiss his claims regarding the plea agreement and

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prosecutorial misconduct in light of other arguments raised by the Government, of which he was

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not previously aware.” Dkt. No. 34, p. 2. Defendant asks “the court to instead focus on

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arguments he presented with regard to his conditions of supervised release” (id.), i.e. Ground Two

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discussed separately below. In light of Defendant’s statements, Defendant’s 2255 motion is

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denied as moot as to his first ground for relief.

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B. Ground Two
As his second ground for relief Defendant contends that his counsel rendered ineffective

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assistance by failing to object to special condition numbers 2, 4, 6, 7, 8, 12 and 13. Defendant

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contends that special condition numbers 2, 12 and 13, which limit use of computers and computer-

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related devices, are vague and overbroad and prevent him from resuming his former occupations

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as an insurance agent and tax preparer. Defendant contends that special condition number 4

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prohibiting possession of materials depicting and/or describing “sexually explicit conduct”

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without permission of the probation officer prevents Defendant from engaging in lawful activities,

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such as watching movies with sexually explicit content, viewing certain art exhibits and owning a

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CASE NO.: 5:15-cv-00824-EJD
ORDER DENYING DEFENDANT’S §2255 MOTION
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biology textbook. Defendant contends that special conditions 6 through 8, which generally

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prohibit contact with minors, unfairly restrict him from engaging in many social activities.

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To establish ineffective assistance of counsel, the petitioner must first show that counsel

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“made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant

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by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The question is

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whether counsel’s representation fell below an objective standard of reasonableness. Id. at 688.

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There is a strong presumption that counsel’s conduct falls within the wide range of reasonable

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professional assistance. Id. at 689. In addition to establishing that counsel fell below an objective

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standard of reasonableness, a petitioner must show prejudice. Id. at 687. This means that a
petition must show that but for counsel’s unprofessional errors, the result of the proceeding would

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United States District Court
Northern District of California

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have been different. Id. at 694.

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Here, Defendant cannot establish prejudice because the court is authorized to impose special

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conditions of supervised release regardless of any defense counsel’s objections at sentencing. See

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United States v. Caccavallo, 508 F. App’x 682, 683 (9th Cir. 2013) (holding that defendant was

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not prejudiced by counsel’s failure to object to special conditions). Defendant also cannot

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establish prejudice because the special conditions that were imposed are appropriate.

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Special conditions of supervised release are permissible provided that “they are reasonably

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related to the goal[s] of deterrence, protection of the public, or rehabilitation of the offender, and

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involve no greater deprivation of liberty than is reasonably necessary for the purposes of

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supervised release.” United States v. Blinkinsop, 606 F.3d 1110, 1119 (9th Cir. 2010) (citing

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United States v. Rearden, 349 F.3d 608, 618 (9th Cir. 2003)). Special condition numbers 2, 12 and

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13 limit use of computers and the internet. They require that the defendant obtain approval from

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his probation officer before possessing or using a computer. The Ninth Circuit has consistently

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upheld these types of restrictions as a condition of supervised release for individuals convicted of

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child pornography offenses similar to Defendant’s offense. See, e.g., United States v. Riley, 576

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F.3d 1046, 1048 (9th Cir. 2009) (affirming all conditions limiting computer usage to approved

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uses only); United States v. Antelope, 395 F.3d 1128, 1142 (9th Cir. 2005) (affirming prohibition

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CASE NO.: 5:15-cv-00824-EJD
ORDER DENYING DEFENDANT’S §2255 MOTION
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on “access to any on-line computer service”); United States v. Rearden, 349 F.3d 608, 621 (9th

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Cir. 2003) (there is “no reasonable possibility that . . . a ‘computer-related device’ . . . would be

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interpreted beyond the normal accoutrements of one’s personal computer such as disks and disk

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drives, devices for extra storage, etc.”). Furthermore, because special condition numbers 2, 12 and

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relied upon by Defendant. Unlike in United States v. Barsumyan, 517 F.3d 1154 (9th Cir. 2008),

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United States v. Blinkinsop, 606 F.3d 1110, 1123 (9th Cir. 2010), and United States v. Riley, 576

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F.3d at 1048, Defendant may use a computer device as long as he obtains prior approval from his

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probation officer. Therefore, Defendant’s challenge to special condition numbers 2, 12 and 13

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fails.

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Northern District of California

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The Ninth Circuit has also upheld the limitation in special condition number 4 for individuals

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convicted of offenses similar to Defendant’s offense. See e.g., United States v. Daniels, 541 F.3d

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915, 927-28 (9th Cir. 2008) (possession of thousands of images and videos of child pornography);

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Rearden, 349 F.3d at 620 (shipping fifteen images child pornography over the internet); see also

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United States v. Adams, 343 F.3d 1024, 1034–1036 (9th Cir. 2003) (explaining that “sexually

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explicit conduct” as defined by 18 U.S.C. § 2256(2) is neither vague nor overbroad). Defendant’s

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reliance on United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015) is misplaced. In Gnirke, the

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Ninth Circuit affirmed a condition prohibiting possession of materials depicting “sexually explicit

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conduct” that are deemed inappropriate by the probation officer. Gnirke, 775 F.3d at 1166.

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Therefore, defendant’s challenge to special condition number 4 fails.

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Finally, the Ninth Circuit has consistently upheld limitations on contact with minors such as

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special condition numbers 6 through 8 for individuals convicted of offenses similar to Defendant’s

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offense. See e.g., Daniels, 541 F.3d at 928 (upholding loitering condition nearly identical to

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condition 6); United States v. Stoterau, 524 F.3d 988, 1008 (9th Cir. 2008) (upholding interaction

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conditions nearly identical to conditions 7 and 8); Rearden, 349 F.3d at 620 (condition 6); United

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States v. Bee, 162 F.3d 1232, 1235 (9th Cir.1998) (condition 6). The theoretical possibility that

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special conditions 6 through 8 will prevent Defendant from associating with children he might sire

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CASE NO.: 5:15-cv-00824-EJD
ORDER DENYING DEFENDANT’S §2255 MOTION
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in the future is insufficient to establish prejudice.

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IV.

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For the reasons set forth above, Defendant’s motion is DENIED.

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CONCLUSION

IT IS SO ORDERED.
Dated: October 10, 2018
______________________________________
EDWARD J. DAVILA
United States District Judge

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United States District Court
Northern District of California

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CASE NO.: 5:15-cv-00824-EJD
ORDER DENYING DEFENDANT’S §2255 MOTION
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