Hechler v. USA

Filing 2

ORDER denying Petition to Vacate under 28 USC 2255. A certificate of appealability is denied. Signed by Judge John A. Houston on 11/19/2018.(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Civil No.:
16cv02473 JAH
Criminal No.: 11cr03702 JAH

JEFFREY PAUL HECHLER,
Petitioner,

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v.

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UNITED STATES OF AMERICA,

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ORDER DENYING MOTION TO
VACATE

Respondent.

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Petitioner Jeffrey Paul Hechler filed a motion challenging his conviction under 28

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U.S.C. section 2255. Respondent filed a response and Petitioner filed a traverse. After a

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thorough review of the record and the parties’ submissions, and for the reasons set forth

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below, this Court DENIES Petitioner’s motion.

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BACKGROUND

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On August 19, 2011, Petitioner was charged in a two count indictment with

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distribution of images of minors engaged in sexually explicit conduct in violation of 18

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U.S.C. section 2252 and possession of matters containing images of minors engaged in

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sexually explicit conduct in violation of 18 U.S.C. section 2253. See Doc. No. 1. On July

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25, 2012, a nine count superseding indictment was filed charging Petitioner with

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distribution of images of minors engaged in sexually explicit conduct in violation of 18

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U.S.C. section 2252 and possession of matters containing images of minors engaged in
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sexually explicit conduct in violation of 18 U.S.C. section 2253. On the third day of

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testimony in his criminal trial, Petitioner changed his plea to guilty. See Doc. No. 52.

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At the sentencing hearing, this Court sentenced Petitioner to 168 months on counts

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1 through 5 and 120 months on counts 6-9 to be served concurrently, followed by five years

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of supervised release. See Doc. No. 68. Petitioner appealed the sentence and the Ninth

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Circuit Court of Appeals affirmed the Court’s judgment.

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DISCUSSION

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Petitioner moves to vacate or modify his sentence on the ground he was denied
effective assistance of counsel.
I.

Legal Standard

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A section 2255 motion may be brought to vacate, set aside or correct a federal

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sentence on the following grounds: (1) the sentence “was imposed in violation of the

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Constitution or laws of the United States,” (2) “the court was without jurisdiction to impose

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such sentence,” (3) “the sentence was in excess of the maximum authorized by law,” or (4)

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the sentence is “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

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II. Analysis

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Petitioner argues he was denied his Sixth Amendment right to effective assistance

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of counsel when trial counsel failed to conduct adequately research and present legal

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authority in support of a request for a downward variance. He contends counsel was

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unaware of and failed to refer to United States v. Henderson, 649 F.3d 955 (9th Cir. 2011),

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in which the Ninth Circuit instructed that in child pornography cases, the sentencing court

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should consider the unique history of the Sentencing Guidelines for child pornography and

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how they were driven by political pressure in Congress to override recommendations of

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the Sentencing Commission and result in guidelines near the statutory maximum for the

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“generic” offender.

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Respondent argues there is nothing to indicate counsel’s performance was deficient

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or that counsel failed to adequately and effectively present mitigating factors in support of

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a lower sentence.

Respondent contends counsel filed a sentencing memorandum
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Criminal No.: 11cr03702 JAH

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articulating mitigating factors, had Petitioner evaluated by a psychologist and argued the

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guidelines were advisory while urging the Court to impose a lower sentence. Additionally,

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Respondent argues there is no reasonable probability the Court would have imposed a

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different sentence had counsel raised Henderson at the sentencing hearing. Respondent

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maintains the case was decided more than two years prior to the sentencing hearing and

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Petitioner only assumes the Court was unaware of the case, and both counsel and the Court

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were aware the guidelines were advisory. Respondent further maintains even if counsel

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raised Henderson, it can be distinguished from the instant case because it concerned an

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individual charged with possession of children pornography, not distribution and

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possession which carries a mandatory minimum sentence and a higher base offense level;

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the pre-sentence report in Henderson recommended a below guideline sentence unlike here

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where the probation department sought a higher sentence than that sought by the

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government; and Petitioner’s background falls short of the tragic physical and sexual abuse

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suffered by Henderson as a child.

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In his traverse, Petitioner argues he was sentenced two years after the decision in

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Henderson and there is no reason for trial counsel’s failure to cite the case. Although trial

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counsel requested a sentence of seven years in prison and the Court imposed a sentence of

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fourteen years, twenty months below the guideline minimum of 188 months, he contends

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the same disparity was present in Henderson. Petitioner maintains only this Court can

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determine if the sentence imposed would have been lower had the Court been aware that

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the guidelines for this offense were themselves inflated and should be viewed with a

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scrutiny that other guidelines do not require.

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The Sixth Amendment to the Constitution provides that every criminal defendant

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has the right to effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668

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(1984), the Supreme Court articulated the test for determining whether a criminal

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defendant’s counsel rendered constitutionally ineffective assistance. To sustain a claim of

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ineffective assistance, a petitioner has the burden of showing (1) that his or her defense

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counsel’s performance was deficient, and (2) that the deficient performance prejudiced his
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or her defense. Id. at 690-92; Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995).

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Petitioner must prove both elements. The court may reject his claim upon finding either

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that counsel’s performance was reasonable or that the claimed error was not prejudicial.

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Strickland, 466 U.S. at 697. The Strickland test applies to federal collateral proceedings.

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Id.

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The Court finds Petitioner fails to demonstrate prejudice. While counsel did not cite

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to Henderson during sentencing, this Court was aware that the Sentencing Guidelines are

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advisory and the Court was free to depart downward from the recommended range. Absent

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any indication otherwise, the presumption is that the Court was aware that it had discretion

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to depart below the low-end of the guideline range and Petitioner provides nothing to

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suggest that the Court would have departed further had defense counsel cited Henderson.

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Accordingly, Petitioner fails to demonstrate ineffective assistance of counsel.

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B. Hearing

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Respondent maintains Petitioner’s claim does not merit a hearing. This Court finds

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the record conclusively establishes Petitioner is not entitled to relief. Accordingly, there is

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no basis for an evidentiary hearing. See 28 U.S.C. § 2255(b).

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III. Certificate of Appealability

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Pursuant to Rule 11 of the Rules following 28 U.S.C. section 2254, a district court

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“must issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant” in Section 2255 cases such as this. A habeas petitioner may not appeal the denial

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of a Section 2255 habeas petition unless he obtains a certificate of appealability from a

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district or circuit judge. 28 U.S.C. § 2253(c)(1)(B); see also United States v. Asrar, 116

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F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts retain authority to issue

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certificates of appealability under AEDPA). A certificate of appealability is authorized “if

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the applicant has made a substantial showing of the denial of a constitutional right.” 28

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U.S.C. § 2253(c)(2). To meet this threshold showing, a petitioner must show that: (1) the

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issues are debatable among jurists of reason, (2) that a court could resolve the issues in a

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different manner, or (3) that the questions are adequate to deserve encouragement to
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proceed further. Lambright v. Stewart, 220 F.3d 1022, 1025-26 (9th Cir. 2000) (citing

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Slack v. McDaniel, 529 U.S. 473 (2000); Barefoot v. Estelle, 463 U.S. 880 (1983)).

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Based on this Court’s review of the record, this Court finds no issues are debatable

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among jurists of reason and no issues could be resolved in a different manner. This Court

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further finds that no questions are adequate to deserve encouragement to proceed further.

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Therefore, Petitioner is not entitled to a certificate of appealability.

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CONCLUSION AND ORDER

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Based on the foregoing, IT IS HEREBY ORDERED:

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1.

Petitioner’s motion to vacate, set aside or correct his sentence is DENIED;

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Petitioner is DENIED a certificate of appealability.

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and

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Dated: November 19, 2018

HON. JOHN A. HOUSTON
UNITED STATES DISTRICT JUDGE

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16cv02473 JAH
Criminal No.: 11cr03702 JAH