Lewandowski v. USA - 2255

Filing 3

MEMORANDUM OPINION (c/e/m to AUSA O'Malley 8/10/18 sat). Signed by Judge Deborah K. Chasanow on 8/10/2018. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
EUGENE LEWANDOWSKI
:
v.

:

Civil Action No. DKC 16-3421
Criminal No. DKC 14-0082

:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for resolution are the motion
to

vacate

sentence

filed

by

Petitioner

Eugene

Lewandowski

(“Petitioner”) (ECF No. 43) and the government’s motion to seal
its response in opposition (ECF No. 48).
briefed,

and

necessary.

the

court

now

Local Rule 105.6.

rules,

no

The issues have been
hearing

being

deemed

For the following reasons, the

motion to vacate sentence will be denied and the motion to seal
will be denied in part.
I.

Background
On July 15, 2014, pursuant to a plea agreement, Petitioner

pled guilty to the charges of sexual exploitation of a minor for
the purpose of child pornography (“Count 1”) and transportation
of child pornography (“Count 5”).

Petitioner was sentenced to

360 months on Count 1 and a concurrent term of 240 months on
Count 5.

Petitioner appealed to the United States Court of

Appeals for the Fourth Circuit, which dismissed the appeal on

July

16,

2015,

because

Petitioner

“knowingly

and

voluntarily

waived his right to appeal and . . . the issues [Petitioner
sought] to raise on appeal f[e]ll squarely within the compass of
his waiver of appellate rights.”

(ECF No. 39).

Petitioner did

not file a petition for writ of certiorari with the Supreme
Court

of

the

United

States.

Accordingly,

convictions became final on October 14, 2015.

Petitioner’s

See United States

v. Sosa, 364 F.3d 507, 509 (4th Cir. 2004) (stating that because
the petitioner did not file a petition for writ of certiorari in
the Supreme Court, his conviction became “final” for the purpose
of § 2255’s one year statute of limitations ninety days after
the court dismissed his direct appeal (citing Clay v. United
States, 537 U.S. 522, 525 (2003) (holding that “a judgment of
conviction becomes final when the time expires for filing a
petition

for

certiorari

contesting

the

appellate

court’s

affirmation of the conviction”)).
On October 12, 2016, Petitioner filed the pending motion to
vacate sentence pursuant to 28 U.S.C. § 2255.

(ECF No. 43).1

The government was directed to respond and did so on January 12,
2017.

(ECF No. 49).

its response.

The government also filed a motion to seal

(ECF No. 48).

1

Petitioner also submitted a copy of the results of his
Static-99 psychosexual evaluation, an evaluation used to assess
a sex offender’s risk of reoffending, performed on August 19,
2016. (See ECF No. 43-1).
2

II.

Government’s Motion to Seal
A.

Standard of Review

A motion to seal must comply with Local Rule 105.11 (D.Md.
2016), which provides that “[a]ny motion seeking the sealing of
pleadings, motions, exhibits or other papers to be filed in the
Court record shall include (a) proposed reasons supported by
specific factual representations to justify the sealing and (b)
an explanation why alternatives to sealing would not provide
sufficient protections.”
common

law

right

to

This rule endeavors to protect the

inspect

and

copy

judicial

records

and

documents, Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597
(1978),

while

recognizing

that

competing

interests

sometimes

outweigh the public’s right of access, In re Knight Publ’g Co.,
743 F.2d 231, 235 (4th Cir. 1984).

Before sealing any documents,

the court must provide the non-moving party with notice of the
request to seal and an opportunity to object.
notice

requirement

may

be

satisfied

by

Id. at 234.

docketing

“reasonably in advance of deciding the issue.”

the

This
motion

Id. at 235.

Finally, the court should consider less drastic alternatives to
sealing, such as filing redacted versions of the documents.

If

the court decides that sealing is appropriate, it should also
provide reasons, supported by specific factual findings, for its
decision to seal and for rejecting alternatives.

3

Id.

B.

Analysis

The

government

filed

a

motion

to

seal

its

response

opposition to Petitioner’s motion to vacate sentence.
48).

The

government

states

that

because

it

in

(ECF No.

cites

to

its

sentencing memorandum which was filed under seal and 18 U.S.C. §
3509(d)(2) provides that it must file any papers that disclose
the name or other information concerning a child under seal, the
response in opposition should remain under seal.
does

not

explain

alternatives

to

why

redactions

sealing

would

or
not

other

less

protect

information, as required by Local Rule 105.11.
3509(d)(2)

provides

that

any

person

who

The government

the

restrictive
sensitive

Additionally, §

files

a

paper

that

discloses the name of or any information concerning a child must
“submit to the clerk of the court – (A) the complete paper to be
kept under seal; and (B) the paper with the portions of it that
disclose the name of or other information concerning a child
redacted, to be placed in the public record.”
Accordingly,

the

government

will

be

(emphasis added).

ordered

to

redact

appropriate information from its response and file the redacted
document

within

fourteen

days.

remain under seal.

4

The

original

document

will

III. Motion to Vacate Sentence
A.

Standard of Review

To be eligible for relief under § 2255, a petitioner must
show, by a preponderance of the evidence, that his “sentence was
imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the maximum
authorized
attack.”
the

files

by

law,

or

is

otherwise

28 U.S.C. § 2255(a).
and

records

of

subject

to

collateral

If the § 2255 motion, along with

the

case,

conclusively

shows

that

Petitioner is not entitled to relief, a hearing on the motion is
unnecessary and the claims raised in the motion may be dismissed
summarily.
court

§ 2255(b).

shall

vacate

and

If Petitioner makes this showing, “the
set

the

judgment

aside

and

shall

discharge the prisoner or resentence him or grant a new trial or
correct the sentence as may appear appropriate.”
B.

Id.

Ineffective Assistance of Counsel

Petitioner argues that his defense counsel was ineffective
at sentencing because counsel failed to (1) defend against the
government’s argument that Petitioner poses a significant risk
for recidivism and (2) object to various “unconstitutional and
unreasonable” probation terms.
In a motion to vacate pursuant to 28 U.S.C. § 2255 based on
ineffective assistance of counsel, “[t]he challenger’s burden is
5

to show ‘that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment.’”
(2011)

(quoting

(1984)).

Harrington v. Richter, 562 U.S. 86, 104

Strickland

v.

Washington,

466

U.S.

668,

687

When considering a claim of deficient performance,

courts must evaluate the conduct from counsel’s perspective at
the time.

See Strickland, 466 U.S. at 690.

“The question is

whether an attorney’s representation amounted to incompetence
under ‘prevailing professional norms,’ not whether it deviated
from best practices or most common custom.”
Strickland, 466 U.S. at 190).
performance

to

be

Id. at 105 (quoting

In other words, “[f]or counsel’s

constitutionally

ineffective,

been completely unreasonable, not merely wrong.”
179 F.3d 904, 914 (10th Cir. 1999).

it

must

have

Boyd v. Ward,

Furthermore, a determination

need not be made concerning the attorney’s performance if it is
clear

that

no

prejudice

performance deficiency.

could

have

resulted

from

some

To demonstrate prejudice, Petitioner

must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the results of the proceeding
would have been different.”

Id. at 694.

“Even though sentencing does not concern the defendant’s
guilt or innocence, ineffective assistance of counsel during a
sentencing hearing can result in Strickland prejudice because
‘any

amount

of

[additional]

jail
6

time

has

Sixth

Amendment

significance.’”

Lafler v. Cooper, 566 U.S. 156, 165 (2012)

(quoting Glover v. United States, 531 U.S. 198, 203 (2001)).
1.

Recidivism

Petitioner

argues

that

counsel

was

ineffective

because

counsel failed to have him undergo a psychosexual evaluation
prior

to

his

sentencing

hearing

and

failed

to

mitigate

the

government’s argument that Petitioner was a significant risk for
recidivism.2

(ECF No. 43, at 8).

Evaluating

counsel’s

decision

at

the

time

it

was

made,

“[t]he court doubts that the decision not to submit a medical
evaluation

‘amount[s]

professional norms.”’”

to

incompetence

under

“prevailing

Brown v. United States, No. CCB-09-1677,

2012 WL 1969677, at *2 (D.Md. May 31, 2012) (citations omitted).
“Strickland

does

not

require

counsel

to

investigate

every

conceivable line of mitigating evidence no matter how unlikely
the effort would be to assist the defendant at sentencing.

Nor

does Strickland require defense counsel to present mitigating
evidence at sentencing in every case.

Both conclusions would

interfere with the ‘constitutionally protected independence of

2

Petitioner argues that “Defense counsel knew, via the
Government’s sentencing memo[randum]” that the government would
argue at sentencing that Petitioner had a high likelihood of
recidivism.
(ECF No. 43, at 9).
The government argued that
Petitioner was a significant risk for recidivism in its sealed
sentencing memorandum filed eleven days before the sentencing
hearing.
7

counsel’ at the heart of Strickland.”

Wiggins v. Smith, 539

U.S. 510, 533 (2003) (quoting Strickland, 466 U.S. at 689).
As the Government points out, at sentencing it did not
focus on Petitioner’s potential recidivism, but rather on the
nature and circumstances of Petitioner’s offense.
33, at 6-13).

(See ECF No.

The government emphasized Petitioner’s abuse of

trust of the victim and victim’s father as well as the breadth
of Petitioner’s child pornography collection and distribution.
In response, defense counsel reasonably focused on Petitioner’s
remorse

and

recidivism.

willingness
At

to

sentencing,

change,
counsel

indirectly
highlighted

addressing
that

while

incarcerated Petitioner completed a program on getting motivated
to change and served as a teaching assistant in an adult basic
education class.

(Id. at 16, 18).

Counsel read Petitioner’s

letter to the court which reflected Petitioner’s remorse and
desire to seek counseling and change his ways.

(Id. at 18-19).

Counsel further argued that Petitioner “desperately wants” and
“desperately needs treatment[,]” and specifically requested that
the court impose treatment as a condition of his sentence and
recommended one of two sex offender treatment programs available
at a specific prison.
that

Petitioner’s

overstated

and

(Id. at 20).

criminal

that

history

Petitioner’s

should be I rather than II.

In addition, counsel argued
under

criminal

(Id. at 15).
8

the

Guidelines

history

was

category

Therefore, counsel

presented

mitigating

evidence

at

sentencing

and

performed

adequately.
Moreover, no prejudice resulted because Petitioner has not
shown that the psychosexual evaluation would have changed his
sentence.3

As the court emphasized at Petitioner’s sentencing

hearing, Petitioner’s conduct alone as to Count 1 “is deserving
of an extremely harsh punishment[,]” as it is “unthinkable that
someone in a parental role could do what [Petitioner did] to a
child.”

(ECF No. 33, at 25).

As to Count 5, the court pointed

out that the Guidelines were calculated on 600 or more images
and that Petitioner had 14,000 images, the distribution of which
was

“ongoing

and

escalating.”

(Id.

at

26).

Thus,

the

Guidelines “capture only a part of the reprehensible conduct”
that Petitioner engaged in. (Id.).
Petitioner

points

out

that

the

psychosexual

evaluation

concludes that Petitioner “is at a moderate risk for reoffending
upon his release into the community[.]”
However,

Petitioner’s

emphasis

on

the

(ECF No. 43-1, at 3).
distinction

between

moderate and significant risk for reoffending is of no moment.4

3

This court may consider evidence about the actual process
of decision to the extent such evidence is part of the
sentencing record. See Strickland, 466 U.S. at 695.
4

As the Government points out, Petitioner’s score of 4
points on the Static-99 actually equates to a “moderate-high”
risk
for
recidivism.
See
Static-99
–
Tally
Sheet,
http://www.static99.org/pdfdocs/static-99-coding-rules_e71.pdf.
9

Defense counsel performed adequately at sentencing and counsel’s
failure
result

to
in

have
any

a

psychosexual

prejudice

to

evaluation

prepared

not

Therefore,

his

ineffective

Petitioner.5

did

for

ineffective assistance claim fails on this basis.
2.

Supervised Release Conditions

Petitioner

also

failing

to

object

several

supervised

sentencing.

argues

to

the

release

that

counsel

language

and

conditions

was

constitutionality

that

were

imposed

of
at

(ECF No. 43, at 13, 19).

Petitioner was, of course, facing a lengthy sentence of
imprisonment.

Counsel

term of incarceration.

necessarily

focused

on

minimizing

the

Supervised release would not begin for

many years and conditions of supervision may always be modified
during supervision.

United States v. Johnson, 529 U.S. 53, 60

(2000); 18 U.S.C. § 3583(e)(2).

Thus, counsel’s decision not to

challenge the proposed conditions must be viewed through that
lens.

Moreover, none of the now challenged conditions were

inappropriate under the circumstances.

5

Petitioner argues that under American Bar Association
standards, counsel’s performance was deficient and objectively
unreasonable.
(ECF No. 43, at 8-9).
However, “[i]n any case
presenting an ineffectiveness claim, the performance inquiry
must be whether counsel’s assistance was reasonable considering
all the circumstances.
Prevailing norms of practice as
reflected in American Bar Association standards and the like . .
. are guides to determining what is reasonable, but they are
only guides.” Strickland, 466 U.S. at 688 (emphasis added).
10

District courts have “broad latitude”
to
impose
appropriate
conditions
of
supervised release. United States v. Armel,
585 F.3d 182, 186 (4th Cir. 2009). However,
any condition must satisfy two fundamental
prerequisites. First, the condition must be
“‘reasonably
related’
to
the
factors
referred to in 18 U.S.C. § 3583(d)(1), which
include ‘the nature and circumstances of the
offense and the history and characteristics
of
the
defendant,’
id.
§
3553(a)(1);
‘protect[ing]
the
public
from
further
crimes,’
id.
§
3553(a)(2)(C);
and
‘provid[ing] the defendant with needed . . .
medical
care[]
or
other
correctional
treatment,’ id. § 3553(a)(2)(D).”
Armel,
585 F.3d at 186 (alterations in original).
Second, the condition must “‘involve[] no
greater deprivation of liberty than is
reasonably necessary’ to achieve the goals
enumerated in § 3553(a).”
Id. (quoting 18
U.S.C.
§
3583(d)(2))
(alteration
in
original).
Additionally, the sentencing
court must provide “the rationale for the
special conditions it imposes.”
Id.; see,
e.g., United States v. Shannon, 743 F.3d
496, 502 (7th Cir. 2014) (“Adequate findings
are especially important when the subject
matter of the ban is a lifetime ban on
otherwise-legal material.”); United States
v. Warren, 186 F.3d 358, 366 (3d Cir. 1999)
(“[C]ourts of appeals have consistently
required
district
courts
to
set
forth
factual findings to justify special . . .
conditions.”).
United States v. Maxson, 281 F.Supp.3d 594, 596 (D.Md. 2017).
a.

Restricted Contact with Minors

Petitioner

first

challenges

the

supervised

release

condition that, unless approved by a probation officer, he will
“have no contact with people under the age of 18” and “will not
congregate or loiter near any school, park, playground, arcade,
11

or other places frequented by children under the age of 18[.]”
(ECF No. 33, at 27).

Petitioner argues that prohibiting him

from having contact with anyone under the age of eighteen is a
greater deprivation of liberty than necessary under § 3583(d)(2)
because “the sexual contact involved in this case involved a
child much more younger than 18” and “[r]estrictions against
interacting with teenagers who are just shy of adult age has no
relationship to [his] case.”

(ECF No. 43, at 15).

Petitioner

further argues that this restriction “could include a server in
a restaurant, a clerk at a store, a minor on a bus, or numerous
other examples.”

(Id.).

Lastly, on this point, Petitioner

argues that nothing in the record suggests that his conduct has
anything to do with his activities in public places.
Contrary to Petitioner’s contention, the condition does not
prohibit him from having contact with anyone under the age of
eighteen without prior approval.

After imposing the condition,

the court explicitly stated, “This provision does not apply to
people under the age of 18 with whom you must deal in order to
obtain ordinary and usual commercial services[,]” and provided a
clear example - “That is, if they’re working at a place you are
frequenting.”

(ECF No. 33, at 28).

Thus, this condition does

not “swe[ep] so broadly that it would effectively prevent him
from going to the grocery store unaccompanied.”
15).

Petitioner could do just that.
12

(ECF No. 43, at

The government cites to several cases where other courts
have upheld conditions of supervised release that restrict a
defendant’s contact with minors and prohibit the defendant from
congregating or loitering at locations frequented by minors when
the offense shows that the defendant poses a risk to children.
See

United States v. Shultz, 733 F.3d 616, 619-20 (6th

Cir.

2013); United States v. Ellis, 720 F.3d 220, 225-226 (5th Cir.
2013); United States v. Smith, 606 F.3d 1270, 1282-83 (10th Cir.
2010); United States v. Moran, 573 F.3d 1132, 1140 (11th Cir.
2009);

United States v. Stoterau, 524 F.3d 988, 1008 (9th Cir.

2008); United States v. Johnson, 446 F.3d 272, 280-81 (2d Cir.
2006); United States v. Ristine, 335 F.3d 692, 696-97 (8th Cir.
2003).

In the Fourth Circuit, a particular restriction does not

require an “offense-specific nexus.”
685 F.3d 404, 407 (4th

United States v. Worley,

Cir. 2012) (quoting

United States v.

Perazza-Mercado, 553 F.3d 65, 70 (1st Cir. 2009)).
impose

any

condition

that

is

“reasonably

relevant statutory sentencing factors.
Petitioner’s
children

and

the

offense

shows

condition

is

that
not

The court may

related”

to

the

Id.
he

is

a

overly

risk

broad

to
or

minor
vague.

Petitioner sexually abused a minor child, recorded it, and had
over 14,000 images of child pornography on his computer.

The

condition imposed serves the statutory sentencing purposes of
public

protection

and

rehabilitation
13

under

18

U.S.C.

§§

3553(a)(2)(C) and (D) and does not impose a deprivation greater
than necessary in the case of Petitioner.
b.

Restrictions on Viewing Sexually Explicit Material

Petitioner

also

challenges

the

constitutionality

of

the

condition that he “not own, use, possess, view, or ready any
material,

including

pictures,

drawings,

videos

video

or

photographs,

games

depicting

books,
and/or

writings,
describing

sexually explicit conduct or frequent any place that is involved
with pornography as defined in [18 U.S.C. § 2256(2)]” (ECF No.
33,

at

28).

Petitioner

argues

that

this

condition

is

exceedingly broad and is a greater deprivation of liberty than
necessary under § 3583(d).
Petitioner

cites

to

(ECF No. 43, at 17).
cases

where

probation

conditions

prohibiting the possession of any “pornography” were struck down
on appeal because the conditions were unconstitutionally vague.
(Id. at 16) (citing United States v. Guagliardo, 278 F.3d 868,
872 (9th Cir. 2002); United States v. Loy, 237 F.3d 251, 254 (3d
Cir. 2001)).
In

Guagliardo,

the

condition

that

the

petitioner

not

possess “any pornography” was deemed unconstitutionally vague
because it did not inform the petitioner of what is encompassed
by “pornography” and thus what conduct could result in his being
returned
probation

to

prison.

condition

In
that

Loy,

the

prohibited
14

defendant
him

from

challenged
possession

his
“all

forms of pornography, including legal adult pornography.”

The

court

was

held

that

the

“unconstitutionally

vague

prohibition
because

it

on

pornography

fail[ed]

to

provide

any

method for Loy or his probation officer to distinguish between
those items that are merely titillating and those items that are
‘pornographic’”; nor did the prohibition “provide any guidance
as

to

whether

the

restriction

extend[ed]

only

to

visual

materials, or whether purely textual works and sound recording
f[e]ll within its scope.”

Id.

at 254.

In

Loy, the court

grappled with dictionary definitions of “pornography” and found
that the various definitions “clearly lack[ed]” precision.

Id.

at 263-64.
Here,
“any

the

court

material”

specified

that

that

“depict[s]

the

and/or

restriction

includes

describe[s]

sexually

explicit conduct or frequent any place that is involved with
pornography as defined in 18 [U.S.C. § 2256(2)].”
at 28).

(ECF No. 33,

The condition is not merely a blanket prohibition on

“pornography.”

18

U.S.C.

§

2256(2)(A)

defines

“sexually

explicit conduct” as “actual or simulated (i) sexual intercourse
. . .; (ii) bestiality; (iii) masturbation; (iv) sadistic or
masochistic abuse; or (v) lascivious exhibition of the genitals
or pubic area of any person[.]”

Although Petitioner argues that

this condition would prohibit him from reading classic novels
and

visiting

Barnes

&

Nobles

bookstores,
15

the

restriction

on

sexually explicit materials and sexually oriented establishments
should be read in a “commonsense way” and does not include such
material and establishments.

See Ellis, 720 F.3d at 226-27

(citations omitted).
Petitioner also does not cite to any binding authority that
would suggest that the condition is a greater deprivation of
liberty than necessary in his case.

This circuit has upheld

terms of supervised release that restrict possessing or viewing
any sexually explicit material even when the defendant’s offense
involves a minor only.

United States v. Lord, 393 F.App’x 60,

63 (4th Cir. 2010) (“[T]he condition is reasonable, given Lord’s
background and the need for the district court to protect the
public.”); United States v. Henson, 22 F.App’x 107, 112 (4th Cir.
2001) (“In light of defendant’s conviction for receiving more
than 100 images of child pornography and his prior conviction
for

taking

indecent

liberties

with

a

minor,

the

special

condition of supervised release restricting his possession of
any sexually explicit material was not overly broad and was
sufficiently related to the goals of rehabilitating defendant
and

protecting

the

public[.]”).

The

government

cites

to

numerous cases where courts have upheld conditions of supervised
release
explicit
explicit

that

prohibit

materials
materials

or

a

defendant

from

are

from

frequenting

available.
16

possessing

places
See

where

United

sexually
sexually

States

v.

Carpenter, 803 F.3d 1224, 1240 (11th Cir. 2015); Ellis, 720 F.3d
at 226-27; United States v. Zobel, 696 F.3d 558, 576-77 (6th Cir.
2012); United States v. Thompson, 653 F.3d 688, 694-96 (8th Cir.
2011); United States v. Thielemann, 575 F.3d 265, 273 (3d Cir.
2009); United States v. Daniels, 541 F.3d 915, 927-28 (9th Cir.
2008).
As the government points out, Petitioner’s own submitted
psychosexual evaluation provides that Petitioner’s “prolific use
of pornography . . . featured both child and adult subjects
engaged in a range of sexual activity and behaviors” and that
“even with healthy outlets for his sexual urges, [Petitioner]
remained strongly compelled to view pornography and engage in
masturbatory activity.”

(ECF No. 43-1, at 3).

During this

evaluation, Petitioner “admitted to an interest in pornography
that dated back to young adolescence and that grew to include
images of child pornography when he himself was still a child.”
(Id.).

Petitioner

has

not

shown

that

the

greater deprivation of liberty than necessary.
reasonably

related

to

the

sentencing

condition

was

a

The condition is

purposes

of

public

protection and Petitioner’s rehabilitation.
c.

Computer and Internet Restrictions

Lastly, Petitioner challenges the constitutionality of the
condition that he “not use any computer system, internet-capable
device and/or similar electronic device at any location . . .
17

without the prior approval of the probation office.”6
33, at 28-29).
access

will

(ECF No.

Petitioner argues that restricting his internet
deprive

him

of

“today’s

preeminent

means

of

communication” and that internet use “had little to do” with his
offense,

rendering

“the

greater

deprivation

wholesale

of

adequate deterrence.”

liberty

ban
than

on

Internet

necessary

(ECF No. 43, at 18).

access

to

a

promote

Petitioner cites to

no binding authority to support his position, and the court does
not agree that Petitioner’s collection and distribution of child
pornography

using

an

internet-based

“little to do” with his offense.
pornography

to

countless

file

sharing

program

has

Petitioner distributed child

individuals

using

programs, including undercover officers.

file

sharing

At the time of his

arrest, Petitioner had at least 14,000 images and videos of
child

pornography

Petitioner’s

on

his

submitted

computers

psychosexual

and

other

evaluation

digital
provides

media.
that

Petitioner “manifests many aspects of an addictive behavior in
regards to his use of the Internet.

His excessive use of the

Internet,

quit,

his

repeated

attempts

to

his

compulsion

to

return to it, and his attempts to hide the behavior are all
6

Petitioner incorrectly recites this condition as one
prohibiting his computer use unless approved by a probation
officer for legitimate work.
(ECF No. 43, at 18).
After
imposing the condition the court provided an example of when a
probation officer might provide prior approval – “[t]hat is,
they can approve if it becomes necessary for you to have access
for legitimate work.” (ECF No. 33, at 29).
18

consistent with a model of addictive behaviors.”
at 3).

(ECF No. 43-1,

Notwithstanding Petitioner’s conduct in his offense,

Petitioner may seek prior approval by a probation officer to use
the internet, and thus the condition is not a “wholesale ban” on
his internet use.

“[R]estrictions on internet and computer use

are often imposed in cases involving child pornography,” Ellis,
720

F.3d

at

225,

and

“[a]

condition

limiting

the

use

of

a

computer or an interactive computer service [is recommended] in
cases in which the defendant used such items[,]” U.S.S.G. §
5D1.3(d)(7)(B).

This condition is reasonably related to the

sentencing factors and is not a greater deprivation of liberty
than necessary.7
Petitioner
release

are

has

not

shown

that

unconstitutional,

and

the

terms

thus

of

supervised

that

Counsel’s

performance was deficient in failing to object to them.

Counsel

performed adequately and, after invitation by the court, raised
reasonable objections to the conditions regarding contact with
minors (that Petitioner should not be prohibited from having
contact with his minor son) and computer use (that a complete
7

Petitioner also argues that “any computer system” could
reasonably be read to include an ATM, a self-checkout machine at
a grocery store, or a navigation system. (ECF No. 43, at 19).
However, the “categorical term ‘computers’ is subject to a
‘commonsense understanding of what activities the category[y]
encompass[es]” and would not include such systems.
Ellis, 720
F.3d at 225 (citing United States v. Paul, 274 F.3d 155, 167 (5th
Cir. 2001)).
19

restriction

is

unreasonable

but

monitoring

is

appropriate).

(See ECF No. 33, at 21-23).
Additionally, Petitioner was not prejudiced by counsel’s
alleged

errors.

sentence

of

supervised

imprisonment

release

imprisonment,
assessment

Petitioner

will

Petitioner

and

is

at

currently

the

commence.
will

psychosexual

serving

conclusion
After

complete

evaluation

a

of

his

30-year

which

his

release

from

offender

sex

where

a

risk

the

court

can

better assess at that time which conditions should remain or
should be modified.
alleged

errors

in

Petitioner has suffered no prejudice by the
counsel’s

performance,

and

thus

his

ineffective assistance of counsel claim fails.
IV.

Conclusion
For the foregoing reasons, the motion to vacate sentence

filed by Petitioner Eugene Lewandowski will be denied.

The

government’s motion to seal will be denied in part.
Pursuant to Rule 11(a) of the Rules Governing Proceedings
under 28 U.S.C. §§ 2254 or 2255, the court is also required to
issue or deny a certificate of appealability when it enters a
final

order

adverse

to

the

petitioner.

A

certificate

of

appealability is a “jurisdictional prerequisite” to an appeal
from the court’s order.
659 (4th Cir. 2007).

United States v. Hadden, 475 F.3d 652,

A certificate of appealability may issue

“only if the applicant has made a substantial showing of the
20

denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

Where the court denies the petitioner’s motion on its merits, a
petitioner
reasonable

satisfies
jurists

this

would

constitutional

claims

McDaniel,

U.S.

529

standard

find

the

debatable

473,

484

by

demonstrating

court’s

or

(2000);

Cockrell, 537 U.S. 322, 336–38 (2003).

assessment

wrong.
see

See
also

that

of

the

Slack

v.

Miller–El

v.

Upon its review of the

record, the court finds that Petitioner does not satisfy the
above standard.
of appealability.

Accordingly, it declines to issue a certificate
A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

21