Dehghani v. USA
Filing
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ORDER denying motion to vacate, correct or set aside pursuant to 28 U.S.C. § 2255. A certificate of appealability is also denied. All other pending motions are discharged by this Order. Signed on 5/23/11 by District Judge Greg Kays. (Francis, Alexandra)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
KAMRON E. DEHGHANI,
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Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
Case No. 10-00259-CV-W-DGK
ORDER
Pending before the Court is Kamron E. Dehghani’s Motion to vacate, correct or set aside
his sentence pursuant to 28 U.S.C. § 2255. Docs. 1-2. The Court has reviewed this Motion in
conjunction with the Government’s Suggestions in Opposition and the Movant’s Reply. Docs. 8,
23. The Court has also reviewed the Movant’s Motion for return of property, the Government’s
Response and the Movant’s Reply. Docs. 22, 25, 27. For the reasons discussed herein, the
Movant’s motions are DENIED. A certificate of appealability is also DENIED.
Background
On April 20, 2006, the Respondent was indicted with four child pornography counts.
CM/ECF 4:06-cr-00168-GAF, Doc. 1.1 The counts were as follows:
1. Count One – Publishing a notice to exchange child pornography over the internet in
violation of 18 U.S.C. § 2251(d).
2. Count Two – Attempted receipt of child pornography over the internet in violation of
18 U.S.C. § 2252(a)(2).
3. Count Three – Attempted distribution of child pornography over the internet in
violation of 18 U.S.C. § 2252(a)(2).
1
The underlying criminal case will hereinafter be cited as “Crim. Doc. ___.”
4. Count Four – Possession of child pornography in violation of 18 U.S.C. §2252(a)(4).
Id. The case proceeded to a jury trial before the Honorable Gary Fenner, which commenced on
September 17, 2007. Crim. Doc. 304. After two days of trial, the jury convicted the Movant on
all counts. Crim. Doc. 305. While in custody prior to sentencing, the Movant attempted to send
a letter which made various threats, including some against Judge Fenner. United States v.
Dehghani, 550 F.3d 716, 719 (8th Cir. 2008). When this became known, the Movant filed a
recusal motion. Judge Fenner denied this motion, finding that these were not serious threats but
rather an attempt to manipulate the system by obtaining a different sentencing judge. Id. On
March 5, 2008, Judge Fenner sentenced the Movant to 360 months on Count 1, 72 months on
Counts 2 and 3, to run consecutive to Count 1, and 120 months on Count 4, to run concurrently,
for a total sentence of 432 months imprisonment. Crim. Doc. 335. The Movant filed a timely
notice of appeal, but his conviction and sentence were affirmed by the Eighth Circuit on
December 22, 2008. Crim. Doc. 352-1. The Movant did not petition the Supreme Court of the
United States for a writ of certiorari. The Movant then filed the instant case on March 17, 2010.
Standard
Section 2255 allows a district court to “vacate, set aside or correct [a] sentence” which
“the court was without jurisdiction to impose…or…was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). The Court must order an
evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief.” Id. at § 2255(b). Absent a showing of cause and
prejudice for the procedural default, or actual innocence, a movant cannot bring a claim in a
2255 action that he failed to bring on direct appeal. Bousley v. United States, 523 U.S. 614, 632
(1998). Conversely, a movant cannot relitigate claims that were “raised and decided on direct
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appeal.” Dall v. United States, 957 F.2d 571, 572 (8th Cir. 1992); cf. United States v. Pitcher,
559 F.3d 120, 123-24 (2d Cir. 2009) (noting that a similar claim based on a “different legal
‘ground’” is not barred in a 2255 action).
The Sixth Amendment guarantees legal counsel to all criminal defendants facing
potential imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 37 (1972). But see Scott v. Illinois,
440 U.S. 367, 373 (1979) (holding that the counsel requirement is for convictions resulting in
“actual imprisonment” not “fines or the mere threat of imprisonment”). The right to counsel
necessarily includes effective assistance of counsel. Strickland v. Washington, 466 U.S. 668,
687 (1984).
An attorney is constitutionally ineffective only when there was deficient
performance—meaning “errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment”—and prejudice—meaning the defendant
was deprived of a reliably fair trial. Id.
Discussion
In Ground One, the Movant alleges that his confession was involuntary. Ground Two
claims that charging him with possession and receipt of child pornography constitutes a Double
Jeopardy violation because “both have the same elements and one is a lesser-included offense.”
Doc. 1 at 4. Ground Three alleges “failure to conduct psych exam/evaluation and competency
hearing” based on the Movant’s belief that the Government was “out to get him…since he was a
child” and his alleged suicide attempt. Id. at 5-6. Ground Four alleges that Judge Fenner
wrongly refused to recuse himself. Ground Five alleges an illegal search of his home and seizure
of his computer.
Ground Six alleges an illegal sentence in violation of the “parsimony
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principle”2 found in 18 U.S.C. § 3553. Ground Seven raises various ineffective assistance
claims. Ground Eight alleges that the jury pool underrepresented or systematically excluded
racial minorities. On February 14, 2011, the Movant filed a “Supplemental Motion” containing
two additional grounds—(1) that a police forensic specialist tampered with his computer to make
it appear that images were accessible to the average computer user and (2) additional arguments
regarding the substantive reasonableness of his sentence and the constitutionality of the child
pornography guidelines. The Court will consider all ten of these grounds in turn.
A. The Movant’s Case Is Timely
As a threshold issue, the Court finds that the Movant’s case is timely. Section 2255 has a
one year statute of limitations. 28 U.S.C. § 2255(f)(1). “For the purpose of starting the clock on
§ 2255’s one-year limitation period…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.” Clay v. United States, 537 U.S. 522, 525 (2003). The Eighth Circuit issued its
opinion affirming the Movant’s conviction on December 22, 2008. The Movant filed no request
for panel rehearing or rehearing en banc. Accordingly, pursuant to Supreme Court Rule 13, the
Movant had 90 days from December 22 to file his petition for certiorari, which would be March,
23, 2009. While the Court disagrees with the Government’s specific calculation of the time for
filing, the Court agrees that this case is timely filed because it was filed within one year of March
23, 2009—90 days after the affirmance of his conviction.3
2
This is another way of stating the statutory policy that a sentence be “sufficient, but not greater than necessary, to
comply with [the statutory factors].” 18 U.S.C. § 3553(a). See also United States v. Betcher, 534 F.3d 820, 827-28
(8th Cir. 2008) (rejecting this argument against a 9000-month sentence for various child pornography charges).
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The Government would give the Movant 90 days from the filing of the formal mandate pursuant to Federal Rule of
Appellate Procedure 41. Supreme Court Rule 13(3) and Clay specifically reject use of the mandate as the triggering
event for the 90 day certiorari filing period. Clay, 537 U.S. at 524-25. Furthermore, the portion of Rule 41 cited by
the Government deals with seeking a stay of the mandate, which the Movant did not do.
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B. The Movant Cannot Relitigate His Claim of an Involuntary Confession
The Movant represented himself at a suppression hearing during which he argued that the
police used coercive tactics to overcome his free will and obtain an effectively involuntary
confession.
Crim. Doc. 96.
Judge Fenner—adopting the Magistrate’s Report and
Recommendations—denied the Movant’s Motion to suppress his statements. The Movant then
litigated this issue on appeal, and lost. Dehghani, 550 F.3d at 719-21. The Movant raises the
same grounds to argue that his confession was involuntary—that he was emotionally distraught
during the interview, that detective raised his voice and slammed his hand on the table, etc.
These arguments were heard and rejected by multiple levels of the federal judiciary. The Court
respects the Movant’s right to disagree with those rulings, but the law is clear that he cannot now
relitigate them. Dall, 957 F.2d at 573.
C. The Movant’s Double Jeopardy Claim is Defaulted
The Movant claims that his conviction for both possession and receiving child
pornography violate the Double Jeopardy clause. The Movant did not raise this argument on
direct appeal and offers as explanation that his appeal counsel felt that it would be more effective
to focus on other issues. The Movant is correct that a conviction for possessing and receiving the
same child pornography at the same time would constitute a Double Jeopardy violation. United
States v. Bobb, 577 F.3d 1366, 1374 (11th Cir. 2009) (citing Ball v. United States, 470 U.S. 856,
862 (1985)) (analogizing Ball’s holding regarding possession and receipt of a firearm). But this
is not true when the issue is “two distinct offenses, occurring on two different dates…” Bobb,
577 F.3d at 1375.
The Indictment charged that the Movant attempted to receive child
pornography at various times between September 1, 2005 and March 9, 2006. It also charged,
and the Government proved, that the Movant possessed child pornography on March 9, 2006.
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The Government argues that its evidence was primarily that the attempted receipt was via
Limewire, whereas the Movant admitted that at least some of the material he admitted to
possessing was obtained via email. While this may have been the evidence, the jury instructions
did not state this, and the overlapping time periods seem to preserve at least the possibility that
the jury convicted the Movant of possessing the same material it had convicted him for
receiving. However, this does not change the fact that the Movant did not raise this on appeal
and that a Double Jeopardy claim is usually not cognizable in a 2255 action. United States v.
Herzog, 644 F.2d 713, 716 (8th Cir. 1981). Finally, to the extent this claim can be construed as
an ineffective assistance claim for his appellate counsel’s refusal to raise the issue on appeal, the
Court cannot find ineffective assistance based on the strategic decision to focus on certain claims
over others, because parties have limited space in their briefs and limited time at oral argument.
Strickland, 466 U.S. at 681 (holding that “strategic choices must be respected…if they are based
on professional judgment”).
D. The Movant’s Mental Examination Argument is Defaulted
The Movant claims that Judge Fenner erred by not ordering a mental examination and
holding a competency hearing. He again cites his appellate counsel’s alleged desire to focus on
other issues on appeal to explain his default. The Government argues that the Movant was
observed by numerous parties throughout the case and never exhibited any behavior requiring a
competency examination. He even represented himself at various hearings, only electing to have
standby counsel try the case shortly before the trial was scheduled to begin. Accordingly, there
is no reasonable chance for the Movant to show prejudice excusing his default.
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E. The Movant Cannot Relitigate His Recusal Argument
Ground Four asserts that Judge Fenner was obligated to recuse himself in light of threats
the Movant made against him and various other people. The Movant appealed this refusal to
recuse and the Eighth Circuit rejected his argument, holding that Judge Fenner properly refused
to indulge the Movant’s far-fetched attempt to manipulate the system into giving him a new
sentencing judge. Dehghani, 550 F.3d at 721-22. This claim is therefore not cognizable in the
2255 action.
F. The Movant’s Search and Seizure Claim is Defaulted
The Movant claims that the police illegally searched his house and seized his computer,
which was crucial evidence. He moved to suppress on this basis that his consent was illegally
obtained, which Judge Fenner denied upon the Magistrate’s Report and Recommendation. To
explain his default, he again offers his appellate attorney’s alleged desire to focus on other
issues. To excuse this default or show ineffective assistance, the Movant must show prejudice.
The Movant testified under oath at trial that he agreed to the search of his computer, making no
reference to the alleged duress he was under. This negates any reasonable chance of showing
prejudice, because the Movant’s testimony was consistent with the Magistrate’s findings of fact
regarding his consent to search. Crim. Doc. 153 at 5, Tr. at 128. This claim is defaulted and
therefore not cognizable in a 2255 action.
G. The Movant Cannot Relitigate His Sentencing Claims
The Movant alleges that he was subjected to an illegal sentence in violation of the
“parsimony principle.” He made these arguments to the Eighth Circuit, which rejected them.
The Movant was convicted of serious crimes and Judge Fenner properly recognized the
inadequacy of the Guideline range, varying upward from 327 months to 432 months. The Eighth
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Circuit affirmed the substantive reasonableness of this sentence. The Movant cannot relitigate
this claim in a 2255 action.
H. Ineffective Assistance of Counsel
The Movant alleges that he received ineffective assistance of counsel at various points in
his prosecution and appeal.4
i.
Trial Counsel
First, the Movant claims that his trial counsel, Assistant Federal Public Defender Anita
Burns, failed to contact witnesses for a suppression hearing. At this point in the case, the
Movant had elected to represent himself and Ms. Burns was standby counsel only. In other
words, Ms. Burns was not actually serving as the Movant’s counsel at this time and cannot have
been ineffective.
Next, the Movant claims that Ms. Burns should have pursued a theory that he now is
pursuing—that the images were not accessible by him and that the detective tampered with the
computer to make them appear accessible. The Movant’s only support for this theory is that
during an initial examination, the detective indicated that he could not find any pornography.5
Regardless, the Movant’s own expert testified that over 100 images were in the active space—
that is, not deleted—of the Movant’s computer. Tr. at 179. It was not deficient performance to
refuse to pursue this baseless theory, and there was no prejudice due to the presence of accessible
images.
4
As previously mentioned, the Movant represented himself at various points. The Government asserts that he is
now claiming his pro se representation was ineffective, which he cannot do. See United States v. Brockman, 183
F.3d 891, at 898 n.7 (8th Cir. 1999) (finding it “well established that a defendant who exercises his right to appear
pro se cannot thereafter complain [about] the quality of his own defense…”). Any such claim will therefore be
construed as an allegation that he should not have been allowed to proceed pro se.
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As noted by the Magistrate, the problem was apparently that the Movant’s computer was too slow for the
detective’s software. Crim. Doc. 153 at 7.
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Next, the Movant claims that Ms. Burns misrepresented issues of obstruction and
acceptance of responsibility under the Guidelines and that, but for this, he would have accepted a
17-year plea bargain. The Government notes that the 17-year deal referred to by the Movant was
a binding plea offer which Judge Fenner did not accept, and was therefore never actually
available to him. Accordingly, the Movant can show no prejudice related to any claim premised
on the idea that but for some action of Ms. Burns, he would have accepted this plea deal.
The Movant claims that Ms. Burns was afraid of him, thus preventing her from
effectively representing him, citing an U.S. Marshals report allegedly made by Ms. Burns. At
sentencing, Ms. Burns denied that she ever made such a report or that she ever took any threat
against her seriously. Tr. at 234. The Movant provides no more than conclusory allegations that
Ms. Burns’ alleged fear of him caused deficient performance that prejudiced him, and there is
therefore no merit to this claim.
The Movant claims that Ms. Burns should have requested a mental examination or raised
a defense based on his mental capacity. The Movant represented himself prior to trial. The fact
that he was deemed able to represent himself clearly undercuts any such defense. Crim. Doc.
298 (finding that the Movant knowingly and voluntarily chose to waive his right to counsel).
Furthermore, at sentencing, the Government introduced the Movant’s statements that he often
feigned suicidal ideation “because…it gives him someone to talk to.” Tr. at 282. Considering
this evidence, there was simply no reasonable basis for a mental examination or defense.
The Movant claims that Ms. Burns should have objected to the admission of certain
statements at sentencing, requiring the Government to produce the witnesses.
Hearsay is
admissible at sentencing so long as it bears “sufficient indicia of reliability to support its
probable accuracy.” United States v. Shackelford, 462 F.3d 794, 796 (8th Cir. 2006). Such was
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the case here. For example, the Government introduced the written statements of witnesses who
testified consistently under oath at a previous hearing. Tr. at 265.
The Movant claims that Ms. Burns should have objected to the consecutive sentencing.
Consecutive sentencing is at the sentencing judge’s discretion.
18 U.S.C. § 3584(a).
Furthermore, the reasonableness of the sentence was affirmed on appeal. Ms. Burns was not
ineffective in failing to make a frivolous, futile objection.
ii.
Appellate Counsel
The Movant asserts that appellate counsel, Steve Moss, was under a conflict of interest
because he is employed by the same Federal Public Defender’s office as Anita Burns. This
claim fails as a threshold matter because the Court has found not ineffective assistance of
counsel by Ms. Burns. Furthermore, in the event that the Court had found some problem with
Ms. Burns’ representation, the Movant would still be required to show more than the fact that
trial and appellate counsel share an employer. Amrine v. Bowersox, 238 F.3d 1023, 1030 n.4
(8th Cir. 2001) (dealing with counsel for a co-defendant). Next, he asserts various claims that
Mr. Moss did not appeal or on which he did not petition the Supreme Court of the United States
for a writ of certiorari. The Court has already reviewed various defaulted claims for which the
Movant cannot show prejudice. Regarding Supreme Court review, the Movant likewise shows
nothing to indicate that any claim, roundly rejected by the Eighth Circuit, would have even been
accepted by the Supreme Court, much less ultimately successful.
iii.
Pro se Representation
As discussed supra in note four, pro se defendants cannot complain about their own
ineffective assistance of counsel. Electing to proceed pro se is a waiver of the right to counsel,
and therefore the right to effective assistance of counsel. The Court will therefore consider
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whether the Movant should have been allowed to proceed pro se. He now cites his medication
regime as a reason that he was not knowingly waiving his right to counsel. This was discussed at
the suppression hearing and the Magistrate found no reason to question the Movant’s
competence to proceed pro se. Further, the mental symptoms which he now claim precluded him
from representing himself were diagnosed post-conviction. Finally, the Movant’s filings seem to
suggest that he was somehow intimidated or forced to represent himself by his CCA cellmate.
There is nothing in the record to support that the Movant was somehow coerced into representing
himself. To the contrary, the Magistrate urged him to accept Ms. Burns’ representation many
times, which he finally did—further undercutting the idea that he had “no choice” but to proceed
pro se.
I. The Movant’s Claims Regarding the Venire Panel are Defaulted
The Movant claims that the jury venire did not represent a fair cross section of the
community because all but two potential jurors were “upper class white folks.” As a person of
Iranian descent, the Movant is particularly incensed that there were no persons of Middle Eastern
origin on the jury panel. The Movant failed to object to the composition of the jury panel at the
time, did not raise the issue on appeal, and offers no evidence other than his recollection
regarding the race of potential jurors. A criminal defendant is not entitled to have members of
any particular racial or ethnic background on a jury or in a jury pool. Strauder v. West Virigina,
100 U.S. 303, 305 (1879). Rather, parties are prohibited from using challenges to exclude jurors
on the basis of race and the courts are prohibited from “systematically excluding” potential jurors
from the selection process on the basis of a protected characteristic. Batson v. Kentucky, 476
U.S. 79, 86 (1986) (race-based challenges), Duren v. Missouri, 439 U.S. 357, 360 (1979) (jury
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pool challenges). The Movant presents no evidence of anything of the sort, negating any
possibility of showing prejudice excusing his default.
J. The Movant’s New and Renewed Theories of Defense are Not Cognizable in a 2255
Action
As discussed previously, the Movant now asserts a theory that the images were
inaccessible to him and that his computer was tampered with. This is pure speculation and
conclusory statements that are undercut by the defense’s witness, Mr. Schnack, who testified that
approximately 100 images were in the “active space” of the Movant’s computer. For this reason,
there is no prejudice, and the Movant does not claim actual innocence. He would have to present
some evidence to do so, but the fact that he does not even claim innocence makes this new
theory unavailable in a 2255 action. The Movant also tries to revive his theory that he could not
have committed these crimes because his AOL account was not in service in March 2006.
Notwithstanding the fact that the Movant cannot relitigate this theory at this point, the
Government has provided proof that AOL reported the Movant’s account in January 2006 for
advertising child pornography. Doc. 75-2. That, and the fact that the indictment charged the
Movant with crimes dating back to September 2005, shows that the Movant can show no
prejudice related to this claim.
K. The Movant’s Final Claim is Another Attempt to Relitigate His Sentence
In his final supplemental claim, the Movant returns to his arguments about his sentence.
His sentence was appealed and affirmed by the Eighth Circuit, and cannot be relitigated in a
2255 action.
L. Miscellaneous Issues
The Movant raises a number of issues, such as requesting return of evidence, that are not
cognizable in a 2255 action. He requests appointment of counsel, which is denied because the
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Court finds that the record conclusively establishes that he is not entitled to relief. He requests
that this case and his criminal case be sealed and that the appellate opinion be unpublished. The
Court has no power to change the publication status of an Eighth Circuit opinion, nor is there any
authority for sealing this case. See, e.g., Does I through XXIII v. Advanced Textile Corp., 214
F.3d 1058, 1067 (9th Cir. 2000) (describing the general presumption of public access to judicial
proceedings).
Conclusion
Without recounting each and every claim, the Court finds for the foregoing reasons that
the record conclusively shows that the Movant is not entitled to relief. The Movant committed
serious crimes and was found guilty beyond a reasonable doubt.
His sentence, while
significantly above the Guideline range, was justified by his crimes and other conduct and was
affirmed on appeal. Accordingly, his Motion is DENIED. A certificate of appealability is also
DENIED. All other pending Motions are discharged by this Order.
IT IS SO ORDERED
Dated: May 23, 2011
/s/ Greg Kays
GREG KAYS,
UNITED STATES DISTRICT JUDGE
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