Harden v. USA
ORDER denying and dismissing Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Kenneth D. Bell on 6/3/2021. (Pro se litigant served by US Mail.)(nvc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
BRIAN SCOTT HARDEN,
UNITED STATES OF AMERICA,
THIS MATTER is before the Court on initial screening of Petitioner’s Motion to Vacate,
Set Aside or Correct Sentence under 28 U.S.C. § 2255 [CV Doc. 1].1
On April 16, 2019, Pro Se Petitioner Brian Scott Harden (“Petitioner”) was charged in a
Bill of Indictment with one count of knowing receipt of child pornography in interstate commerce
in violation of 18 U.S.C. § 2252A(a)(2)(B) (Count One); one count of knowing distribution of
child pornography in interstate commerce in violation of 18 U.S.C. § 2252A(a)(2)(B) (Count
Two); and one count of knowing possession with intent to view child pornography shipped in
interstate commerce involving a prepubescent minor and a minor under age 12 in violation of 18
U.S.C. § 2252A(a)(5)(B) (Count Three). [CR Doc. 1: Bill of Indictment]. Petitioner agreed to
plead guilty to Count Two and admitted to in fact being guilty of this charge, and the Government
Citations to the record herein contain the relevant document number referenced preceded by either the
letters “CV,” denoting that the document is listed on the docket in the civil case file number 5:21-cv-00080KDB, or the letters “CR,” denoting that the document is listed on the docket in the criminal case file number
agreed to dismiss the remaining charges in the Indictment.
[CR Doc. 12 at ¶¶ 1-2: Plea
In the plea agreement, the parties agreed, pursuant to Rule 11(c)(1)(B) of the Federal Rules
of Criminal Procedure, to jointly recommend that the Court make the following findings and
conclusions relative to the sentencing guidelines:
The parties stipulate and agree that under U.S.S.G.
§1B1.2(c), this plea agreement establishes that Defendant did
commit the offenses described in Counts One and Three of the
Indictment, each being in violation of 18 U.S.C. § 2252A(a).
Therefore, he should be treated as if he had been convicted of those
Pursuant to U.S.S.G. §3D1.2, Counts One through Three
shall be grouped together into a single Group.
The base offense level for the offenses is 22 pursuant to
A two level enhancement pursuant to U.S.S.G. §2G2.2(b)(2)
is applicable because the material involved prepubescent minors or
minors who had not attained the age of twelve years.
A five level enhancement pursuant to U.S.S.G.
§2G2.2(b)(3)(B) is applicable because the defendant distributed the
material in exchange for any valuable consideration, but not for
A four level enhancement pursuant to U.S.S.G.
§2G2.2(b)(4) is applicable because the offenses involved the use of
a computer or an interactive computer service for the possession,
transmission, receipt, or distribution of the material, or for accessing
with intent to view the material.
A two level enhancement pursuant to U.S.S.G. §2G2.2(b)(6)
is applicable because the offenses involved the use of a computer or
an interactive computer service for the possession, transmission,
receipt, or distribution of the material, or for accessing with intent
to view the material.
U.S.S.G. §1B1.2(c) provides that, “[a] plea agreement … containing a stipulation that specifically
establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted
of additional count(s) charging those offense(s).”
A five level enhancement pursuant to U.S.S.G.
§2G2.2(b)(7)(D) is applicable because the offenses involved 600 or
[Id. at ¶¶ 8(a) – 8(g)]. As such, Petitioner agreed to recommend to the Court at sentencing a base
offense level of 22 and 18 levels in enhancements. Petitioner also stipulated that there was a
factual basis for his guilty plea and that he read and understood the Factual Basis filed with his
plea agreement. [Id. at ¶ 12]. The Factual Basis provided, in pertinent part, as follows:
On or about June 13, 2018, the defendant did knowingly
distribute visual depictions of prepubescent minors engaging in
sexually explicit conduct.
Defendant distributed the visual depictions of the minors
engaging in sexually explicit conduct using a means and facility of
interstate and foreign commerce; he sent the visual depictions to
another individual through Skype, which is an internet messaging
application that, in addition to allowing users to video chat and send
messages back and forth, allows users to send files such as images
or videos to each other.
The visual depictions that the defendant distributed on or
about June 13, 2018, included an adult man placing his penis into
the vagina of a child who appears to be between seven and ten years
old; and adult female sitting on the face of a naked child who appears
to be between six and ten years old; a naked child, who appears to
be between four and six years old, with an adult’s penis in her
[Doc. 13 at 1-2: Factual Basis]. Finally, as part of his plea, Petitioner waived “all rights to contest
the conviction and sentence in any appeal or post-conviction action,” except for claims of
ineffective assistance of counsel and prosecutorial misconduct. [Id. at ¶ 18].
Petitioner pleaded guilty in accordance with the plea agreement. [CR Doc. 14: Acceptance
and Entry of Guilty Plea]. A United States Magistrate Judge accepted Petitioner’s guilty plea after
conducting a thorough plea colloquy, during which Petitioner was represented by counsel. [See
id.]. Under oath, Petitioner told the Court that he received a copy of the indictment and discussed
it with his attorney. [Id. at ¶ 8]. The Court then explained the charges and the maximum penalties
and mandatory minimum sentences for those charges. [Id.]. Petitioner told the Court that he fully
understood the charges against him, including any maximum or minimum penalties he faced. [Id.
at ¶ 9]. The Petitioner further attested that he had spoken with his attorney regarding how the U.S.
Sentencing Guidelines might apply to his case and that, in some circumstances, Petitioner may
receive a sentence higher or lower than that called for in the Guidelines. [Id. at ¶¶ 13, 15]. The
Petitioner attested that he understood that the District Judge could not determine the applicable
Guidelines range until after Petitioner’s Presentence Investigation Report (PSR) was prepared. [Id.
at ¶ 14]. The Petitioner told the Court that he understood that if his sentence is more severe than
Petitioner expected, the Petitioner will still be bound by his plea and would have no right to
withdraw it. [Id. at ¶ 17]. The Petitioner stated, under oath, that he is in fact guilty of the counts
in the Bill of Indictment to which he was pleading guilty. [Id. at ¶ 24].
After the terms of the plea agreement were summarized, Petitioner told the Court that he
was aware that a factual basis had been filed in his case and that he had read it, understood it, and
agreed with it. [Id. at ¶¶ 25, 30-1]. Petitioner stated that no one had threatened, intimidated, or
forced him to enter his plea of guilty. [Id. at ¶ 32]. Petitioner also statement that, other than the
terms of his plea agreement, no one made him promises of leniency or a lighter sentence to induce
him to plead guilty. [Id. at ¶ 33]. Finally, Petitioner told the Court that he was “satisfied with the
services of [his] lawyer in this case.” [Id. at ¶ 35].
Prior to Petitioner’s sentencing hearing, a probation officer prepared a PSR. [CR Doc. 20].
The offense conduct described in the PSR mirrored the factual basis exactly. [Id. at ¶¶ 6-8]. With
respect to the offense level computation, the probation officer noted the parties’ stipulation under
U.S.S.G. §1B1.2(c) that the plea agreement established that Petitioner did commit the offenses
described in Counts One and Three and each Count would be treated as if he had been convicted
of those additional Counts. [Id. at ¶ 25]. The PSR also set forth the relevant conduct in detail.
[Id. at ¶¶ 10-17]. The probation officer also found, in keeping with the plea agreement, that Counts
One, Two, and Three were grouped for guideline calculation purposes under U.S.S.G. §3D1.2(d).
[Id. at ¶ 26]. Because the guidelines called for a base offense level of 22 on Counts One and Two,
as opposed to a base offense level of 18 on Count Three, the probation officer found, as the parties
recommended in the plea agreement, that the base offense level was 22. [Id. at ¶ 27]. The
probation officer also recommended a total of 18 levels in enhancements consistent with the
parties’ plea agreement stipulations, [Id. at ¶¶ 28-32; cf. CR Doc. 12 at ¶¶ 8(d) – 8(g)], for an
adjusted offense level of 40 [CR Doc. 20 at ¶ 36]. With a three-level reduction for acceptance of
responsibility, Petitioner’s Total Offense Level (TOL) was 37. [Id. at ¶¶ 38-40]. With a Criminal
History Category of I and a TOL of 37, the probation officer noted the guideline imprisonment
range would have been 210 to 262 months. [Id. at ¶ 90]. However, because the statutory maximum
sentence of 20 years, 18 U.S.C. § 2252A(b)(1), was less than the maximum of the guideline range,
the guideline range was 210 months to 240 months, U.S.S.G. § 5G1.1(c)(1). [Id. at ¶¶ 89-90].
Petitioner was sentenced on April 30, 2020 and judgment on Petitioner’s conviction was
entered the next day. [CR Doc. 24: Judgment]. The Court sentenced Petitioner to a term of
imprisonment of 210 months. [Id. at 2]. An Amended Judgment addressing restitution, but
otherwise consistent with the original Judgment, was entered on August 12, 2020. [CR Doc. 29:
Amended Judgment]. Petitioner did not appeal.
On May 17, 2021, Petitioner filed the pending Section 2255 motion to vacate. [CV Doc.
1]. In his Section 2255 motion, Petitioner claims his counsel was ineffective for (1) failing to
investigate and present evidence of mitigating factors at sentencing, such as Petitioner’s “mental
health issues” and “testimony from doctors,” which would have established grounds for reduction
of Petitioner’s sentence; (2) failing to consult with Petitioner about the merits of appealing “several
rulings in imposing a sentence;” and (3) failing to object to the “PSR’s sentence calculations or
factual descriptions.” [Id. at 5-7].
For relief, Petitioner seeks a reduction in his sentence. [Id. at 13].
STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to
promptly examine motions to vacate, along with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims
set forth therein. After conducting an initial screening and examining the record in this matter, the
Court finds that the Petitioner has not asserted a colorable claim for relief cognizable under §
2255(a) and the arguments presented by Petitioner can be resolved without an evidentiary hearing
based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th
The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions,
the accused has the right to the assistance of counsel for his defense. See U.S. CONST. amend.
To show ineffective assistance of counsel, Petitioner must first establish a deficient
performance by counsel and, second, that the deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In making this determination, there is “a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689; see also United States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010).
Furthermore, in considering the prejudice prong of the analysis, the Court “can only grant relief
under . . . Strickland if the ‘result of the proceeding was fundamentally unfair or unreliable.’”
Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v. Fretwell, 506 U.S. 364,
369 (1993)). Under these circumstances, the petitioner “bears the burden of affirmatively proving
prejudice.” Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008). If the petitioner fails to meet
this burden, a “reviewing court need not even consider the performance prong.” United States v.
Rhynes, 196 F.3d 207, 232 (4th Cir. 1999), opinion vacated on other grounds, 218 F.3d 310 (4th
To establish prejudice in the context of a guilty plea, a petitioner must show that “there is
a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007) (quoting Hill
v. Lockhart, 474 U.S. 52, 59 (1985)). Further, a petitioner must show that proceeding to trial
would have been objectively reasonable. See United States v. Fugit, 703 F.3d 248, 260 (4th Cir.
2012). In evaluating such a claim, statements made by a defendant under oath at the plea hearing
carry a “strong presumption of verity” and present a “formidable barrier” to subsequent collateral
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
Indeed, “in the absence of
extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is
conclusively established, and a district court should dismiss . . . any § 2255 motion that necessarily
relies on allegations that contradict the sworn statements.” United States v. Lemaster, 403 F.3d
216, 221-22 (4th Cir. 2005).
Mitigating Factors at Sentencing
When the ineffective assistance claim relates to a sentencing issue, the petitioner must
demonstrate a “‘reasonable probability’ that his sentence would have been more lenient” but for
counsel’s error. Royal v. Taylor, 188 F.3d 239, 249 (4th Cir. 1999) (quoting Strickland, 466 U.S.
at 694)). If the petitioner fails to meet this burden, the “reviewing court need not even consider
the performance prong.” United States v. Rhynes, 196 F.3d 207, 232 (4th Cir. 1999), opinion
vacated on other grounds, 218 F.3d 310 (4th Cir. 2000). To support an ineffective assistance claim
based on the failure to investigate, a petitioner must present specific information to show what
favorable evidence the investigation would have yielded. See Beaver v. Thompson, 93 F.3d 1186,
1195 (4th Cir. 1996).
Here, Petitioner contends that his counsel was ineffective because he failed “to investigate
and present mitigating factors to the Court at sentencing.” [CV Doc. 1 at 5]. Petitioner argues that
his attorney failed to present evidence at sentencing regarding Petitioner’s “mental health issues”
and “testimony from doctors” establishing grounds for a sentence reduction. [Id.]. Petitioner,
however, does not allege what favorable evidence an investigation would have yielded. See
Beaver, 93 F.3d at 1195. Nor does Petitioner allege what a doctor could or would have testified
to or what mental health issues would have established grounds for a reduction in Petitioner’s
sentence. In this regard, Petitioner also fails to demonstrate that his sentence would have been
more lenient but for his attorney’s alleged errors. See Royal, 188 F.3d at 249.
Moreover, the PSR that was before the Court at sentencing described Petitioner’s mental
and emotional health issues. [CR Doc. 20 at ¶¶ 69-71]. It provided that Petitioner began therapy
for sexual deviant behavior and sex addiction in 2019, which he continued for approximately eight
months prior to his detainment. [Id. at ¶ 69]. The PSR also provided that Petitioner was diagnosed
with depression and anxiety in or about 2015 and that he was prescribed medication to treat these
conditions. [Id. at ¶ 70]. The PSR also stated that Petitioner was recently awarded 100% disability
for depression and anxiety, that he has had suicidal ideations since he was 25 years old, and that
“he had a firearm inside his mouth on multiple occasions.” [Id. at ¶ 71]. As such, it appears that
Petitioner’s mental health issues were before the Court, in any event. The Court will, therefore,
dismiss this claim.
Objections to the PSR
On this issue, Petitioner claims only that his attorney failed to object to the sentencing
calculations and factual descriptions in the PSR. [CV Doc. 1 at 7]. This claim is subject to
dismissal as vague and conclusory. See United States v. Dyess, 730 F.3d 354, 359-60 (4th Cir.
2013) (holding it was proper to dismiss § 2255 claims based on vague and conclusory allegations).
Petitioner does not point to any particular calculation or fact to which his attorney should have
objected. Petitioner also fails to demonstrate that his sentence would have been more lenient but
for his counsel’s alleged, though unsupported, error. See Royal, 188 F.3d at 249.
Moreover, the sentencing calculations and offense conduct in the PSR were wholly
consistent with the parties’ plea agreement stipulations and the factual basis incorporated into the
plea agreement, respectively. As such, Petitioner has not and cannot show that objections to these
items by his attorney would have changed the result in any respect and may very well have resulted
in loss of the benefit of plea agreement itself. The Court will, therefore, dismiss this claim.
Consultation Regarding Appeal
It is well-settled that when a defendant clearly instructs his attorney to file a notice of appeal
from a criminal judgment, the failure to file the notice of appeal constitutes per se ineffective
assistance of counsel. That is, the defendant is presumed to have suffered prejudice no matter the
potential merits of his claims for relief or whether he has waived his appellate rights, as Petitioner
has done through his written plea agreement in this case. See Evitts v. Lucey, 469 U.S. 387, 391405 (1985); United States v. Poindexter, 492 F.3d 263, 269 (4th Cir. 2007).
Petitioner claims that his counsel was ineffective for failing to consult with Petitioner
regarding the merits of taking an appeal from “several rulings [by the Court] in imposing a
sentence.” [CV Doc. 1 at 6]. Petitioner, however, does not state what those rulings were nor does
he claim that he clearly instructed his attorney to file a notice of appeal and that his attorney failed
to do so. Petitioner, therefore, has failed to show deficient performance of his attorney relative to
an appeal. This claim will be dismissed on these grounds and because it is vague and conclusory
in the first instance. See Dyess, 730 F.3d at 359-60.
In sum, for the reasons stated herein, Petitioner cannot show deficient performance or
prejudice on any ground for relief. His ineffective assistance claims are, therefore, denied.
For the foregoing reasons, the Court denies and dismisses Petitioner’s § 2255 petition.
IT IS, THEREFORE, ORDERED that:
Petitioner’s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. §
2255 [Doc. 1] is DENIED and DISMISSED.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of
appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338
(2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when relief is
denied on procedural grounds, a petitioner must establish both that the dispositive
procedural ruling is debatable and that the petition states a debatable claim of the
denial of a constitutional right).
IT IS SO ORDERED.
Signed: June 3, 2021
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