Podwys v. USA
Filing
10
MEMORANDUM DECISION & ORDER Denying 1 Motion under 28 U.S.C. § 2255. Signed by Judge David Sam on 07/11/2018. (kpf)
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
DIVISION
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)
DARRELL PODWYS,
) Case No. 2:18-cv-00117-DS
2:10-cr-01095-DS
Petitioner,
)
vs.
)
UNITED STATES OF AMERICA,
)
Respondent.
MEMORANDUM DECISION
AND ORDER
)
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I. INTRODUCTION
Petitioner Darrell Podwys, proceeding pro se, has filed a Motion to Vacate, Set
Aside or Correct his Sentence under 28 U.S.C. § 2255. Following a plea of guilty in the
United States District Court for the Middle District of Florida Orlando Division, Petitioner
was convicted of Possession of Child Pornography in violation of 18 U.S.C. §
2252A(a)(5)(B) and (b)(2). He was sentenced on May 22, 2009, to a term of 36 months
imprisonment to be followed by a life term of supervised release. Judgement was
entered on May 27, 2009.
On December 13, 2010, jurisdiction for Petitioner’s supervised release was
transferred from the Middle District of Florida to the District of Utah. And on January
26, 2017, in the United States District Court for the District of Utah, Petitioner admitted
to amended allegations that he violated of the terms of his supervised release, including
that he possessed child pornography. This Court, finding that he had violated the
terms of supervision, sentenced Petitioner to 60 months custody with the Bureau of
Prisons pursuant to 18 U.S.C. § 3583(k), followed by a life term of supervised release.
Petitioner did not appeal his sentence.
II. DISCUSSION
In support of his section 2255 motion, Petitioner urges that he received
ineffective assistance of counsel because his attorney failed to argue that 18 U.S.C. §
3583(k) is unconstitutional as set forth in United States v. Haymond, 869 F.3d 1153
(10th Cir. 2017), petition for cert. filed (No. 17-1672), (June 15, 2018). To prevail on an
ineffective assistance of counsel claim, Petitioner must show that his attorney’s
performance was constitutionally deficient, and that his attorney’s deficient performance
prejudiced him in some way. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Counsel’s performance is deficient if it “falls below an objective standard of
reasonableness.” Id. at 688. “‘To be deficient, the performance must be outside the
wide range of professionally competent assistance. In other words, it must have been
completely unreasonable, not merely wrong.’” Byrd v. Workman, 645 F.3d 1159,1168
(10th Cir.)(citations omitted), cert. denied, 565 U.S. 1063 (2011). “[R]eview of counsel’s
performance under the first prong of Strickland is a ‘highly deferential’ one.” Id. (citation
omitted). Accordingly, “case law makes clear that ‘[c]ounsel is strongly presumed to
have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment,’... and that a petitioner ‘bears a heavy burden’
when it comes to overcoming that presumption”. Id. (citations omitted). A defendant is
prejudiced if it is shown “that there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. Failure to establish either of the two Strickland prongs is
dispositive. Byrd, 645 F.3d at 1168 (citing Strickland, 466 U.S. at 697)).
The Court concludes that Petitioner fails to establish either that his attorney’s
performance was deficient or that he was prejudiced by counsel’s failure to make a
Haymond argument. As Respondent notes, Haymond was decided seven months after
this Court imposed sentence. Ordinarily, courts refuse to deem counsel ineffective for
failing to predict the development of the law. See, e.g., Green v. Johnson, 116 F.3d
1115, 1125 (5th Cir. 1997). And as Respondent further notes, under Teague v. Lane,
489 U.S. 288 (1989), “a new rule of constitutional law, announced after a defendant’s
conviction became final, is generally not applicable on collateral review of that
conviction. See United States v. Mora, 293 F.3d 1213, 1218 (10th Cir. 2002).” ECF
No. 8 at p. 7; see also See Bey v. United States, 399 F.3d 1266, 1268 (10th Cir.
2005)(emphasis in original) (citing Tyler v. Cain, 533 U.S. 656, 663 (2001) (“a new rule
is made retroactive to cases on collateral review only when the Supreme Court explicitly
holds that the rule it announced applies retroactively to such cases.”). “Haymond has
not been ‘made retroactive to cases on collateral review by the Supreme Court.’ 28
U.S.C. § 2255(h)(2).” ECF No. 8 at p.7.
In his Reply to Respondent’s pleading, Petitioner now urges that he “relies, not
on Haymond, but prior case law on which the decision in Haymond was based. These
same issues are equally applicable to Petitioner and do not rely on Haymond in any
way.” ECF No. 9 at pp.4-5.1
Petitioner’s revised position likewise fails. Besides now
inappropriately arguing matters not specifically raised in his Petition, Petitioner also falls
1
Petitioner’s reliance on a letter from his prior attorney dated November 14,
2017, attached as exhibit 1 to his Reply, is hearsay and disregarded as such.
short of showing that his attorney’s performance was deficient under Strickland. It is
uncontroverted that “[a]t the time of petitioner’s sentence the law in every circuit
pursuant to 18 U.S.C. § 3583(k) required the imposition of a mandatory minimum term
of 60-months imprisonment for a violation of possessing child pornography.” ECF No. 8
at p.4. Given that circumstance, Petitioner cannot, and has not, established that his
attorney committed “serious errors” in light of “prevailing professional norms” such that
“representation fell below an objective standard of reasonableness.” Strickland, 466
U.S. at 687-688.
III. CONCLUSION
For the reasons stated, as well as generally for those reasons set forth by
Respondent United States in it opposition memorandum, Petitioner Mr. Podwys’ Motion
under 28 U.S.C. § 2255 (ECF. No. 1) is denied.
IT IS SO ORDERED.
Dated this 11th day of July, 2018.
BY THE COURT:
DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT
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