Ponceroff v. United States

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TARA PONCEROFF, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CRIMINAL ACTION NO. 1:18CR40

Civil Action No. 1:20CV38

United States District Court, N.D. West Virginia

August 9, 2022

MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION [1:18CR40, DKT. NO. 74; 1:20CV38, DKT. NO. 1] DENYING MOTIONS FOR APPOINTMENT OF COUNSEL [1:18CR40, DKT NO. 95; 1:20CV38, DKT. NOS. 2, 7], AND DISMISSING CASE WITH PREJUDICE

IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

Pending before the Court is the pro se motion of the petitioner, Tara Ponceroff (“Ponceroff”), seeking to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 (1:18CR40, Dkt. No. 74; 1:20CV38, Dkt. No. 1). Also pending are several motions for appointment of counsel (1:18CR40, Dkt. No. 95; 1:20CV38, Dkt. Nos. 2, 7). For the reasons that follow, the Court DENIES her pending motions and DISMISSES WITH PREJUDICE Civil Action Number 1:20CV38.

I. BACKGROUND

On August 6, 2018, a grand jury indicted Ponceroff on one count of production of child pornography, in violation of 18 U.S.C. §§ 2251(a) and 2251(e) (Count One); one count of aiding and abetting production of child pornography, in violation of 18 U.S.C. §§ 2251(a) and 2251(e) and 2 (Count Two); and two counts of transportation of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(1) and 2252A(b)(1) (Counts Three and Four) (Dkt. No. 1).^[1]On the eve of trial, Ponceroff pleaded guilty to Count Two, aiding and abetting production of child pornography (Dkt. No. 46).

During the sentencing hearing held on May 16, 2018, the Court calculated Ponceroff's base offense level at a level thirty-two (32) (Dkt. No. 68 at 10-11). After applying several offense specific characteristics, accounting for the involvement of multiple counts, and enhancing the offense level to reflect Ponceroff's status as a dangerous sex offender against minors, the Court calculated her adjusted offense level subtotal at a level forty-seven (47). Id. at 10-12. It then reduced her offense level by three (3) levels based on her acceptance of responsibility. Id. at 12. Because hers was one of the rare cases in which the total offense level exceeded the highest offense level provided by the sentencing guidelines, the Court reduced Ponceroff's total offense level to a level forty-three (43). Id. And, even with a criminal history category of I, Ponceroff's guideline range was life imprisonment (Dkt. Nos. 56 at 11-15, 21, 68 at 12). But as her offense carried a statutory maximum sentence of 360 months of imprisonment that maximum became her effective guideline range (Dkt. No. 56 at 21).

Ponceroff's attorneys sought a downward departure or variance to 180 months of imprisonment, the mandatory minimum sentence for her offense (Dkt. No. 68 at 15). In support, they relied on a variety of factors, including the fact that Ponceroff had voluntarily disclosed her criminal conduct to a third party, as well as her youth, lack of criminal history, mental health diagnoses, history of childhood abuse and neglect, and status as a domestic violence survivor. Id. at 15-33. After weighing the factors set forth in 28 U.S.C. § 3553(a), the Court rejected Ponceroff's request for a downward departure or variance. Id. at 111-13. And, after considering the heinous nature of her offense conduct and the grave harm inflicted upon the minor victims, it sentenced Ponceroff to 360 months, the statutory maximum sentence (Dkt. No. 57).

On appeal, Ponceroff's attorneys filed a brief pursuant to Anders v. California, 386 U.S. 378 (1967), stating there were no meritorious grounds for appeal but questioning the validity of her guilty plea (Dkt. Nos. 60, 71). The Court of Appeals of the Fourth Circuit affirmed her conviction (Dkt. No. 71).

On March 4, 2020, Ponceroff timely filed the instant § 2255 motion, arguing that the Court had imposed an excessive sentence, and that she had received ineffective assistance of counsel (Dkt. No. 74). The matter is fully briefed and ripe for decision.

II. STANDARD OF REVIEW

28 U.S.C. § 2255(a) permits a federal prisoner who is in custody to assert the right to be released if (1) “the sentence was imposed in violation of the Constitution or laws of the United States,” (2) “the court was without jurisdiction to impose such sentence,” or (3) “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” A petitioner bears the burden of proving any of these grounds by a preponderance of the evidence. See Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

III. DISCUSSION

A. Waiver of Collateral Attack Rights

As a threshold matter, the Court notes that Ponceroff waived certain collateral attack rights in her plea agreement (Dkt. No. 46 at 5). “[A] criminal defendant may waive [her] right to attack [her] conviction and sentence collaterally, so long as the waiver is knowing and voluntary.” U.S. v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). Federal Rule of Civil Procedure 11 requires the Court to determine whether the defendant accepts a plea voluntarily, without force, threats, or promises. The Court must find that a defendant who pleads guilty understands the nature of the charge and is aware of the consequences of her plea. McCarthy v. U.S., 394 U.S. 459, 464 (1969) . “The representations of the defendant . . . as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceeding.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

During her plea colloquy, Ponceroff twice affirmed the voluntariness of her plea agreement and her understanding of its terms and implications (Dkt. No. 67 at 25, 60-61. 72). Based on this, the magistrate judge found that she had entered her guilty plea knowingly and voluntarily. Id. at 74. On appeal, the Fourth Circuit agreed, finding that the Court “fully complied with Rule 11 in accepting Ponceroff's guilty plea, which [she] entered knowingly and voluntarily” (Dkt. No. 71 at 1-2).

In her plea agreement, Ponceroff waived her right to challenge any “sentence . . . within the maximum provided in the statute of conviction or the manner in which it was determined in any postconviction proceeding, including any proceeding under 28 U.S.C. § 2255” (Dkt. No. 46 at 5). Thus, because the 360-month sentence imposed by the Court is the statutory maximum sentence for her offense, Ponceroff has forfeited her right to challenge the reasonableness of her sentence in this § 2255 proceeding.

B. Ineffective Assistance of Counsel

Ponceroff's plea agreement, however, does not bar her from perfecting any legal remedies she may have on collateral attack regarding ineffective assistance of counsel. Therefore, as it relates to her attorneys' representation, Ponceroff's § 2255 motion is unaffected by the waiver in her plea agreement. At the conclusion of both her plea and sentencing hearings, however, Ponceroff affirmed that she had no complaints concerning her attorneys' performance (Dkt. Nos. 67 at 11-12, 61-62; 68 at 124).

That affirmance belies the arguments raised in her pending motion. Liberally construed, Ponceroff asserts that her counsel was ineffective because (1) one of her attorneys was not authorized to practice law; (2) her attorneys coerced her into entering a guilty plea; and (3) her attorneys should have argued ineffective assistance of counsel on appeal (Dkt. Nos. 74 at 2; 79 at 5-7).

To succeed on an ineffective assistance of counsel claim, the “petitioner must show, by a preponderance of the evidence, that (1) ‘counsel's performance was deficient,' and (2) ‘the deficient performance prejudiced the defense.'” Beyle v. U.S., 269 F.Supp.3d 716, 726 (E.D. Va. 2017) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “The Petitioner must ‘satisfy both prongs, and a failure of proof on either prong ends the matter.'” Beyle, 269 F.Supp.3d at 726 (quoting U.S. v. Roane, 378 F.3d 382, 404 (4th Cir. 2004)).

To satisfy Strickland's first prong, a petitioner must show that counsel's conduct “fell below an objective standard of reasonableness . . . under prevailing professional norms.” Strickland, 466 U.S. at 687-88. But “[j]udicial scrutiny of counsel's performance must be highly deferential” because “[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Id. at 689, 2064. “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .” Id.

To satisfy the second prong, the petitioner must show that her attorney's error was not harmless error, but prejudiced the outcome of the case. Strickland, 466 U.S. at 694. Specifically, the petitioner must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. When the defendant has pleaded guilty, she “must show that there is a reasonable probability that, but for counsel's errors, [s]he would not have [done so] and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

1. Unauthorized Practice of Law

Ponceroff first contends that one of her appointed counsel was not an attorney and so “couldn't by law give [her] any legal advice or answer any of her questions” (Dkt. No 79 at 6). She is incorrect. The attorney in question is an active member of the West Virginia State Bar and an Assistant Federal Public Defender. She served as co-counsel for...