United States v. Daughenbaugh

UNITED STATES OF AMERICA v. EDWARD LEE DAUGHENBAUGH (01)

Nos. 06-cr-20060-01-01, 18-cr-00132-01-01

United States District Court, W.D. Louisiana, Lake Charles Division

August 5, 2021

KAY MAGISTRATE JUDGE

RULING AND ORDER

DEE D DRELL, JUDGE

Before the court is a motion to vacate sentence filed pro se by defendant Edward Lee Daughenbaugh (“Defendant” or “Daughenbaugh”) pursuant to 18 U.S.C. § 2255. (Doc. 89 in 06-cr-20060; Doc. 37 in 18-cr-00132). For the following reasons, the motion is DENIED.

I. BACKGROUND

A. Criminal Activity and Procedural Posture

In 2006, Daughenbaugh plead guilty to possession of child pornography and was sentenced to eighty-four (84) months imprisonment and a lifetime term of supervised release. In June 2012, Daughenbaugh entered into his first term of supervised release. In January 2016, Officer Cypher, Daughenbaugh's probation officer, filed a petition for a revocation hearing alleging that Daughenbaugh had violated the terms of his supervised release by having unsupervised contact with minor children. Officer Cypher's petition referenced specifically children ages two and four living in Daughenbaugh's home on January 14, 2016. Daughenbaugh admitted to the violation, his term of supervised release was revoked, and he was sentenced to one year and one day of imprisonment and thereafter a lifetime term of supervised release.

In February 2017, Daughenbaugh entered his second term of supervised release. In May 2018, Officer Cypher filed another petition for a revocation hearing alleging Daughenbaugh was in possession of child pornography and was in violation of the terms of his supervised release by possessing a cellular telephone (“cell phone”) with internet capabilities and by possessing viewable images depicting sexually explicit conduct. Officer Cypher attested to Daughenbaugh's admission of the existence of child pornography on the cell phone after Officer Cypher inquired. Subsequent forensic analysis of the cell phone confirmed the existence of child pornography on Daughenbaugh's cell phone.

Daughenbaugh was indicted again for possession of child pornography (“2018 charges, ” Docket No. 2D8-CR-132). He plead not guilty during the initial appearance and arraignment. Subsequently, he decided to plead guilty. During a change of plea hearing on July 26, 2018, Special Agent Eric Link of Homeland Security Investigations testified to the events that transpired between Officer Cypher and Daughenbaugh and to the results of forensic analysis. After a thorough colloquy between Daughenbaugh and the Court as to voluntariness and after Daughenbaugh affirmed his understanding of and agreed to having committed each element as provided in the plea agreement and corroborated by Officer Link's testimony, Daughenbaugh's guilty plea was accepted by the court.

We scheduled the sentencing hearing on the 2018 charge and the pending revocation hearing back to back on October 31, 2018, conducting the sentencing hearing first. There, Daughenbaugh was sentenced to serve one hundred and twenty (120) months imprisonment for the 2018 charge. In the revocation hearing, he was sentenced to serve sixty (60) months consecutively to the one hundred and twenty month sentence for the 2018 charges. On appeal to the Fifth Circuit, Daughenbaugh challenged the reasonableness of consecutive sentences, but the Fifth Circuit affirmed the announced sentence. United States v. Daughenbaugh, 793 Fed.Appx. 237, 241 (5th Cir. 2019) (“Daughenbaugh's conclusory assertion that the resulting combined 15-year sentence is greater than necessary to satisfy the sentencing goals of § 3553(a) is insufficient to rebut the presumption of reasonableness attached to his within-guidelines revocation sentence.”).

B. Instant Motion

Daughenbaugh filed identical motions here and in Docket No. 2D8-CR-132. The identical motions pertain to both the 2018 charge and the revocation proceeding. Because the revocation proceeding revoking Daughenbaugh's second term of supervised release hinges on the 2018 charge, we review both for a consolidated analysis.

Regarding the 2018 charge, Daughenbaugh claims his counsel was ineffective because she failed to assert Daughenbaugh's (A) Fourth Amendment rights against the search of his person and the contents of his cell phone and (B) Due Process rights during the change of plea hearing. Moreover, he claims (C) his guilty plea to the 2018 charge was involuntary because it was induced by his counsel's advice that the government had a very strong case. Regarding the revocation proceeding, Daughenbaugh claims (D) the court erred in proceeding (and, oddly, counsel was ineffective for allowing the court to proceed) in revoking the second term of supervised release without obtaining a guilty plea directly from Daughenbaugh for violating the terms of his supervised release.^[1]

II. LAW

There are four grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States! (2) the court was without jurisdiction to impose the sentence! (3) the sentence exceeds the statutory maximum sentence! or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255! United States v. Cates, 952 F.2d 149, 151 (5th Cir.), cert, den., 504 U.S. 962 (1992). The scope of relief under § 2255 is consistent with that of the writ of habeas corpus. See Cates, 952 F.2d at 151! see also United States v, Placente, 81 F.3d 555, 558 (5th Cir. 1996).

Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. Nonconstitutional claims that could have been raised on direct appeal, but were not, may not be asserted in a collateral proceeding. See United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992); United States v. Ressler, 54 F.3d 257, 259 (5th Cir. 1995). Moreover, it is settled in this circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 motions. See United States v. Kalish, 780 F.2d 506, 508 (5th Cir.), cert, den., 476 U.S. 1118 (1986); United States v, Fields, 761 F.3d 443, 466, 482 (5th Cir. 2014), cert, den., 135 S.Ct. 2803 (U.S. 2015); United States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994).

A collateral challenge may not do as a substitute for an appeal. United States v. Frady, 456 U.S. 152, 165 (1982). After conviction and exhaustion or waiver of any right to appeal, the federal courts are entitled to presume that the defendant stands fairly and finally convicted. See United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991), cert, den., 502 U.S. 1076 (1992). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 622, (1998) (internal citations omitted). A claim may not be reviewed under § 2255 absent a showing of cause and prejudice or actual innocence. United States v. Cooper, 548 Fed.Appx. 114, 116 (5th Cir. 2013); United States v. Hicks, 945 F.2d 107, 108 (5th Cir. 1991).

Absent exceptional circumstances, establishment of ineffective assistance of counsel satisfies cause and prejudice. United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995). In a motion to vacate a sentence for ineffective assistance of counsel, the defendant has the burden of proof. See United States v. Chavez, 193 F.3d 375, 378 (5th Cir. 1999) (citing Clark v. Collins, 19 F.3d 959, 964 (5th Cir. 1994), cert, den., 513 U.S. 966 (1994)). To prevail on his motion, Defendant must satisfy the two™ pronged test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984): (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defendant.

Regarding the first prong of Strickland, a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel's perspective at the time. See Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir. 2000), cert, den., 532 U.S. 915 (2001) (citing Strickland, 466 U.S. at 689). Thus, the court's scrutiny of counsel's performance is highly deferential. The court must be particularly wary of arguments that essentially come down to a matter of degree, such as whether counsel investigated enough or presented enough mitigating evidence. Those questions are even less susceptible to judicial second-guessing. See Dowthitt, 230 F.3d at 743 (citing Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir. 1999)).

Regarding the second prong of Strickland, a defendant is prejudiced if there is a reasonable probability that, “but for counsel's unprofessional errors, the results of the proceedings would have been different.” Strickland, 466 U.S. at 689. To make that determination, the court must examine the proceedings as a whole, giving due consideration to the weight of the evidence supporting the verdict and evaluating the alleged failings of counsel in that total setting. The court does not assess any alleged error in isolation.

However “conclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding.” Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (citing Ross v. Estelle, 694 F, 2d 1008, 1012 (5th Cir. 1983)). "One claiming ineffective assistance of counsel must identify specific acts or omissions! general statements and conclusionary...