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April 20, 2004.


The opinion of the court was delivered by: LAWRENCE KAHN, District Judge


Petitioner Maurice Wayne Jones ("Petitioner" or "Jones"), now moves the Court for the following relief: (1) pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence, (Dkt. No. 29), and (2) for the appointment of counsel to pursue his § 2255 motion, (Dkt. No. 42). The United States of America, as Respondent, opposes both of these motions. For the following reasons, both motions are denied.


 (a) Facts*fn1

  In 1997, Mr. Jones, age 41, resided in North Carolina. He met a minor, then age 15 who lived in Plattsburgh, New York, in an America On Line teen chat room. The two communicated over the internet and then began speaking on the telephone with Mr. Jones indicating that he would like to come to Plattsburgh to have sex with this individual. On or about August 31, 1997, Jones traveled from North Carolina to Plattsburgh to see the victim, who he knew to be under the age of 16. He stayed for five days, and the two met a number of times in his hotel room.

  While visiting the Plattsburgh area, Jones brought his computer, which contained a number of images that he showed to his victim, including one of a minor involved in sexually explicit conduct. When authorities searched his home in July 1998, a computer and disks were seized that contained a number of images of prepubescent minors engaged in sexually explicit conduct.

 (b) Procedural History

  On June 2, 1999, this Court accepted Jones' guilty plea on three counts and entered judgment of conviction. On October 28, 1999, the Court sentenced Petitioner based upon his guilty plea. First, Petitioner pled guilty to Count 1 of the Second Superseding Indictment ("SSI") (98-CR-334), which charged, under 18 U.S.C. § 2423(b), travel in interstate commerce with intent to engage in a sexual act with a juvenile, for which Petitioner received a sentence of 120 months. Second, Petitioner pled guilty to Count 5 of the SSI, which charged, in violation of 18 U.S.C. § 2252(A)(a)(1), transportation of child pornography, for which he was sentenced to 180 months. These two sentences imposed for the violations charged in the SSI were to run concurrently, thus providing for a 180 month sentence under these counts. Finally, Petitioner pled guilty to Count 1 of the Information (99-CR-272), which charged, in violation of 18 U.S.C. § 2252(a)(4)(B), possession of child pornography, for which he was sentenced to 30 months. This 30 month sentence imposed under Count 1 of the Information was to run consecutively to the two SSI sentences. Petitioner was therefore sentenced to 210 months imprisonment, in addition to three years of supervised release, and a $300 special assessment.

  Jones waived his right to appeal the conviction but did not waive his right to appeal the sentence imposed. (Dkt. No. 32, Exhibit 4: Plea Agreement at ¶ 10.1). He appealed the imposition of two sentencing enhancements to the Second Circuit, which affirmed the Court's decision to impose them. Jones. 2000 U.S. App. LEXIS 6316 (unpublished opinion).

  Petitioner now moves to vacate his sentence pursuant to 28 U.S.C. § 2255. Specifically, his motion seeks relief on four grounds: (1) as required by Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), the facts supporting sentencing enhancements that exposed Petitioner to a sentence beyond the statutory maximum must have been submitted to a jury for a determination of guilt, (2) Petitioner's guilty plea was made involuntarily, unintelligently, and unknowingly in violation of his Fifth Amendment rights, (3) Petitioner was deprived of effective assistance in violation of his Sixth Amendment rights, and (4) the Supreme Court's determination in Ashcroft v. Free Speech Coalition. 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), that the Child Pornography Prevention Act of 1996 (CPPA) was unconstitutional, in part, renders Petitioner's convictions under the same unconstitutional.


 (a) Petitioner's motion for appointment of counsel

  Petitioner first moves the Court for appointment of counsel to represent him in the motion to set aside, vacate, or amend his sentence. (Dkt. No. 42). The government opposes this motion. (Dkt. No. 43).

  It is well-settled, as Petitioner acknowledges, that he has no constitutional right to counsel to collaterally attack his conviction. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); (Dkt. No. 50, Petitioner's Reply Mem. at 1-2). Rather, Petitioner moves for appointment of counsel under 18 U.S.C. § 3006A and Local Rule 83.3(c) of the Northern District of New York.

  § 3006A(a)(2) allows a district judge to appoint counsel for a § 2255 petitioner who cannot afford representation on his own when "the interests of justice so require". Local Rule 83.3(c) provides factors to consider in determining whether counsel shall be appointed, which include:
(1) The potential merits of the claims as set forth in the pleading;
(2) The nature and complexity of the action, both factual and legal, including the need for factual investigation;
(3) The presence of conflicting testimony calling for an attorney's presentation of evidence and cross-examination;
(4) The capability of the pro se party to present the case;
(5) The inability of the pro se party to retain an attorney by other means;
(6) The degree to which the interests of justice shall be served by appointment of an attorney, including the benefit the Court shall derive from the assistance of an appointed attorney;
(7) Any other factors the Court deems appropriate.
  As the Court is not ordering a hearing on Petitioner's § 2255 motion, Petitioner has no need for counsel to assist him in presenting evidence and examining witnesses, nor is there any need for factual investigation.*fn2 The Court must consider the potential merits of his § 2255 claims and whether Petitioner requires the expertise of counsel to address them.

  In the present case, Petitioner filed his amended motion and nineteen months later filed for appointment of counsel. At that point, Petitioner had filed his motion and memoranda of law on the merits of his petition. The Court has reviewed the materials he submitted. As will be discussed below, the Court finds no merit in his claims. Petitioner thoroughly briefed the issues he now raises. Therefore, the assistance of counsel would not improve his chances to prevail where all his claims are sufficiently argued, but yet still meritless. This point is dispositive, and the Court will not appoint Jones counsel.

 (b) Standard of Review for Motion under § 2255

  As one court noted, the collateral attack on a guilty plea under § 2255 is "quite stringent" because it is "presume[d] that the proceedings which led to defendant's conviction were correct." United States v. Moss. 137 F. Supp.2d 1249, 1256 (D.Kan. 2001). A collateral attack such as the one Petitioner has now brought has long been subjected to a high standard of review:
A § 2255 movant can successfully challenge a guilty plea conviction based on a rule 11 violation only by establishing that the violation constituted a "constitutional or jurisdictional" error, United States v. Timmreck, 441 U.S. 780, 783, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979) (citing Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)), or by showing that the error resulted in a "`complete miscarriage of justice'" or in a proceeding "`inconsistent with the rudimentary demands of fair procedure.'" Timmreck, 441 U.S. at 784 (quoting Hill, 368 U.S. at 428). The movant should also demonstrate that he was prejudiced by ...

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