The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
MEMORANDUM DECISION AND ORDER
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.
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
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,
(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
(3) The presence of conflicting testimony calling
for an attorney's presentation of evidence and
(4) The capability of the pro se party to present the
(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
The Court must consider the potential merits of his
§ 2255 claims and whether Petitioner requires the expertise of counsel to
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 ...