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United States v. Halstead

United States District Court, D. Nebraska

June 20, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL HALSTEAD, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge.

         This matter is before the Court on the Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (§ 2255 Motion), ECF No. 36. Defendant Michael Halstead has also submitted a Memorandum of Law in Support of his Motion, ECF No. 37, as well as an Application to Proceed in District Court without Prepaying Fees or Costs, ECF No. 38, and a Motion for Appointment of Counsel, ECF No. 40.

         Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires initial review of a § 2255 motion, and describes the initial review process:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         BACKGROUND

         Defendant Halstead pled guilty to Count I of a single count Indictment, charging him with receiving or attempting to receive child pornography, in violation of 18 U.S.C. § 2252A(a)(2). He was sentenced on July 10, 2017, to a term of 60 months incarceration, the statutory mandatory minimum term, to be followed by five years of supervised release. The sentence was consistent with Halstead's plea agreement, entered into pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). See ECF No. 27 at Page ID #52.

         Halstead now contends his retained counsel was ineffective, because he failed to raise an affirmative defense under 18 U.S.C. § 2252A(d)(1)-(2), which provides:

It shall be an affirmative defense to a charge of violating subsection (a)(5) that the defendant-
(1) possessed less than three images of child pornography; and
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy thereof-
(A) took reasonable steps to destroy each such image[.]

         Halstead asserts that he “never received more than three images, and the PSI is clear that no images were found on any device I owned or had access to. It is therefore a part of the official record that I deleted these images, as none were found.” ECF No. 36, Page ID #101.

         DISCUSSION

         To establish ineffective assistance of counsel, Halstead must satisfy both prongs of the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The performance prong requires a showing that counsel performed outside the wide range of reasonable professional assistance and made errors so serious that counsel failed to function as the kind of counsel guaranteed by the Sixth Amendment. Id. at 687-89. The prejudice prong requires a movant to demonstrate that seriously deficient performance of counsel prejudiced the defense. Id. at 687. “To establish prejudice, the defendant must demonstrate a ...


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