United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
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.
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.
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.
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;
(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[.]
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.
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 ...