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United States v. Solomon

United States District Court, E.D. Michigan, Southern Division

April 27, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
VINCENT JOSEPH SOLOMON, Defendant/Petitioner.

          MEMORANDUM AND ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          AVERN COHN UNITED STATES DISTRICT JUDGE. [1]

         I. Introduction

         This is a criminal case. Defendant/Petitioner Vincent Joseph Solomon (Petitioner), proceeding pro se, plead guilty to possessing and receiving child pornography, in violation of 18 U.S.C.§ 2252A(a)(2) and 18 U.S.C. § 2252A(a)(5)(B).[2]Petitioner received a below-guideline sentence of 120 months and one-day. His conviction and sentence were affirmed on appeal.

         Before the Court is Petitioner's motion under 28 U.S.C. § 2255 in which he claims (1) factual errors in his presentence report, (2) improper waiver of objections to the presentence report, (3) improper bond condition, (4) ineffective assistance of counsel, and (5) failure of the government to file a motion for downward departure. The government contends that the motion should be denied because (1) it seeks to re-litigate several issues that were raised and considered on direct appeal, (2) other issues are procedurally defaulted, and (3) the claims, particularly ineffective assistance of counsel, lack merit.

         For the reasons that follow, the motion will be denied.[3]

         II. Background

         At his plea hearing, Petitioner acknowledged that he was satisfied with his attorney's representation. (Doc. 49, Plea Hearing Tr., Page ID 331). Petitioner also acknowledged that he did not execute a Rule 11 plea agreement because, despite months of negotiations, the parties could not come to an agreement regarding forfeiture. Id. Page ID 324.

         At sentencing, [4] Petitioner admitted his guilt. During the sentencing hearing, the parties also acknowledged that all guideline disputes had been resolved. (Doc. 50, Sentencing Tr., Page ID 356-57). Thereafter, the Court explained that views on child pornography were well known and had “very serious concerns about the [child pornography guideline] enhancements.” Id. Page ID 361, 394. The Court calculated Petitioner's base offense level as 22 with the following enhancements: two levels for material involving prepubescent minors or those under the age of twelve, two levels because the offense involved distribution through peer-to-peer file sharing, four levels for material portraying sadistic or masochistic conduct or other depictions of violence, and five levels because the offense involved 600 or more images.[5] After argument, the Court did not apply the two-level enhancement for the “use of a computer.” With a three-level reduction of acceptance of responsibility, Petitioner's total offense level was 32. With a criminal history of category I, the Court calculated Petitioner's guideline range of 121 to 151 months.[6]

         The Court then addressed Petitioner's non-guideline objections, rejecting them. Ultimately, as noted above, Petitioner received a 120 month and 1 day sentence. Petitioner appealed and was appointed new counsel on appeal. Appellate counsel filed a brief and a motion to withdraw under Anders v. California, 386 U.S. 738 (1967). Counsel raised the following claims: (1) whether Petitioner's plea was voluntary, (2) whether trial counsel was ineffective in not objecting to a bond condition, not pursuing at the sentencing hearing objections that Petitioner himself had filed, and not objecting to factual errors in the presentence report as to the number of images, and (3) whether the government improperly refused to file a motion for downward departure based on substantial assistance. The Court of Appeals for the Sixth Circuit rejected each claim, affirming Petitioner's conviction and sentence. United States v. Solomon, No. 14-1924 (6th Cir. Mar. 10, 2015).

         Petitioner subsequently filed the instant motion.

         III. Legal Standard

         28 U.S.C. § 2255:

A prisoner in custody under a sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence imposed was in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence.

28 U.S.C. § 2255(a). To prevail on a § 2255 motion, “a petitioner must demonstrate the existence of an error of constitutional magnitude which has a substantial and injurious effect or influence on the guilty plea or the jury's verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005). A movant can prevail on a § 2255 motion alleging non-constitutional error only by establishing a “fundamental defect which inherently results in a complete miscarriage of justice, or an ...


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