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Lewandowski v. United States

United States District Court, D. Maryland

August 10, 2018

EUGENE LEWANDOWSKI
v.
UNITED STATES OF AMERICA

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE

         Presently pending and ready for resolution are the motion to vacate sentence filed by Petitioner Eugene Lewandowski (“Petitioner”) (ECF No. 43) and the government's motion to seal its response in opposition (ECF No. 48). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to vacate sentence will be denied and the motion to seal will be denied in part.

         I. Background

         On July 15, 2014, pursuant to a plea agreement, Petitioner pled guilty to the charges of sexual exploitation of a minor for the purpose of child pornography (“Count 1”) and transportation of child pornography (“Count 5”). Petitioner was sentenced to 360 months on Count 1 and a concurrent term of 240 months on Count 5. Petitioner appealed to the United States Court of Appeals for the Fourth Circuit, which dismissed the appeal on July 16, 2015, because Petitioner “knowingly and voluntarily waived his right to appeal and . . . the issues [Petitioner sought] to raise on appeal f[e]ll squarely within the compass of his waiver of appellate rights.” (ECF No. 39). Petitioner did not file a petition for writ of certiorari with the Supreme Court of the United States. Accordingly, Petitioner's convictions became final on October 14, 2015. See United States v. Sosa, 364 F.3d 507, 509 (4th Cir. 2004) (stating that because the petitioner did not file a petition for writ of certiorari in the Supreme Court, his conviction became “final” for the purpose of § 2255's one year statute of limitations ninety days after the court dismissed his direct appeal (citing Clay v. United States, 537 U.S. 522, 525 (2003) (holding that “a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction”)).

         On October 12, 2016, Petitioner filed the pending motion to vacate sentence pursuant to 28 U.S.C. § 2255. (ECF No. 43).[1]The government was directed to respond and did so on January 12, 2017. (ECF No. 49). The government also filed a motion to seal its response. (ECF No. 48).

         II. Government's Motion to Seal

         A. Standard of Review

         A motion to seal must comply with Local Rule 105.11 (D.Md. 2016), which provides that “[a]ny motion seeking the sealing of pleadings, motions, exhibits or other papers to be filed in the Court record shall include (a) proposed reasons supported by specific factual representations to justify the sealing and (b) an explanation why alternatives to sealing would not provide sufficient protections.” This rule endeavors to protect the common law right to inspect and copy judicial records and documents, Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978), while recognizing that competing interests sometimes outweigh the public's right of access, In re Knight Publ'g Co., 743 F.2d 231, 235 (4th Cir. 1984). Before sealing any documents, the court must provide the non-moving party with notice of the request to seal and an opportunity to object. Id. at 234. This notice requirement may be satisfied by docketing the motion “reasonably in advance of deciding the issue.” Id. at 235. Finally, the court should consider less drastic alternatives to sealing, such as filing redacted versions of the documents. If the court decides that sealing is appropriate, it should also provide reasons, supported by specific factual findings, for its decision to seal and for rejecting alternatives. Id.

         B. Analysis

         The government filed a motion to seal its response in opposition to Petitioner's motion to vacate sentence. (ECF No. 48). The government states that because it cites to its sentencing memorandum which was filed under seal and 18 U.S.C. § 3509(d)(2) provides that it must file any papers that disclose the name or other information concerning a child under seal, the response in opposition should remain under seal. The government does not explain why redactions or other less restrictive alternatives to sealing would not protect the sensitive information, as required by Local Rule 105.11. Additionally, § 3509(d)(2) provides that any person who files a paper that discloses the name of or any information concerning a child must “submit to the clerk of the court - (A) the complete paper to be kept under seal; and (B) the paper with the portions of it that disclose the name of or other information concerning a child redacted, to be placed in the public record.” (emphasis added). Accordingly, the government will be ordered to redact appropriate information from its response and file the redacted document within fourteen days. The original document will remain under seal.

         III. Motion to Vacate Sentence

         A. Standard of Review

         To be eligible for relief under § 2255, a petitioner must show, by a preponderance of the evidence, that his “sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). If the § 2255 motion, along with the files and records of the case, conclusively shows that Petitioner is not entitled to relief, a hearing on the motion is unnecessary and the claims raised in the motion may be dismissed summarily. § 2255(b). If Petitioner makes this showing, “the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id.

         B. Ineffective Assistance of Counsel

         Petitioner argues that his defense counsel was ineffective at sentencing because counsel failed to (1) defend against the government's argument that Petitioner poses a significant risk for recidivism and (2) object to various “unconstitutional and unreasonable” probation terms.

         In a motion to vacate pursuant to 28 U.S.C. § 2255 based on ineffective assistance of counsel, “[t]he challenger's burden is to show ‘that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.'” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). When considering a claim of deficient performance, courts must evaluate the conduct from counsel's perspective at the time. See Strickland, 466 U.S. at 690. “The question is whether an attorney's representation amounted to incompetence under ‘prevailing professional norms,' not whether it deviated from best practices or most common custom.” Id. at 105 (quoting Strickland, 466 U.S. at 190). In other words, “[f]or counsel's performance to be constitutionally ineffective, it must have been completely unreasonable, not merely wrong.” Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). Furthermore, a determination need not be made concerning the attorney's performance if it ...


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