United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
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.
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”)).
October 12, 2016, Petitioner filed the pending motion to
vacate sentence pursuant to 28 U.S.C. § 2255. (ECF No.
43).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).
Government's Motion to Seal
Standard of Review
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.
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.
Motion to Vacate Sentence
Standard of Review
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
Ineffective Assistance of Counsel
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
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