Koehn v. United States

• Decision Date: 25 October 2018
• Docket Number: 10-CR-264S,15-CV-984S
• Parties: JOSEPH A. KOEHN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of New York

JOSEPH A. KOEHN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

15-CV-984S

10-CR-264S

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

October 25, 2018

DECISION AND ORDER

I. INTRODUCTION

Presently before this Court is pro se Petitioner Joseph A. Koehn's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255, and his Motion to Expand the Record. For the reasons discussed below, Koehn's motions are denied.

II. BACKGROUND

On April 3, 2012, Koehn appeared before this Court and pleaded guilty to one count of attempted production of child pornography in violation of 18 U.S.C. § 2251(a) & (e), and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). (Docket Nos. 85 (Plea Agreement), 113 (Tr. of Plea Allocution ("Tr."))). In the plea agreement, Koehn agreed that, for the attempted production of child pornography charge, the minimum possible sentence by that statute was a term of imprisonment of fifteen years and a maximum of thirty years, a fine of $250,000, a mandatory $100 special penalty assessment, and a term of supervised release of at least five years and up to life; and for the possession of child pornography, a maximum term of ten years' imprisonment, a fine of $250,000, a mandatory $100 special penalty assessment, and a term of supervised release of at least five years and up to life. (Plea Agreement, Docket No. 85, ¶ 1(a), (b))

At the plea allocution, the Court confirmed with Koehn that he understood the charges to which he was pleading guilty, the sentence he was facing and how the sentencing range was calculated, and the terms of supervised release. (Tr. at 7-9) Koehn also confirmed that he understood that he had the option to plead—guilty or not guilty—to either, both, or neither charges:

The Court: Okay. Now, Mr. Koehn, you can plead to either or both charges, guilty or not guilty. You understand that, correct?

Defendant: Yes.

(Tr. at 19)

The Court also confirmed that Koehn understood he had the option to proceed to trial, and if so, what the Government would be required to prove:

The Court: You have the right to demand a trial . . . . [t]he government would have to prove each of the charges and essential elements beyond a reasonable doubt . . . [e]ach one of the [paragraphs in the plea agreement] apply to a specific count. And they detail what at least part of the evidence would be at trial. Did you go over that carefully?

Defendant: Yes.

The Court: And is it accurate?

Defendant: Yes.

The Court: And did you do what's charged there?

Defendant: Yes.

. . . .

Government: Judge, if this case went to trial, the government would call witnesses from the Buffalo Police Department and the FBI who would testify about the written statements that the defendant made making admissions to these crimes. We would enter into evidence computer chats and cell phone chats involved in this case. We would callwitnesses from - possibly from companies who would testify about evidence that was found forensically through his computer as well.

The Court: And that would be in addition to what's set out here?

Government: Yes, your Honor.

The Court: Okay.

Government: And, Judge, there's just one more thing. We would also enter into evidence the child pornography that was found on his computer.

The Court: Okay. Well, let's move from there - and you told me that's accurate, right?

Defendant: Yes.

(Tr. at 10, 12-13)

After accepting Koehn's guilty plea, the Court confirmed with Koehn that his plea was voluntary:

The Court: Is it a fair statement to say that with respect to each guilty plea and everything you've done here today [,] it's been voluntary?

Defendant: Yes.

(Tr. at 19-20)

Koehn was sentenced on October 15, 2013, to a term of incarceration of 20 years on the attempted production of child pornography count, and 10 years on the possession of child pornography count, to run concurrently. (Docket No. 114 at 44) Koehn was also sentenced to 10 years of supervised release on each count, to run concurrently. (Id.) The term of imprisonment was less than the guideline sentencing range set forth in the plea agreement, and the term of supervised released was within the range set forth in the plea agreement. (Id.; Docket 85 ¶ 23) At his sentencing hearing, Koehn made a statement acknowledging his wrongdoing: "I'm [ ] truly sorry for what I did. I didn't meanfor anybody to get hurt. It was just [a] conversation that got way out of control"; "You know, I understand that there's consequences for what I did and, you know, and everything. But, you know, rather than that, I don't know really what else to say besides I'm truly sorry, you know." (Docket No. 114 at 27, 31)

Koehn timely appealed his conviction. (Docket No. 108, Notice of Appeal, 10/25/2013) On October 14, 2014, the Second Circuit dismissed Koehn's appeal and affirmed his conviction and sentence. See United States v. Koehn, 580 F. App'x 46 (2d Cir. 2014) (summary order). Koehn subsequently timely filed the instant motion to vacate his sentence pursuant to 28 U.S.C. § 2255 on November 9, 2015. (Docket No. 127 ("2255 Mot.")) Koehn has also filed a motion to expand the record, requesting that the Court consider four affidavits attached to that motion. (Docket No. 128) The Government responded to Koehn's petition (Docket No. 131).

III. DISCUSSION

A. Koehn's § 2255 Motion

Twenty-eight U.S.C. § 2255 allows federal prisoners to challenge the constitutionality of their sentences. That section provides, in pertinent part, that:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). The Second Circuit has held that a "collateral attack on a final judgment in a criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutesa fundamental defect which inherently results in complete miscarriage of justice." Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996) (per curiam) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (internal quotation marks omitted)). The petitioner bears the burden of proving such a fundamental defect by a preponderance of the evidence. See Galviz Zapata v. United States, 431 F.3d 395, 399 (2d Cir. 2005) (citing Williams v. United States, 481 F.2d 339, 346 (2d Cir. 1973)). Moreover, because Koehn is pro se, the Court must "liberally construe" his submissions "to raise the strongest arguments they suggest." Harris v. Miller, 818 F.3d 49, 56 (2d Cir. 2016) (internal citation and quotation marks omitted).

Liberally construed, Koehn argues that (1) he is actually innocent of the attempted production charge; and (2) his guilty plea was not knowing and voluntary because counsel: coerced him into pleading guilty to the attempted production charge; incorrectly told Koehn that he could not plead guilty to the possession charge while simultaneously going to trial on the production charge; "exaggerated the maximum sentence [Koehn] would receive if he went to trial"—life imprisonment—and "falsif[ied] the minimum sentence he would receive if he signed a plea agreement"; failed to advise him of the elements the Government would need to prove at trial; and failed to advise him that he could plead guilty in open court.

B. Waiver

As indicated above, Koehn "knowingly waive[d] [his] right to appeal and collaterally attack any component of a sentence imposed by the Court" within the Guidelines range. (Plea Agreement, ¶ 23.) A collateral attack waiver is "presumptively enforceable." Sanford v. United States, 841 F.3d 578, 580 (2d Cir. 2016) (internal citation, quotationmarks, and alterations omitted). A court may only disregard a collateral-attack waiver in a few narrow circumstances, including where "the waiver was not made knowingly, voluntarily, and competently." Id.; United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011) ("We have repeatedly upheld the validity of appeal waivers if they are knowingly, voluntarily, and competently provided by the defendant." (internal quotation marks, citation, and alterations omitted)). "An enforceable waiver bars claims based on grounds that arose after, as well as before, the [plea] agreement was signed." Muniz v. United States, 360 F. Supp. 2d 574, 577 (S.D.N.Y. 2005).

Here, Koehn's sentence for imprisonment was less than the guideline sentencing range set forth in the plea agreement, and the term of supervised released was within the range set forth in the plea agreement. (Docket 85 ¶ 23) Consequently, Koehn's waiver of rights is enforceable.

C. Actual Innocence

First, Petitioner asserts that he is actually innocent of the attempted production charge to which he plead guilty. "[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass" when his habeas claim is otherwise subject to dismissal by reason of "expiration of the statute of limitations." McQuiggin v. Perkins, 569 U.S. 383, 133 S. Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013). Under this exception, "a credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief." Id. at 392; cf. Rivas v. Fischer, 687 F.3d 514, 517-18 (2d Cir. 2012) (observing that "[t]he Supreme Court has recognized that a 'credible' and 'compelling' claim of actual innocence may provide a 'gateway' through other procedural barriers to habeas relief").

The actual innocence exception is "demanding and permits review only in the extraordinary case." House v. Bell, ...