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Halas v. United States

United States District Court, D. New Jersey

June 28, 2018

PETER HALAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          KEVIN MCNULTY UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner, Peter Halas, is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. For the following reasons, Mr. Halas's § 2255 motion will be denied.

         II. BACKGROUND AND PLEADINGS

         A. The Underlying Criminal Proceeding

         The Court of Appeals for the Third Circuit succinctly described the underlying circumstances as follows:

In June 2010, in an interview with FBI agents, Halas admitted to searching for child pornography and saving images to his hard drive. The agents searched Halas's home and, with his consent, seized his computer along with several compact disks and external hard drives. FBI officials eventually discovered almost 3, 000 images of child pornography.

United States v. Halas, 545 Fed.Appx. 176, 177 (3d Cir. 2013). A criminal complaint was filed against Mr. Halas on July 13, 2010, charging him with one count of knowing possession of child pornography, as defined by 18 U.S.C. § 2256(8), in violation of 18 U.S.C. § 2252A(a)(5)(B). United States v. Halas, Crim. No. 11-290 (D.N.J.), Compl., ECF No. 1. At an initial appearance, then-Magistrate Judge Madeline Cox Arleo assigned Assistant Federal Public Defender K. Anthony Thomas to represent Mr. Halas. Crim. No. 11-290, Order (July 13, 2012), ECF No. 3. A grand jury indicted Mr. Halas in April 2011 for the count charged in the complaint. Crim. No. 11-290, Indict., ECF No. 14.

         On January 23, 2012, Mr. Halas submitted an Application for Permission to Enter Plea of Guilty. Crim. No. 11-290, ECF No. 22. He appeared for a sentencing hearing before then-Magistrate Judge Patty Schwartz the same day. (See Ans., Ex., Tr. of Guilty Plea (Jan. 23, 2012), ECF No. 9-1.) Mr. Halas acknowledged, under oath, that he understood his rights as a criminal defendant and the rights he gave up by pleading guilty. (Id. at 6-9.) He further represented that he was not induced to plead guilty by any promises or threats and was pleading guilty because he was in fact guilty.[1] (Id. at 9-10.) Mr. Halas raised a question regarding mere possession v. knowing possession, and Judge Schwartz explained that an element of the crime that would have to be proven at trial would be that Mr. Halas knew he possessed child pornography. (Id. at 10.) Mr. Halas affirmatively responded to Judge Schwartz's subsequent question to confirm that he was, "in fact, guilty of the crime charged, that is the knowing possession of child pornography." (Id.)

         Mr. Halas subsequently admitted to various facts underlying the charges, including that "[a]s late as June 30, 2009, [he] store[d] computer images containing child pornography," that he stored more than three such images, that he knew that images he possessed contained depictions of minors engaged in sexually explicit conduct and posing in a sexually explicit manner, that he believed the images depicted actual children, that he possessed the images knowingly and voluntarily, and that he was guilty of the crime charged. (Id. at 18-20.) Mr. Halas confirmed that he understood the potential penalties that could be imposed, that he had discussed these with his counsel, and that the sentence would be at the discretion of the sentencing judge, with consideration for the United States Sentencing Guidelines. (Id. at 11-14.)

         Following the plea hearing, Judge Schwartz issued a Report and Recommendation finding, among other things, that Mr. Halas "fully understood" the charges, the consequences of his plea, and the rights waived by pleading guilty, that Mr. Halas "was fully competent and capable of entering an informed guilty pleas," that his "plea was free, knowing, and voluntary," and that "[t]here [was] a factual basis to support the plea of guilty." See Crim. No. 11-290, R. & R. (Jan. 23, 2012), ECF No. 24. No. party offered any objection to this Report and Recommendation. District Judge Faith S. Hochberg, to whom the case was then assigned, subsequently issued an Order adopting it. Crim. No. 11-290, Order (Feb. 8, 2012), ECF No. 25.

         On December 17, 2012, Mr. Halas appeared for a sentencing hearing before Judge Hochberg. See Crim. No. 11-290, Tr. of Proceedings (Dec. 17, 2012), ECF No. 46. Addressing an objection by Mr. Halas to inclusion of the results of an FBI-administered polygraph examination in the presentencing report, Judge Hochberg stated that she would not consider that result in any way for the sentencing, but that the result should remain in the report to help guide Mr. Halas's treatment. Id. at 3. Mr. Thomas proposed, as an alternative, removing the reference from the presentencing report itself, but including the polygraph report as an attachment, and Judge Hochberg accepted that proposal. Id. at 3-4.

         While expressing some apparent skepticism as to Mr. Halas's actual acceptance of responsibility, Judge Hochberg ultimately awarded a three-point reduction under the sentencing guidelines for that factor. See Id. at 8-15, 43-44. Mr. Thomas made an application for a downward variance based on the images' not containing sadomasochism, because his use of a computer in committing the seemingly ordinary circumstances of the crime, and the arbitrariness of the sentencing enhancement for persons who possess over 600 images of child pornography. See Id. at 15-24. Mr. Halas was given an opportunity to address the court. He primarily urged that the images had been downloaded in 1998 or 1999 and that he "almost forgot about them." Id. at 24-28. Considering these factors, Judge Hochberg denied the application for a variance, and sentenced Mr. Halas to 51 months of imprisonment, the lightest possible sentence within the applicable sentencing range, followed by five years of supervised release under conditions that included computer monitoring, mental health treatment, restricted contact with minors, and periodic polygraph testing. Id. at 37-49; see also Crim. No. 11-290, J. (Dec. 17, 2012), ECF No. 37.

         Mr. Halas appealed his sentence to the Third Circuit. See Halas, 545 Fed.Appx. 176. His attorney, Mr. Thomas, filed an Anders brief, asserting a lack of non-frivolous grounds for appeal, and the Third Circuit permitted him to withdraw his representation. Id. at 177. Mr. Halas filed a pro se brief, arguing that Judge Hochberg should have applied a downward departure based on the contents of a psychological report and, alternatively, that the failure to request such a downward departure constituted ineffective assistance of counsel. The Third Circuit held that it lacked jurisdiction to review discretionary sentencing departures, including failures to grant unrequested departures, and that ineffective-assistance-of-counsel arguments should be addressed upon collateral review. See Id. at 178-79. Mr. Halas further argued that the criminal charge should have been barred by the statute of limitations, as the subject images were downloaded in 1998 or 1999, but the Third Circuit found that Mr. Halas had waived his statute-of-1 imitations argument by entering into an unconditional guilty plea. Id. at 179.

         B. This § 2255 Motion

         On April 9, 2015, Mr. Halas, acting pro se, filed a § 2255 motion to vacate, set aside, or correct his sentence. (ECF No. 1.) Judge Hochberg having retired, the matter was reassigned to me. I initially administratively terminated the proceeding without prejudice because Mr. Halas's motion was not submitted on the proper form, as required by Local Civil Rule 81.2(a). (Mem. & Order (Apr. 21, 2015), ECF No. 2.) Shortly thereafter Mr. Halas filed a new § 2255 motion, which is now the operative pleading. (ECF No. 3.) It claims three grounds for relief, each framed as a claim of ineffective assistance of counsel. (See id.)

         First, Mr. Halas contends that Mr. Thomas provided ineffective assistance by failing to sufficiently raise alleged Fourth Amendment violations related to the initial discovery of child pornography on Mr. Halas's computer. (Id. at 5.) Specifically, Mr. Halas alleges that "a person working for or with the FBI, a de facto agent, came into the Petitioner's home, searched his computer without his knowledge ... and reported him to the FBI." (Id. (ellipsis in original).) Mr. Halas asserts that the government "should have provided a copy of the email that was used to inform them about the Petitioner and also should have turned over dates/times of other cases this person called in and provided other emails used for reporting people." (Id.) Mr. Halas seems to e referring to the computer technician he asked to fix his computer. That technician, he states or implies, may have engaged in a pattern of reporting possession of child pornography, thus rendering him a de facto government agent. As such, he would allegedly have been subject to Fourth Amendment restrictions on searches and seizures. (See id.; see also ECF No. 1 at 2.)[2]

         Second, Mr. Halas argues that Mr. Thomas was ineffective in connection with arguments concerning the dates that the child pornography was downloaded. (ECF No. 3 at 6.) The argument seems to be, at least in part, that Mr. Thomas failed to argue that the charges were brought after the expiration of the applicable statute of limitations. Mr. Halas also contends that his possession should have been considered "constructive" rather than knowing; his possession, he says, was purely passive, and "in effect, there was coercion and manipulation into pleading to ...


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