United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE
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.
BACKGROUND AND PLEADINGS
The Underlying Criminal Proceeding
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.
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. (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.)
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.)
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.
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.
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.
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.
This § 2255 Motion
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.)
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
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 ...