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Livingston v. United States

United States District Court, D. New Jersey

November 18, 2019

TIMOTHY LIVINGSTON, Petitioner,
v.
UNITED STATES, Respondent.

          OPINION

          WILLIAM J. MARTINI, U.S.D.J.

         This matter comes before the Court on Petitioner Timothy Livingston's ("Petitioner") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 because he received ineffective assistance of counsel in violation of the Sixth Amendment. ECF No. 1 ("Motion"). For the reasons set forth below, the Motion is DENIED.

         I. BACKGROUND

         On December 11, 2015, the United States Attorney's Office for the District of New Jersey charged Petitioner in a three-count indictment. ECF No. 1, 15-cr-636. On July 8, 2016, Petitioner was charged in a six-count superseding indictment. ECF No. 35, 15-cr-636 ("Superseding Indictment"). On October 27, 2016, Petitioner pled guilty to counts one, two, and six of the Superseding Indictment. ECF No. 53, 15-cr-636. Count one charged Petitioner with conspiracy to commit an offense or defraud the United States in violation of 18 U.S.C. § 371. Count two charged Petitioner with conspiracy to commit fraud and related activity in connection with electronic mail, in violation of 18 U.S.C. § 1037(a)(1) & (3)-(4), (b)(2)(A) & (C)-(E). Count six charged Petitioner with aggravated identity theft, in violation of 18 U.S.C. § 1028(a)(1) & (2). At the plea hearing, Petitioner admitted to the following facts:

• He was "a member of a conspiracy to transmit multiple unlawful commercial electronic mail messages commonly referred to as Spam."
• He agreed with "Tomasz Chmielarz to use access credentials for email accounts belonging to customers of Corporate Victim No. 1, a telecommunications company, without the authorization of Corporate Victim No. 1 or its customers." He did so "with the intent to defraud, using a computer program Chmielarz had created" and he did, "in fact, obtain the credentials for these accounts" and "access the accounts without authorization, using that program with the intent to defraud."
• He agreed with Chmielarz to, and in fact did, "send commands to these accounts to transmit Spam for private financial gain." "[B]y using these accounts to transmit Spam, the integrity or availability of data was impaired in the accounts of customers of Corporate Victim No. 1" and Petitioner "obtained something of value worth $1, 000 or more during a one-year period, not including the use of Corporate Victim No. 1 's servers" and "caused loss to one or more persons during any one-year period, aggregating in at least $5, 000 in value."
• He agreed with Chmielarz to, and in fact did, "transmit Spam by exploiting vulnerabilities in a website owned by Corporate Victim No. 2, [a technology and consulting company headquartered in New York, ] using another computer program Chmielarz had written." He "did so in a manner that would impair the ability of a recipient of the message ... or a law enforcement agent to identify, locate or respond to a person who initiated the electronic mail message, or to investigate the alleged violation."
• Petitioner used "proxy servers to remain anonymous, hide the true origin of the Spam, and evade anti-span filters and other Spam-blocking techniques." "[T]he header information in the Spam . . . was altered or concealed in a manner that would impair the ability of a recipient of the message ... or law enforcement agency to identify, locate or respond to a person who initiated the electronic mail message or to investigate the alleged violation."
• He took the above-described actions "knowingly, willfully and voluntarily," and plead guilty "voluntarily and of [his] own free will because [he is], in fact, guilty."

ECF No. 90 at 16-20, 15-cr-636 ("Hearing Transcript"). Based on the above-described facts and Petitioner's answers in his Form 11 questionnaire, the Court found Petitioner "capable of entering an informed plea" and "aware of the nature of the charges and consequences of the plea." Id. at 21. The Court thus accepted Petitioner's guilty plea. Id.

         On February 14, 2017, Petitioner was sentenced pursuant to a Rule 11 plea agreement to forty-eight months imprisonment and one year of supervised release. ECF Nos. 60, 82, 15-cr-636. The same day, the Court entered a judgment against Petitioner. ECF Nos. 61, 15-cr-636. Without changing the sentence imposed, the Court amended its judgement several times before entering a Second Corrected Amended Judgment on March 23, 2017. ECF No. 76, 15-cr-636. Petitioner did not appeal.

         II. PETITION AND OPPOSITION

         On May 15, 2019, Petitioner filed his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner "contends he was misled by his counsel into believing that an erroneous [l]oss [e]nhancement was appropriate," thus violating his Sixth Amendment rights. Mot. at 2. Petitioner asserts that throughout plea negotiations, his attorney ("Defense Counsel") "advised him that his Offense Level would be enhanced, based upon the money he had earned during the time period of the alleged conspiracy, constituting his offense conduct ('GAIN'), even though the GAIN did not result in a loss to victims." Id. at 4. Further, Defense Counsel "advised him that he would be facing more than eighty-seven (87) months imprisonment, if he did not accept the plea agreement." Id. Petitioner asserts that had Defense Counsel advised him that a gain could only be used to calculate a sentence enhancement under certain circumstances (i.e., when it reasonably approximates a victim's loss), he would have never accepted the plea offer. See Id. at 7-8.[1]

         In opposition, the Government contends that the petition is time barred and, in any event, the Petitioner was not misled by Defense Counsel. Opp. at 7, ECF No. 7. In reply, Petitioner argues that his claim is not time barred because he "only became aware of [Defense Counsel's] malfeasance and violative performance in January of ...


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