United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
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.
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
• 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
• 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.
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
PETITION AND OPPOSITION
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.
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