1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *
7 United States of America, Case No. 2:14-cr-00287-KJD-CWH No. 2:17-cv-02027KJD 8 Plaintiff, ORDER 9 v.
10 Andrew John Gibson,
11 Defendant.
12 Presently before the Court is Movant’s Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set 13 Aside, or Correct Sentence By a Person in Federal Custody (#308). The government responded 14 in opposition (#317) and Movant did not reply. 15 I. Factual and Procedural Background 16 In 2014, a federal grand jury returned a single-count indictment charging Movant Andrew 17 John Gibson (“Gibson” or “Defendant”) with Receipt or Distribution of Child Pornography, in 18 violation of 18 U.S.C. § 2252(a)(2). Gibson was detained pending trial for violating his 19 supervision requirements. After this, he asked to represent himself. Gibson underwent a 20 psychiatric evaluation to determine his competency and the doctor performing the evaluation 21 concluded he was competent to represent himself at trial. The report did provide information 22 regarding Gibson’s Asperger’s Syndrome, a form of Autism Spectrum Disorder. 23 While representing himself, Gibson filed numerous pretrial motions which the Court 24 dismissed. After a three-day trial, a jury convicted Gibson and he was sentenced by this Court to 25 168 months’ imprisonment followed by lifetime supervised release with special conditions. 26 Gibson appealed, the Ninth Circuit affirmed his sentence, and reversed and remanded the 27 supervised release condition prohibiting him from going “any place where [he] know[s] 28 children…are likely to be,” leaving Gibson the option of re-raising certain other challenges to 1 supervised release on remand. United States v. Gibson, 783 F. App’x. 653, 655 (9th Cir. 2019). 2 On remand, Gibson challenged the conditions specified in the remand order, as well as two 3 others. The Court re-imposed the challenged conditions, with some modifications. Gibson 4 appealed again and the Ninth Circuit affirmed. See United States v. Gibson, 998 F.3d. 415 (9th 5 Cir. 2019). 6 On September 6, 2022, Gibson filed a motion under 28 U.S.C. § 2255, asserting ineffective 7 assistance of counsel. (#308). The government opposes that motion and argues that Gibson is not 8 entitled to relief under the statute. (#317). 9 II. Legal Standard 10 28 U.S.C. § 2255 allows a federal prisoner to seek relief under four grounds: (1) “the 11 sentence was imposed in violation of the Constitution or laws of the United States;” (2) “the 12 court was without jurisdiction to impose such a sentence;” (3) “the sentence was in excess of the 13 maximum authorized by law;” and (4) the sentence is “otherwise subject to collateral attack.” 28 14 U.S.C. § 2255(a). 15 A criminal defendant is entitled to reasonably effective assistance of counsel. See McMann 16 v. Richardson, 397 U.S. 759, 771 n.14 (1970). Counsel is presumed competent and the burden 17 rests on the defendant to establish a constitutional violation. See United States v. Cronic, 466 18 U.S. 648, 658 (1984). To obtain a reversal of a conviction, a petitioner must prove both (1) that 19 counsel’s performance was so deficient that it fell below an objective standard of reasonableness, 20 and (2) that counsel’s deficient performance prejudiced the defense to such a degree as to 21 deprive the defendant of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687-88, 692 22 (1894). 23 To establish deficient performance, a defendant must show “that counsel made errors so 24 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 25 Amendment. Id. at 687. The inquiry is “whether counsel’s assistance was reasonable considering 26 all the circumstances.” Id. at 688. 27 To demonstrate prejudice, the defendant must show that, but for counsel’s unprofessional 28 errors, there is a reasonable probability that the result of the proceeding would have been 1 different. Id. at 679. 2 III. Analysis 3 Gibson asserts that before he represented himself, he received ineffective assistance of 4 counsel. (#308, at 5). He argues that counsel was ineffective because (1) he was only provided 5 with 89 pages of discovery; (2) a computer expert was promised but never hired; (3) there was 6 no written plea deal; and (4) because counsel did not object to his request to represent himself. 7 Id. Gibson also asserts that his indictment was fatally flawed and that he never should have been 8 able to represent himself. Id. at 6-7. However, Gibson offers no further argument, nor any 9 evidence, to prove that these made any difference in the outcome of his trial. 10 First, Gibson takes issue with his lawyer giving him 89 pages of discovery, and later 11 receiving from the prosecution the other 400 pages a week before the trial started. Id. at 6. 12 Gibson declares, without providing any details or dates, that this was in violation of the pre-trial 13 document. Id. He states that “[i]f they would have provided the evidence in a timely manor [sic] 14 there would have been a different outcome to the case.” Id. However, nothing in his motion or 15 the record indicates that this is true. Vague and conclusory allegations justify dismissing claims 16 made by a defendant in a § 2255 motion. See Shah v. United States, 878 F.2d 1156, 1161 (9th 17 Cir. 1989). 18 Second, Gibson offers no evidence or substantial argument that a computer expert was 19 promised and never hired, and that had this happened there would have been a different outcome. 20 Third, Gibson’s issue with his counsel failing to provide a written plea deal is also meritless. 21 “[A] defendant has no right to be offered a plea, nor a federal right that the judge accept it[.]” 22 Missouri v. Frye, 566 U.S. 134, 148 (2012). Further, “[t]o show prejudice from ineffective 23 assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s 24 deficient performance, defendants must demonstrate a reasonable probability they would have 25 accepted the earlier plea offer had they been afforded effective assistance of counsel.” Id. at 147. 26 During a hearing before a magistrate judge, Gibson’s former counsel told the Court “there’s no 27 firm offer on the table” and that Gibson had “made it very clear that” he was “not interested in a 28 negotiation anymore and that he would like to represent himself[.]” (#276, at 19). He also told 1 the magistrate judge during the hearing that he would never take a deal. Id. at 23. There is no 2 evidence indicating that Gibson would have taken a deal had it been offered, there is only 3 evidence to the contrary. 4 Fourth, Gibson takes issue with the fact that he was allowed to represent himself. However, a 5 magistrate judge recommended, during a hearing, after making Gibson aware of the dangers of 6 self-representation, that he forfeit his right to self-representation and stick with counsel. (#275, at 7 6-11). After a lengthy discussion with Gibson, the magistrate judge found that Gibson 8 knowingly, intelligently, and unequivocally waived his right to counsel and would represent 9 himself. Id. at 26.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *
7 United States of America, Case No. 2:14-cr-00287-KJD-CWH No. 2:17-cv-02027KJD 8 Plaintiff, ORDER 9 v.
10 Andrew John Gibson,
11 Defendant.
12 Presently before the Court is Movant’s Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set 13 Aside, or Correct Sentence By a Person in Federal Custody (#308). The government responded 14 in opposition (#317) and Movant did not reply. 15 I. Factual and Procedural Background 16 In 2014, a federal grand jury returned a single-count indictment charging Movant Andrew 17 John Gibson (“Gibson” or “Defendant”) with Receipt or Distribution of Child Pornography, in 18 violation of 18 U.S.C. § 2252(a)(2). Gibson was detained pending trial for violating his 19 supervision requirements. After this, he asked to represent himself. Gibson underwent a 20 psychiatric evaluation to determine his competency and the doctor performing the evaluation 21 concluded he was competent to represent himself at trial. The report did provide information 22 regarding Gibson’s Asperger’s Syndrome, a form of Autism Spectrum Disorder. 23 While representing himself, Gibson filed numerous pretrial motions which the Court 24 dismissed. After a three-day trial, a jury convicted Gibson and he was sentenced by this Court to 25 168 months’ imprisonment followed by lifetime supervised release with special conditions. 26 Gibson appealed, the Ninth Circuit affirmed his sentence, and reversed and remanded the 27 supervised release condition prohibiting him from going “any place where [he] know[s] 28 children…are likely to be,” leaving Gibson the option of re-raising certain other challenges to 1 supervised release on remand. United States v. Gibson, 783 F. App’x. 653, 655 (9th Cir. 2019). 2 On remand, Gibson challenged the conditions specified in the remand order, as well as two 3 others. The Court re-imposed the challenged conditions, with some modifications. Gibson 4 appealed again and the Ninth Circuit affirmed. See United States v. Gibson, 998 F.3d. 415 (9th 5 Cir. 2019). 6 On September 6, 2022, Gibson filed a motion under 28 U.S.C. § 2255, asserting ineffective 7 assistance of counsel. (#308). The government opposes that motion and argues that Gibson is not 8 entitled to relief under the statute. (#317). 9 II. Legal Standard 10 28 U.S.C. § 2255 allows a federal prisoner to seek relief under four grounds: (1) “the 11 sentence was imposed in violation of the Constitution or laws of the United States;” (2) “the 12 court was without jurisdiction to impose such a sentence;” (3) “the sentence was in excess of the 13 maximum authorized by law;” and (4) the sentence is “otherwise subject to collateral attack.” 28 14 U.S.C. § 2255(a). 15 A criminal defendant is entitled to reasonably effective assistance of counsel. See McMann 16 v. Richardson, 397 U.S. 759, 771 n.14 (1970). Counsel is presumed competent and the burden 17 rests on the defendant to establish a constitutional violation. See United States v. Cronic, 466 18 U.S. 648, 658 (1984). To obtain a reversal of a conviction, a petitioner must prove both (1) that 19 counsel’s performance was so deficient that it fell below an objective standard of reasonableness, 20 and (2) that counsel’s deficient performance prejudiced the defense to such a degree as to 21 deprive the defendant of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687-88, 692 22 (1894). 23 To establish deficient performance, a defendant must show “that counsel made errors so 24 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 25 Amendment. Id. at 687. The inquiry is “whether counsel’s assistance was reasonable considering 26 all the circumstances.” Id. at 688. 27 To demonstrate prejudice, the defendant must show that, but for counsel’s unprofessional 28 errors, there is a reasonable probability that the result of the proceeding would have been 1 different. Id. at 679. 2 III. Analysis 3 Gibson asserts that before he represented himself, he received ineffective assistance of 4 counsel. (#308, at 5). He argues that counsel was ineffective because (1) he was only provided 5 with 89 pages of discovery; (2) a computer expert was promised but never hired; (3) there was 6 no written plea deal; and (4) because counsel did not object to his request to represent himself. 7 Id. Gibson also asserts that his indictment was fatally flawed and that he never should have been 8 able to represent himself. Id. at 6-7. However, Gibson offers no further argument, nor any 9 evidence, to prove that these made any difference in the outcome of his trial. 10 First, Gibson takes issue with his lawyer giving him 89 pages of discovery, and later 11 receiving from the prosecution the other 400 pages a week before the trial started. Id. at 6. 12 Gibson declares, without providing any details or dates, that this was in violation of the pre-trial 13 document. Id. He states that “[i]f they would have provided the evidence in a timely manor [sic] 14 there would have been a different outcome to the case.” Id. However, nothing in his motion or 15 the record indicates that this is true. Vague and conclusory allegations justify dismissing claims 16 made by a defendant in a § 2255 motion. See Shah v. United States, 878 F.2d 1156, 1161 (9th 17 Cir. 1989). 18 Second, Gibson offers no evidence or substantial argument that a computer expert was 19 promised and never hired, and that had this happened there would have been a different outcome. 20 Third, Gibson’s issue with his counsel failing to provide a written plea deal is also meritless. 21 “[A] defendant has no right to be offered a plea, nor a federal right that the judge accept it[.]” 22 Missouri v. Frye, 566 U.S. 134, 148 (2012). Further, “[t]o show prejudice from ineffective 23 assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s 24 deficient performance, defendants must demonstrate a reasonable probability they would have 25 accepted the earlier plea offer had they been afforded effective assistance of counsel.” Id. at 147. 26 During a hearing before a magistrate judge, Gibson’s former counsel told the Court “there’s no 27 firm offer on the table” and that Gibson had “made it very clear that” he was “not interested in a 28 negotiation anymore and that he would like to represent himself[.]” (#276, at 19). He also told 1 the magistrate judge during the hearing that he would never take a deal. Id. at 23. There is no 2 evidence indicating that Gibson would have taken a deal had it been offered, there is only 3 evidence to the contrary. 4 Fourth, Gibson takes issue with the fact that he was allowed to represent himself. However, a 5 magistrate judge recommended, during a hearing, after making Gibson aware of the dangers of 6 self-representation, that he forfeit his right to self-representation and stick with counsel. (#275, at 7 6-11). After a lengthy discussion with Gibson, the magistrate judge found that Gibson 8 knowingly, intelligently, and unequivocally waived his right to counsel and would represent 9 himself. Id. at 26. Even still, Gibson was evaluated by a psychiatrist to determine if he was 10 competent to represent himself, and the psychiatrist determined that he was. (#78). Finally, 11 Gibson’s counsel was present during the hearing with the magistrate judge and though he did not 12 expressly object to Gibson’s request to represent himself, counsel did make the magistrate judge 13 aware of the dynamic between he and Gibson and why he believed he could effectively represent 14 Gibson with his knowledge and training in the law. (#276, at 16). 15 Lastly, the Court already rejected Gibson’s pre-trial motion challenging the sufficiency of the 16 indictment. (#167). The Court held that the indictment embodied all elements of the crime and 17 that it was sufficient. Id. And as explained above, his argument that he never should have been 18 able to represent himself is misguided. Gibson has failed to satisfy his burden of proving 19 ineffective assistance of counsel. He has not demonstrated that his counsel’s performance fell 20 below an objective standard of reasonableness, and even if it had, he has failed to show that it 21 prejudiced his trial in any way. 22 IV. Certificate of Appealability 23 Finally, the Court must deny a certificate of appealability. To proceed with an appeal, 24 petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 25 22(b); 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United 26 States v.Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make “a 27 substantial showing of the denial of a constitutional right” to warrant a certificate of 28 appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). 1| “The petitioner must demonstrate that reasonable jurists would find the district court's 2 assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). 3 | To meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues differently; or that the 5 | questions are adequate to deserve encouragement to proceed further. Id. Gibson has not met his 6 | burden in demonstrating that he had ineffective assistance of counsel and that it preyudiced his 7 | trial. 8 V. Conclusion 9 Accordingly, IT IS HEREBY ORDERED that Movant’s Motion to Vacate, Set Aside, or 10 | Correct Sentence under 28 U.S.C. § 2255 (#308) is DENIED. 11 IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for 12 | Respondent and against Movant in the corresponding civil action, 2:17-cv-02027-KJD, and close 13 that case; 14 IT IS FURTHER ORDERED that Movant is DENIED a Certificate of Appealability. 15 | DATED this 5" day of June 2023. oN 16 pod sO Kent J. Dawson United States District Judge 18 19 20 21 22 23 24 25 26 27 28
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