Guarascio v. United States

996 F. Supp. 2d 406, 2014 U.S. Dist. LEXIS 19093, 2014 WL 576125
CourtDistrict Court, E.D. North Carolina
DecidedFebruary 5, 2014
DocketNos. 7:09-CR-109-D, 7:11-CV-44-D
StatusPublished

This text of 996 F. Supp. 2d 406 (Guarascio v. United States) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Guarascio v. United States, 996 F. Supp. 2d 406, 2014 U.S. Dist. LEXIS 19093, 2014 WL 576125 (E.D.N.C. 2014).

Opinion

ORDER

JAMES C. DEVER III, Chief Judge.

On February 9, 2011, Joseph Michael Guarascio (“Guarascio”) moved, pursuant to 28 U.S.C. § 2255, to vacate his conviction for manufacturing child pornography. [D.E. 28]; see Judgment [D.E. 23]. In his motion, he asserted three claims. See [D.E. 28]. On July 23, 2013, the court dismissed Guarascio’s claim that his trial counsel was ineffective for failing to advise Guarascio of a possible constitutional chai-[408]*408lenge to the child pornography statute as applied to him and his claim of actual innocence. See [D.E. 39] 6-8. The court permitted one ineffective assistance of counsel claim to proceed. In that claim, Guarascio asserted that his trial counsel was constitutionally ineffective in failing to advise Guarascio of the grounds to suppress certain evidence seized pursuant to state-court search and seizure warrants. When state officers executed the search and seizure warrants, they discovered evidence used to prosecute Guarascio for sex offenses involving a minor in state and federal court. See id. 4-6.

On December 23, 2013, the government moved for summary judgment concerning the sole remaining claim. See [D.E. 45]. As part of the motion for summary judgment, the government submitted a detailed affidavit from Guarascio’s former trial counsel. See [D.E. 46-1]. Guarascio (who is represented by counsel) did not file a response in opposition. As explained below, the court grants the government’s motion for summary judgment.

I.

On August 27, 2009, Guarascio was charged in a criminal information in the Eastern District of North Carolina with manufacturing child pornography, in violation of 18 U.S.C. § 2251(a) and (d). See [D.E. 1], Mark E. Edwards (“Edwards”) was Guarascio’s court-appointed counsel. Edwards Aff. [D.E. 46-1] ¶ 2. Simultaneously with this federal prosecution, Guarascio “was facing numerous state charges for sexual offenses involving a minor.” Id. ¶ 3. Counsel Thomas Hicks represented Guarascio concerning the state charges. Id. ¶ 4.

On September 21, 2009, Guarascio and Edwards appeared in this court for Guar-ascio’s arraignment. See [D.E. 6]. At the arraignment, Guarascio waived indictment and pleaded guilty to the criminal information, pursuant to a written plea agreement. See [D.E. 6, 7, 8]. The plea agreement stated that the minimum penalty for manufacturing child pornography is 15 years’ imprisonment. See [D.E. 8] ¶ 3.a.(6). The court also advised Guarascio of this fact. See Arraignment Tr. [D.E. 16] 5.

On November 25, 2009, Edwards moved to withdraw as Guarascio’s counsel. See [D.E. 11]. On the same date, attorney Marcia G. Shein entered her appearance on his behalf. See [D.E. 12], On November 30, 2009, the court granted Edwards’s motion to withdraw. See [D.E. 13]. Shein represented Guarascio at sentencing.

On February 9, 2010, the court held the sentencing hearing and adopted the undisputed facts set forth in the presentence investigation report (“PSR”). Sentencing Tr. [D.E. 25] 7; see Fed.R.Crim.P. 32(i)(3)(A). The court then calculated the advisory guideline imprisonment range to be 235 to 293 months’ imprisonment, based on a total offense level of 38 and a criminal history category of I. See PSR ¶ 41; Sentencing Tr. 23-24. The government moved for a downward departure pursuant to U.S.S.G. § 5K1.1. See [D.E. 20]; Sentencing Tr. 24-26. The court granted the section 5K1.1 motion, sentenced Guarascio to the mandatory minimum of 180 months’ imprisonment, and imposed a life term of supervised release. See Judgment [D.E. 23]; Sentencing Tr. 26, 48. Guarascio did not appeal and his time to do so expired no later than March 5, 2010. See, e.g., Fed. R.App. P. 4(b)(1); Clay v. United States, 537 U.S. 522, 525, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003).

On February 9, 2011, Guarascio filed a timely motion to vacate his conviction pursuant to 28 U.S.C. § 2255 [D.E. 28]. In his motion, Guarascio asserted that (1) Edwards was ineffective for failing to advise him of the grounds to suppress the evidence seized pursuant to the search and [409]*409seizure warrants issued in state court; (2) Edwards was ineffective for failing to advise him of a possible constitutional challenge to the child-pornography statute as applied to him; and, (3) he was actually innocent of manufacturing child pornography. See [D.E. 28] 5-16. On June 6, 2011, the government filed a motion to dismiss for failure to state a claim upon which relief can be granted and a supporting memorandum. See [D.E. 33, 34]. On June 27, 2011, Guarascio responded in opposition to the motion to dismiss. See [D.E. 36].

On July 23, 2013, this court dismissed Guarascio’s second and third claims for relief, but permitted the ineffective assistance of counsel claim concerning the state-court search and seizure warrants to proceed. See [D.E. 39] 6-8. On December 23, 2013, the government moved for summary judgment [D.E. 45]. In support, the government submitted a memorandum and a detailed affidavit from Edwards. See [D.E. 46, 46-1]. Guarascio did not file a response in opposition.

Summary judgment is appropriate when, after reviewing the record taken as a whole, no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the nonmoving party may not rest on the allegations or denials in its pleading, Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505, but “must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis and quotation omitted). A trial court reviewing a motion for summary judgment should determine whether a genuine issue of material fact exists for trial. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. In making this determination, the court must view the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving party. Scott v. Harris,

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Bluebook (online)
996 F. Supp. 2d 406, 2014 U.S. Dist. LEXIS 19093, 2014 WL 576125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guarascio-v-united-states-nced-2014.