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United States v. Salamon

United States District Court, D. Massachusetts

December 7, 2016


          ORDER RE: MOTION TO VACATE (Dkt. No. 99)

          MICHAEL A. PONSOR United States District Judge


         Petitioner Jeremiah J. Salamon has filed a motion to vacate his 236-month sentence, arguing that his attorney provided him ineffective assistance in connection with his guilty plea to a four-count superseding indictment charging him with offenses relating to the sexual exploitation of minors. For the reasons set forth below, the motion will be denied.


         On July 30, 2009, a criminal complaint issued against Salamon charging him with distribution of material involving the sexual exploitation of minors. He was arrested the same day and detained. On September 1, 2009, the Grand Jury returned a one-count indictment against him. Subsequently, on April 8, 2010, the Grand Jury handed down a superseding indictment, charging him with two counts of advertising material involving the sexual exploitation of minors, one count of distribution of material involving the sexual exploitation of minors, and one count of possession of material involving the sexual exploitation of minors. (Dkt. No. 42).

         On December 17, 2010, Salamon appeared with counsel and pled guilty to all four counts. The plea was offered pursuant to Fed. R. Crim. P. 11(c)(1)(c), with an agreed prison term of 236 months. Salamon confirmed at the plea proceeding that he had read and understood the plea agreement, discussed it with his attorney, and recognized that he would likely receive a sentence of 236 months in custody. He confirmed at that time that his plea was entirely free and voluntary. On May 25, 2011, Salamon appeared and received the agreed sentence of 236 months.

         On June 14, 2012, Salamon, through counsel, [1] filed this motion to vacate, contending that he received ineffective assistance of counsel. The government subsequently requested an order directing Salamon to provide more details regarding his allegations. On September 25, 2012, the court ordered Salamon to file a “full and complete statement of his version of every pertinent conversation or communication that he had with [his attorney].” (Dkt. No. 106.) The court also ordered Salamon's trial counsel to respond to the allegations by filing an affidavit listing “any pertinent details concerning conversations, correspondence, or documentation exchanged with Salamon.” (Id.) After some delays, Salamon ultimately filed a supplemental memorandum (Dkt. No. 122), trial counsel filed the requested affidavit (Dkt. No. 130), the government filed its opposition to the motion to vacate (Dkt. No. 139), and Salamon filed his reply to the government's opposition (Dkt. No. 156).


         The factual background of this case is particularly ugly. The charges stemmed from an FBI investigation into Salamon's use of the internet to distribute a massive quantity of child pornography, including hundreds of digital images and videos of sadomasochism and sexual torture involving very young children. FBI undercover agents searched Salamon's computer at various times and discovered a page that brazenly advertised his interest in receiving, distributing, and exchanging child pornography:

Welcome & Enjoy!! We are all here for the same thing. lol I share EVERYTHING I have, I ask that you do the same for me. If you have nothing to share, I WILL DELETE YOU!!

(Criminal Compl., Dkt. No. 1, Litowitz Aff. at ¶ 13.)

         After Salamon's arrest, the court ordered him detained and appointed counsel to represent him. By October 2009, Salamon had privately retained another attorney to take over his case. In this petition, Salmon makes numerous allegations regarding conduct by his retained lawyer that he now identifies as constituting ineffective assistance of counsel. This attorney's responsive affidavit substantially denies the alleged misconduct. Because the conduct of counsel, even if it occurred as Salamon alleges, does not constitute ineffective assistance sufficient to justify any habeas remedy, the court will accept Salamon's allegations solely for purposes of this ruling.[2] As will be seen, Salamon's allegations describe, at worst, a rocky and disappointing relationship with his lawyer, but nothing approaching any constitutional deficiency.[3]

         Salamon contends that he dismissed appointed counsel and retained new counsel in part because the attorney told him that he had worked in the federal system and, therefore, had familiarity with this court's sentencing practices. After the new lawyer was retained, the two of them met only a few times in the following year. The lawyer did not accept Salamon's calls from detention. Salamon grew frustrated by this and felt he was not getting sufficient information about his case.

         On September 28, 2010, Salamon concedes that his attorney met with him and discussed a plea offer from the government, supposedly for a sentence of seventeen years in the federal correction facility in Butner, North Carolina. According to Salamon, his attorney warned him that, if he went to trial and was found guilty, the government might seek the maximum punishment, which was life imprisonment, and Salamon might serve this sentence in a maximum-security prison, subject to a daily 23-hour lockdown. Counsel also advised that the undersigned planned to retire soon, and that if the case were transferred to another judge, that new judge would likely sentence him harshly if he were found guilty. Salamon “came away from the September 28 meeting scared that [he] had ...

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