UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ronald Goergen

v. Civil No. 13-cv-283-JD Opinion No.

United States of America

O R D E R

Ronald Goergen was sentenced to four consecutive terms of imprisonment of fifteen years each after he pleaded guilty to

four counts of sexual exploitation of children in violation of

(a). Goergen now seeks relief from his sentence

pursuant to

, alleging two claims of ineffective

assistance of counsel. The government objects to habeas relief.

Background

Count I of the information against Goergen charged that

“[o]n a date uncertain, but between August 1, 2003 and December

31, 2004,” Goergen “did employ, use, persuade, induce, entice and

coerce a minor child, Jane Doe 1, to engage in sexually explicit

conduct for the purpose of producing a visual depiction of such

conduct, to wit, a computer image ‘jpg’file, which visual

depiction was transported in interstate or foreign commerce or

was mailed.” Count II charged that “[o]n a date uncertain, but

between August 1, 2002 and December 31, 2004" Goergen “did

employ, use, persuade, induce, entice and coerce a minor child,

Jane Doe 2, to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, to wit,

a computer video file, which visual depiction was transported in

interstate or foreign commerce or was mailed.” Count III charged

the same conduct with Jane Doe 2, and Count IV charged the

conduct with Jane Does 1 and 2 for the purpose of producing “a

computer image ‘jpg’ file.” The actions charged were in

violation of

(a).1

Goergen pleaded guilty, without a plea agreement, to all four counts on September 15, 2010. The government recommended

consecutive sentences of fifteen years on each count for a total

of sixty years. Goergen objected to the government’s

recommendation and asked for a total sentence of fifteen years.

In support of his objection to the recommended sixty-year

sentence, Goergen argued that the 2002 version of U.S.S.G. §

2G2.1 should have been used to calculate his offense level for

Counts II, III, and IV because the actions charged in those

counts occurred before November 1, 2004, when the Guidelines were

amended and changed § 2G2.1. He also argued that the facts did

not support an offense characteristic for sadistic conduct under

U.S.S.G. § 2G2.1(b)(4). As a result, Goergen asserted, the

offense level calculated by the probation officer was higher than

it should have been. Goergen conceded that the probation

1 Section 2251 was amended by the PROTECT Act, effective April 30, 2003, which increased the minimum and maximum penalties.

2 officer’s recommended offense level for Count I, based on the

then-current version of the Guidelines, 2010, was correct and did

not challenge that part of the recommendation.2

The court concluded that the retroactive application of the

2010 version of § 2G2.1 did not have an ex post facto effect in

Goergen’s case because the changes did not affect the length of

his sentence.3 The court also concluded that there were

sufficient facts to support an offense characteristic under § 2G2.1(b)(4). For those reasons, the court rejected Goergen’s

objections to the recommended sentence and sentenced Goergen to

four consecutive terms of fifteen years each.

On appeal, Goergen argued that use of the 2010 Guidelines

violated the Ex Post Facto Clause as to Counts II, III, and IV

but conceded that Count I involved conduct that occurred after

the amendment of the Guidelines in November of 2004. He also

argued that his sentence was unreasonable due to an improper

assessment of the risk of recidivism and that the court did not

assess the totality of the circumstances in imposing the

sentence. The First Circuit found no ex post facto violation,

2 As explained at the sentencing hearing and in the court’s memorandum and order on Goergen’s objection to the government’s sentencing recommendation, the Presentence Investigation Report referred to the 2008 Guidelines, instead of the 2010 Guidelines, which was a typographical error. 3 Because of the “one book rule,” the 2010 version of the Guidelines Manual, which Goergen conceded applied to Count I, would apply to all counts unless the application would violate the Ex Post Facto Clause.

3 noting that the sentence was imposed based on factors other than

the offense level, and affirmed the court’s decision. United

States v. Goergen,

(1st Cir. 2012).

Discussion

For purposes of review under § 2255, Goergen contends that

counsel denied him effective representation by allowing him to

plead guilty to Count I based on conduct that occurred after April 30, 2003, and by failing to argue that the April 2003

Guidelines Manual (meaning the 2002 Manual along with the

supplement issued on April 30, 2003) applied at sentencing. The

government objects, arguing that the record shows that the

conduct charged in Count I occurred on August 1, 2003, making the

amended version of § 2251 applicable, and that application of the

April 2003 Guidelines would not have caused the court to impose a

shorter sentence.

A. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants the

right to counsel.” United States v. Rodriguez,

(1st Cir. 2014). To succeed on a claim of ineffective assistance

of counsel, a habeas petitioner “must demonstrate both: (1) that

counsel’s performance was deficient, meaning that counsel made

errors so serious that counsel was not functioning as the counsel

guaranteed the defendant by the Sixth Amendment; and (2) that the

4 deficient performance prejudiced the defense.” Pena v. Dickhaut,

(1st Cir. 2013) (internal quotation marks

omitted); see also Strickland v. Washington,

(1984).

A highly deferential standard applies when considering

ineffective assistance of counsel claims. Pena,

.

“The reviewing court ‘must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.’” United States v. Valerio,

(1st Cir. 2012) (quoting Strickland,

).

Therefore, a habeas petitioner must show that “given the facts

known at the time, counsel’s choice was so patently unreasonable

that no competent attorney could have made it.” Pena,

(internal quotation marks omitted).

“To demonstrate prejudice, [a habeas petitioner] must show a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

(internal quotation marks omitted). The court may resolve a

claim of ineffective assistance of counsel based on the prejudice

prong without first determining whether counsel’s performance was

constitutionally ineffective. United States v. LaPlante,

(1st Cir. 2013).

5 B. Guilty Plea to Count I

Goergen was charged in Count I with sexual exploitation of a

child, in violation of § 2251(a), during the time period between

August 1, 2003, and December 31, 2004. Section 2251 was amended,

effective April 30, 2003, which increased the minimum time of

imprisonment from ten to fifteen years and the maximum time from

twenty to thirty years. Therefore, Goergen contends, if he had

pleaded guilty to conduct that occurred before April 30, 2003, rather than after, the shorter minimum and maximum penalties

would have applied.

In challenging his guilty plea based on ineffective

assistance of counsel, Goergen must show that his trial counsel’s

representation was constitutionally deficient and “that there is

a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to

trial.” Hill v. Lockhart,

(1985); see also

Moreno-Espada v. United States,

(1st Cir. 2012).

Goergen asserts that his trial counsel failed to provide

reasonably competent representation by failing to consult with

him about the time frame for the charged conduct in Count I in

light of the effective date of the amended version of § 2251 and

should have told him that he had a reasonable defense to Count I

based on the time during which the crime could have been

committed. In support, Goergen relies on new representations

made by counsel in the Amended Petition that the conduct charged

6 in Count I, based on a photograph, could only have occurred

between June 30, 2002, and September 1, 2003, when Goergen lived

in the house that is shown in the photograph. For that reason,

Goergen argues, it is likely that the photograph was taken before

April 30, 2003, and trial counsel was constitutionally

ineffective in failing to raise that defense.

The government objects. The government asserts that

Goergen’s argument is procedurally improper because it relies on allegations that are not properly supported. In addition, the

government contends, even accepting the new allegations, Goergen

cannot show prejudice.

Rule 2 of the Rules Governing Section 2255 Proceedings

requires that a motion for habeas relief must “be signed under

penalty of perjury by the movant or by a person authorized to

sign it for the movant.” Rule 2(a)(5). Similarly,

states: “Application for a writ of habeas corpus shall be

in writing signed and verified by the person for whose relief it

is intended or by someone acting on his behalf.” See also

McGarry ex rel. McGarry v. Karr,

, at *1 (W.D.

Wash. Apr. 10, 2012) (“The clear implication of these rules is

that a petitioner, or someone legally acting on petitioner’s

behalf with knowledge of the contents of the petition, such as an

attorney, must sign and verify the petition.”).

Goergen signed his initial motion for habeas relief, filed

pro se, under penalty of perjury. That motion, however, does not

7 include the facts alleged in the Amended Petition about the time

frame for the photograph that is the subject of the charged

conduct in Count I. Although the Amended Petition is signed by

Goergen’s attorney, the time-frame facts are not verified by

Goergen or supported by Goergen’s affidavit.

Assuming without deciding that the time-frame facts may be

considered because the Amended Petition was signed by Goergen’s

attorney under Federal Rule of Civil Procedure 11, Goergen’s argument nevertheless lacks merit. In the photograph that is the

subject of Count I, the child is holding a sign that says “August

1, 2003.” The prosecutor made a proffer at the sentencing

hearing that the child victim would testify that the photograph

was taken on that date. Goergen accepted those facts as part of

his guilty plea.

Goergen’s new theory about the time frame of the photograph,

based on the date when he moved away from the house where the

photograph was taken, does not suggest a viable defense. Because

Goergen still lived in the house on August 1, 2003, the

photograph could have been taken on that date. No other facts

show that the photograph could not have been taken after April

30, 2003. Under those circumstances, Goergen has fallen far

short of showing that his counsel’s advice on the guilty plea and

counsel’s failure to consider a defense based on the time frame

were patently unreasonable.

8 The government also argues that Goergen cannot show

prejudice because his self-serving statements without a claim of

innocence and without a plausible defense, are insufficient. See

Moreno-Espada,

. Goergen does not deny that he

took the photograph of the child victim. He also provides no

plausible evidence that the photograph was taken at any time

other than August 1, 2003, the date shown in the photograph. As

such, Goergen has not shown that he suffered prejudice, even if his counsel’s representation on the guilty plea had been

constitutionally deficient.

C. Sentencing

(a)(4)(A) and U.S.S.G. § 1B1.11 provide that

a sentencing court should apply the version of the Guidelines in

effect at the time of sentencing unless that application would

violate the Ex Post Facto Clause. United States v. Pagan-Ferrer,

(1st Cir. 2013). When a defendant is sentenced

for multiple convictions on offenses that occurred over a period

spanning different versions of the Guidelines, the court is to

apply a single version of the Guidelines to all of the

convictions and the version in effect at the time of the last

offense governs.

.

U.S.S.G. § 2G2.1, the sentencing guideline pertinent to

Goergen’s conduct, was amended effective November 1, 2004, and

the amendments remained in effect in the 2010 Guidelines. The

9 amended version of § 2G2.1 raised the base offense level from 27

to 32 and included new offense characteristics as bases for

enhancements, including sadistic conduct. Before sentencing,

Goergen conceded that the 2010 version of the Sentencing

Guidelines applied to Count I but argued that, contrary to the

one-book rule, the April 2003 Guidelines applied to Counts II,

III, and IV. The court applied the 2010 version of the

Guidelines to all counts, and the decision was affirmed on appeal. Goergen,

.

For purposes of habeas relief, Goergen contends that his

trial counsel’s representation was constitutionally ineffective

because the November 2004 version of the Guidelines did not apply

to the conduct charged in Count I. He argues that counsel failed

to read the April 2003 Guidelines so that counsel did not realize

that the changes to U.S.S.G. § 2G2.1 were not made until the

November 2004 Guidelines. Goergen argues that he received a

harsher sentence than he would have if the correct Guidelines had

been applied.

Under the 2010 Guidelines, Goergen’s total offense level was

51 with an advisory guidelines range of life or the statutory

maximum sentence of ninety years. Goergen represents that under

the April 2003 Guidelines, his total offense level would have

been 39, with an advisory guidelines range of 262 to 327 months

(approximately twenty-two to twenty-seven years).

10 In response, the government contends that whether or not

counsel’s representation was constitutionally deficient with

respect to which version of the Guidelines applied, Goergen was

not prejudiced because the court would have imposed the same

sentence even if the more lenient April 2003 Guidelines were

applied. The government relies on the court’s statements during

the sentencing hearing that an appropriate sentence would be at

the top of the statutory maximum, which was 90 years. The sexual exploitation of children for which Goergen was

convicted involved circumstances that made his crimes

particularly offensive and reprehensible. As the court made

clear at the sentencing hearing, the court concluded then that a

sentence which was the equivalent of life in prison was warranted

in Goergen’s case. Therefore, a sentence of sixty years

imprisonment, which is within the statutory maximums, would be

appropriate even if the applicable Guideline range were 262 to

327 months.

Conclusion

For the foregoing reasons, Goergen’s Amended Petition for

habeas relief (document no. 15) is denied.

Because there is no substantial showing of the denial of a

constitutional right within the meaning of

(c)(2), the court declines to issue a certificate of

appealability.

11 The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________ Joseph A. DiClerico, Jr. United States District Judge

June 11, 2014

cc: Andrew R. Schulman, Esq. Seth R. Aframe, Esq.

12