The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER DENYING PETITIONER'S MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255
This case arises out of petitioner Jeffrey Brett Goodin's conviction on June 11, 2007 after trial by jury. Specifically, petitioner was convicted on three counts of wire fraud pursuant to 18 U.S.C. § 1343; one count of knowing and material falsification of email headers pursuant to the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM Act"), 15 U.S.C. §§ 7701-13 and 18 U.S.C. § 1037; one count of aiding and abetting the use of unauthorized access devices pursuant to 18 U.S.C. §§ 1029(a)(2); one count of possession of unauthorized access devices pursuant to 18 U.S.C. §§ 1029(a)(3); one count of aggravated identity theft pursuant to 18 U.S.C. § 1028A(a)(1); one count of use of a counterfeit mark pursuant to 18 U.S.C. § 2320(a); two counts of witness harassment pursuant to 18 U.S.C. § 1512(d)(1); and one count of failure to appear pursuant to 18 U.S.C. §§ 3146(a), (b)(1)(A)(iii). Mot. at 2. By the instant motion, petitioner challenges his conviction for knowing and material falsification of email under the CAN-SPAM Act. The jury found that petitioner devised and executed an internet "phishing" scheme, wherein he obtained personal information from an Internet Service Provider (ISP") and America Online ("AOL") users by sending them unsolicited e-mails that falsely purported to be from the AOL billing department and prompting them to input their personal and financial information. Opp'n at 2; See Dkt No. 98 (Trial Minutes 1/12/07). To carry out this scheme, petitioner sent emails to AOL users with falsified header information by using fraudulently created e-mail accounts with ISP Earthlink. Id.
On June 11, 2007, petitioner was sentenced to seventy months in prison and was ordered to pay restitution in the amount of $1,002,885.58, which included the sum of $996,680 payable to Earthlink. Opp'n at 13-15. On June 13, 2007, petitioner timely filed a notice of his appeal of his conviction and sentence on the charge of violating the CAN-SPAM Act. On appeal, petitioner argued that his conviction on this count must be vacated because the evidence was insufficient to prove that the e-mail was "commercial," which was an element of the offense, and that the jury instruction defining "commercial e-mail" erroneously included messages "related to" a commercial product or service. Id. at 15. He further argued that the $996,680 loss reported by Earthlink should not have been used in calculating petitioner's sentencing guideline range because Earthlink's calculation bore no relation to petitioner's conduct. Id. Petitioner also argued that because there was no evidentiary support for the loss claimed by Earthlink, the restitution order should be vacated. Id. On December 17, 2008, the Court of Appeals for the Ninth Circuit affirmed defendant's convictions, his sentence, and the restitution order.*fn1 Id. at 16. On January 30, 2009, petitioner filed a petition for rehearing and for rehearing en banc.*fn2 Id. On February 26, 2009, the Ninth Circuit denied petitioner's petition for rehearing and for rehearing en banc. Id.
On August 11, 2009, petitioner filed the instant motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody, in which he alleged that he received ineffective assistance of counsel at trial and sentencing. The government filed its answer on February 25, 2010. A reply was filed on March 22, 2010.
A petition pursuant to 28 U.S.C. § 2255 challenges a federal conviction and/or sentence to confinement where a prisoner claims "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." Sanders v. United States, 373 U.S. 1, 2 (1963).
Ineffective assistance of counsel constitutes a violation of the Sixth Amendment right to counsel, and thus, if established, is grounds for relief under § 2255. To establish ineffective assistance of counsel, a petitioner must prove by a preponderance of the evidence that: (1) the assistance provided by counsel fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). A claim of ineffective assistance of counsel fails if either prong of the test is not satisfied and petitioner has the burden of establishing both prongs. Id. at 697; United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).
With respect to the first prong, the court's review of the reasonableness of counsel's performance is "highly deferential," and there is a "strong presumption" that counsel exercised reasonable professional judgment. Id. The petitioner must "surmount the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id.
After establishing an error by counsel and thus satisfying the first prong, a petitioner must satisfy the second prong by demonstrating that his counsel's error rendered the result unreliable or the trial fundamentally unfair. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). A petitioner must show that there is a reasonable probability that, but for his counsel's error, the result of the proceeding would have been different. Strickland at 694. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id.
The Court need not necessarily determine whether petitioner has satisfied the first prong before considering the second. The Supreme Court has held that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed." Id. at 670. Indeed, a petitioner's failure to allege the kind of prejudice necessary to satisfy the second prong is sufficient by itself to justify a denial of a petitioner's § 2255 motion without hearing. Hill v. Lockhart, 474 U.S. 52, 60 (1985).
Petitioner asserts that he was provided ineffective assistance of counsel at his original trial and at sentencing. Mot. at 5. Petitioner argues that his counsel provided ineffective assistance of counsel by (1) failing to object at trial to a jury instruction defining "commercial e-mail" as used in the CAN-SPAM Act; (2) failing to object at sentencing on causation grounds to the inclusion of the cost of Earthlink's servers in the loss amount; and (3) failing to object at sentencing on causation grounds to the inclusion of the cost of Earthlink's servers in the restitution amount. Petitioner argues that but for his counsel's ...