United States District Court, C.D. California
ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C.
D. PREGERSON UNITED STATES DISTRICT JUDGE
before the court is Defendant/Petitioner Kevin Brian Ledgard
(“Petitioner”)'s Motion to Vacate, Set Aside,
o r Correct Sentence pursuant to 28 U.S.C. § 2255.
Having considered the parties' submissions, the court
DENIES the Motion and adopts the following Order.
court has set forth more fully the underlying offense conduct
in its written “Findings of Fact and Conclusion of Law
Following Bench Trial.” (See Govt'
Opp'n, Ex. A.) In brief, this conviction arose out of
Ledgard's actions following the end of his romantic
relationship with a former coworker, F.G. From the day the
two broke up, Ledgard engaged in a series of egregious acts
aimed at F.G. Over the course of approximately a month,
Ledgard sent harassing communications to F.G and her family;
hacked into F.G.'s bank, email, and Amazon accounts; made
unauthorized purchases and sent checks in F.G.'s name;
and distributed sexually explicit photos of F.G. to her
friends, family, coworkers, the admissions director for a
university to which she applied, and a man she had begun
September 7, 2010, a federal grand jury returned an 11-count
Second Superseding Indictment charging Ledgard with multiple
counts of unauthorized access to computers, bank fraud,
aggravated identity theft, and felony enhancements. The case
proceeded to bench trial on July 17, 2012. During the trial,
the government called fourteen witnesses, including F.G.
Ledgard did not testify or call any witnesses. The record
indicates that defense counsel primarily focused on arguing
that the felony enhancements were unjustified as a matter of
law and could not be sustained based on the evidence.
Specifically, Ledgard‘s counsel filed a motion to
dismiss all felony charges for failure of proof, which the
parties fully briefed. (Gov't Opp'n, Exs. D, E, F.)
On August 31, 2012, the court held a hearing on Ledgard's
motion, which also served as closing arguments for the bench
trial. (Id., Ex. G.) After extensive argument, the
Court granted the motion as to the bank fraud counts-thus
acquitting Ledgard on these counts-but denied the motion as
to the remaining felony counts. (Id.) Following a
bench trial before this Court, Ledgard was convicted of three
counts of unauthorized access to the computer of a financial
institution in violation of 18 U.S.C. §§
1030(a)(2)(A), (c)(2)(B)(ii) (Counts One through Three); two
counts of unauthorized access to a protected computer in
violation of 18 U.S.C. §§ 1030(a)(2)(C),
(c)(2)(B)(ii) (Counts Four and Five); and three counts of
aggravated identity theft in violation of 18 U.S.C. §
1028A(a)(1) (Counts Nine through Eleven). See Legard v.
United States, 2:08-cr-00982-DDP (C.D. Cal. Sept. 12,
2012) (Dkt. 198). On December 14, the court sentenced Ledgard
to 25 months imprisonment and three years supervised release.
appealed and the Ninth Circuit affirmed the conviction and
sentence on August 7, 2017. United States v.
Ledgard, 583 F. App'x 654 (9th Cir. 2014). The court
of appeals concluded that the evidence was sufficient to meet
the elements of the convicted counts. On October 14, 2015,
Ledgard timely filed the instant motion to vacate his
sentence pursuant to 28 U.S.C. § 2255, asserting
ineffective assistance of counsel by trial counsel and
constitutional due process violations.
defendant may be entitled to relief under Section 2255 if the
sentence imposed: (1) violated the Constitution or the laws
of the United States; (2) was given by a court without
jurisdiction to do so; (3) exceeded the maximum authorized by
law; or (4) is otherwise subject to collateral attack. 28
U.S.C. § 2255(a). If “the motion and the files and
the records of the case conclusively show that the prisoner
is entitled to no relief, ” a resolution may be reached
without an evidentiary hearing. 28 U.S.C. § 2255(b);
United States v. Mejia-Mesa, 153 F.3d 925, 931 (9th
Cir. 1998) (district court may deny a Section 2255 motion
where movant's allegations “are so palpably
incredible or patently frivolous as to warrant summary
dismissal.” (quotation and citation omitted)). When a
petitioner alleges ineffective assistance of counsel, an
evidentiary hearing is necessary only if, assuming the
petitioner's factual allegations as true, the ineffective
assistance of counsel claim could prevail. U.S. v.
Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994).
Ineffective Assistance of Counsel
first ground for seeking habeas relief is that his trial
counsel failed to provide effective assistance of counsel in
violation of his Sixth Amendment rights. Under the Sixth
Amendment, all criminal defendants enjoy the right to
effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686-700 (1984). In
Strickland, the Supreme Court held that in order to
show ineffective assistance of counsel, a defendant must
demonstrate (1) that counsel's performance was deficient
and fell below an objective standard of reasonableness and
(2) the defendant was prejudiced as a result and deprived of
a fair trial. Id. at 687. In assessing counsel's
performance, courts must presume that counsel's conduct
and trial strategy “falls within the wide range of
reasonable professional assistance . . . .”
Strickland, 466 U.S. at 689.
support of his ineffective assistance of counsel
(“IAC”) claim, Ledgard identifies a number of
occasions where his counsel allegedly rendered deficient
performance. Although each of these instances will be
discussed in greater detail below, the court notes that an
overall issue with Ledgard's IAC claim is its lack of
specificity. As the Ninth Circuit has explained,
“[a]lthough section 2255 imposes a fairly lenient
burden on the petitioner, the petitioner is nonetheless
‘required to allege specific facts which, if true,
would entitle him to relief.'” United States v.
Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (quoting
United States v. McMullen, 98 F.3d 1155, 1159 (9th
Cir. 1996)). Here, the lack of clarity in Ledgard's
petition as to the precise facts that substantiate his IAC
claim-for instance, the specific deficiencies of
counsel's conduct, what might have been done differently,
why that might have resulted in a different outcome-counsel
against granting Ledgard's motion. See Shah v.
U.S., 878 F.2d 1156, 1161 (9th Cir. 1989) (noting that
vague and conclusory allegations of ineffective assistance of
counsel in § 2255 ...