[Docket No. 1]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

_____________________________

:

JARON BURNETT, : Civ. No. 10-3955 (RMB)

:

Petitioner :

v. : OPINION

:

UNITED STATES OF AMERICA, :

:

Respondent. :

_____________________________ :

This matter comes before the Court upon a motion to

vacate, set aside, or correct sentence under 28 U.S.C. § 2255

filed by the Petitioner, Jaron Burnett. For the reasons set

forth below, this motion is denied.

A. Background

On October 10, 2008, Burnett pled guilty to one count of

“knowingly transport[ing] an[] individual in interstate

. . . commerce . . . with intent that such individual engage in

prostitution.” 18 U.S.C. § 2421. The pre-sentence report

submitted by the United States Probation Office found that

Burnett’s base offense level was 24, but recommended applying two 

two-level enhancements. The first enhancement was recommended on

the basis that the offense involved a commercial sex act, while

the second enhancement was recommended pursuant to U.S.S.G. 

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§ G1.3(b)(3)(B) of the United States Sentencing Guidelines (“the

Guidelines”), which provides for an upward adjustment “[i]f the

offense involved the use of a computer or an interactive computer

service to . . . entice, encourage, offer, or solicit a person to

engage in prohibited sexual conduct with [a] minor.”

At sentencing, the Court heard testimony both from Burnett

and from Federal Bureau of Investigation Special Agent Daniel

Garrabrant. Garrabrant testified that he had interviewed a

seventeen-year-old minor identified as A.M. A.M. told

Garrabrant that, after meeting Burnett in Yonkers, New York, she

“worked as a prostitute for him” in both New York City and

Atlantic City, and that Burnett posted photographs of her on the

website Craigslist. According to Garrabrant, analysis of

Burnett’s computer revealed that Burnett had accessed Craigslist

and had received replies to one or more postings regarding A.M.,

including responses that temporally “matche[d] weekends in which

[A.M.] would have been in Atlantic City.” Burnett, meanwhile,

admitted to posting pictures of A.M. accompanied by his phone

number on Craigslist and to receiving responses to those postings

by e-mail and telephone. He stated, however, that he used only

the New York City Craigslist site, not the South Jersey site,

because he found the latter “too broad” in geographic terms.

The Court concluded both that (1) Burnett’s testimony did

not contradict Garrabrant’s view that the dates of the responses

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to the Craigslists postings corresponded to the times A.M. was in

Atlantic City, and (2) the text of § 2G1.3(b)(3)(B), as

elaborated by an application note, covered Burnett’s conduct.

Accordingly, the Court applied a two-level enhancement pursuant

to § 2G1.3(b)(3)(B). The Court did, however, determine that the

government had not met its burden of proving that the adjustment

for a commercial sex act applied.

After the application of a three-level reduction for

acceptance of responsibility, the resulting Guidelines range for

Burnett’s sentence was 84 to 105 months in prison. The Court

sentenced Petitioner to 105 months in prison, followed by fifteen

years of supervised release. On April 16, 2010, the Court of

Appeals for the Third Circuit affirmed the judgment of sentence. 

B. §2255 Motion

Burnett’s motion raises two grounds for relief. First,

Burnett raises an ineffective assistance of counsel claim,

asserting that his appellate counsel, Roland Jarvis, was

ineffective because he decided not to raise as an issue on appeal

the two-level sentencing enhancement that Burnett received,

pursuant to U.S.S.G. § 2G1.3(b)(3)(B), for use of a computer to

“entice, encourage, offer, or solicit a person to engage in

prohibited sexual conduct with the minor.” Second, Burnett

argues, on the merits, that the Court erred in awarding this twolevel enhancement. 

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Burnett’s appellate counsel filed a motion before the Third

Circuit, pursuant to Anders v. California, 386 U.S. 738 (1967),

requesting permission to withdraw because counsel concluded that

there were no non-frivolous issues for appeal. Before ruling on

the motion, the Third Circuit gave Burnett an opportunity to file

a pro se brief, raising any issues he deemed to be non-frivolous. 

Burnett thereafter filed a brief arguing that this Court

improperly applied the two-level enhancement pursuant to §

2G1.3(b)(3)(B). 

In affirming this Court’s judgment of sentence, the Third

Circuit held that “there are no non-frivolous issues on appeal.” 

The Third Circuit specifically considered the two challenges in

Burnett’s pro se brief to the application of § 2G1.3(b)(3)(B),

and found that this Court properly applied the two-level

enhancement.

In order to prevail on his ineffective assistance of counsel

claim, Petitioner must satisfy the two-pronged test announced by

the United States Supreme Court in Strickland v. Washington, 466

U.S. 668 (1984). To do so, he must show that: (1) his attorney’s

“performance was, under all the circumstances, unreasonable under

prevailing professional norms,” and (2) there is a “reasonable

probability that, but for counsel’s unprofessional errors, the

result would have been different.” United States v. Day,9696

U.S. F.2d 39, 42 (3d Cir. 1992)(citing Strickland, 466 U.S. at

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687-96).

Although this test sets forth the performance prong of an

ineffectiveness claim prior to the prejudice prong, “there is no

reason for a court deciding an ineffective assistance claim to

approach the inquiry in the same order or even to address both

components of the inquiry if the defendant makes an insufficient

showing on one.” Strickland, 466 U.S. at 697. Indeed, as the

Supreme Court has noted:

a court need not determine whether counsel’s

performance was deficient before examining the

prejudice suffered by the defendant as a result of the

alleged deficiencies. The object of an ineffectiveness

claim is not to grade counsel’s performance. If it is

easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, which we expect

will often be so, that course should be followed.

Id. Thus, this Court need not reach the issue of whether

Burnett’s counsel was ineffective for failing to raise an

argument about the applicability of § 2G1.3(b)(3)(B) in his brief

on appeal because Burnett cannot bear his burden of demonstrating

any prejudice as a result of that failure. The Third Circuit has

already considered this issue and found it to be frivolous.

Moreover, defendant may not relitigate issues that were

decided adversely to him on direct appeal through a motion for

relief pursuant to 28 U.S.C. § 2255. United States v. DeRewal,

10 F.3d 100, 105 n. 4 (3d Cir. 1993); Government of Virgin

Islands v. Nicholas, 759 F.2d 1073, 1074-75 (ed Cir. 12985). See

also United States v. Kikumura, 947 F.2d 72, 77 (3d Cir.

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1991)(defendant “cannot continue to litigate questions already

decided by this court in a prior proceeding”).

C. Conclusion

In conclusion, because the Court of Appeals for the Third

Circuit has already ruled on the merits that the enhancement

pursuant to § 2G1.3(b)(3)(B) was properly applied, Burnett cannot

demonstrate that his appellate counsel was ineffective for

failing to raise the claim, and Burnett cannot relitigate the

merits of that claim before this Court. Petitioner’s motion for

relief is therefore denied. 

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: October 15, 2010

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