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Van Velkinburgh v. United States

United States District Court, N.D. Mississippi, Eastern Division

February 18, 2014

DANNY J. VAN VELKINBURGH, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM OPINION

MICHAEL P. MILLS, Chief District Judge.

This matter comes before the court on the motion of Danny J. Van Velkinburgh to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The government has responded to the motion, and the matter is ripe for resolution. For the reasons set forth below, the instant motion to vacate, set aside, or correct sentence will be denied.

Facts and Procedural Posture

Danny J. Van Velkinburgh was convicted by a jury for coercion or enticement of a female under 18 U.S.C. § 2422(b). On July 28, 2008, the court imposed a judgment that the movant serve 148 months in the custody of the United States Bureau of Prisons. Van Velkinburgh appealed the judgment, raising the following points of error:

(1) That the evidence was insufficient to support the verdict;
(2) That the district court erred in failing to give a curative instruction after the prosecutor commented on his failure to call a particular witness; and
(3) That the district court erred in failing to give the jury an instruction on spoliation of evidence regarding text messages between Van Velkinburgh and a government investigators posing as a minor girl.

The Fifth Circuit rejected these arguments and affirmed the judgment.

In the instant § 2255 motion, Van Velkinburgh makes the following claims for relief:

(1) Counsel was ineffective for failing to obtain records of text messages between Van Velkinburgh and the government investigators posing as a minor girl;
(2) Counsel was ineffective for failure to investigate the case and to call witnesses to support Van Velkingburgh's defense;
(3) Counsel was ineffective for urging Van Velkinburgh to plead guilty to avoid trial;
(4) Counsel was ineffective for failing to send Van Velkinburgh a copy of the pre-sentence investigation report prior to sentencing;
(5) Counsel was ineffective for failing to object to a two-level sentence enhancement under Section 2G1.3(b)(3)(A) of the United States Sentencing ...

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