                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 16-1963
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                THADDEUS VASKAS,
                                                 Appellant
                                  ______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            (D.C. No. 5-12-cr-00128-001)
                        District Judge: Hon. Harvey Bartle, III
                                   ______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  February 9, 2017
                                  ______________

             Before: McKEE, RENDELL, and FUENTES, Circuit Judges.

                              (Opinion filed: June 5, 2017)

                              _______________________

                                     OPINION *
                              ______________________




*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
McKEE, Circuit Judge.

       Defendant Thaddeus Vaskas appeals the denial of his petition for a writ of habeas

corpus alleging ineffective assistance of counsel following his guilty plea to possession of

child pornography. For the reasons that follow, we will affirm.

                                             I1

       Vaskas was charged with possession of child pornography in violation of 18

U.S.C. § 2252(a)(4)(B) for images and videos found on his laptop computer. Benjamin

Cooper represented him at the time of his plea. Cooper hired a computer expert, Tami

Loehrs, who issued a report that concluded that Vaskas was likely not responsible for the

image and video files on his computer. Specifically, Loehrs’s report concluded that all

but one of the files “were found in locations that were automatically ‘cached’ to the hard

drive by software applications,” “spam,” or popups” that were “likely unknown to

Vaskas.”2 Overall, the report concluded that the evidence “is more indicative of a user

who may have received child pornography unwittingly.”3

       After the government produced a contradictory report, Loehrs issued a second

report which concluded that the files were “found in locations automatically ‘cached’ to

the hard drive” and many of the images “were the result of unwanted spam and website


1
  Because we write primarily for parties already familiar with this case, we include only
those facts necessary to reach our conclusion.
2
  App. 22, 25–26. Loehrs further reported that one file identified by the government as
child pornography was found in the downloads folder of the file-sharing program
Morpheus, but that Loehrs did not find any evidence that Vaskas searched for, opened, or
viewed the file.
3
  App. 22, 25.

                                             2
redirection associated with the virus activity.” 4 Similar to the first report, Loehrs

concluded that some of the files “were infected with malicious viruses and Trojans

known to . . . download and install malware and fake anti-spyware” and “enabl[e] remote

hacking which could lead to unintended computer activity.”5

       When Vaskas pled guilty, he had seen the first report but not the second.6 After he

pled guilty but before sentencing, Vaskas called Loehrs—whom Cooper had since fired

and replaced—and learned of the existence of the second report. Vaskas then decided to

withdraw his guilty plea, and Cooper withdrew as counsel out of belief that withdrawing

the plea was not in Vaskas’s best interest. Vaskas’s new attorney filed a motion to

withdraw the guilty plea and argued that Cooper failed to disclose and discuss the second

report with Vaskas. The District Court denied the motion after concluding that Vaskas’s

plea was knowing and voluntary. Vaskas appealed, and we affirmed. 7

       Vaskas thereafter filed this petition for a writ of habeas corpus under 28 U.S.C. §

2255 alleging that Cooper’s assistance was ineffective. The District Court found that the

second report “reiterated the conclusion of the first report that Vaskas had done nothing

culpable.” 8 The Court also noted that Vaskas had “admitted under oath and under penalty




4
  App. 77.
5
  App. 77.
6
  Vaskas seems to have been aware that a second report was pending at the time of his
plea but did not see the actual report until after he pled guilty. However, Vaskas’s level of
knowledge about the second report does not affect our result.
7
  United States v. Vaskas, 597 F. App’x 701 (3d Cir. 2015).
8
  United States v. Vaskas, 2016 WL 1273921, at *2 (E.D. Pa. Mar. 31, 2016).

                                             3
of perjury that he was in fact guilty.”9 Accordingly, the Court denied the motion based

upon its conclusion that Vaskas’s prior counsel had not been ineffective. 10 This appeal

followed and we granted a certificate of appealability. 11

                                             II12

       To prevail on an ineffective assistance of counsel claim, a defendant must

establish two prongs: that counsel’s performance was deficient and that performance

prejudiced the defendant. 13 Deficient performance is only established when a defendant

shows “that counsel’s representation fell below an objective standard of

reasonableness.” 14 Prejudice is only established when a defendant shows “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” 15 In the context of guilty pleas, the defendant

satisfies the prejudice prong by showing “that there is a reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would have insisted on going




9
  Id.
10
   Id. at *3.
11
   Though Vaskas also brought a claim against the second attorney for ineffective
assistance of counsel, this Court only granted a certificate of appealability for the claim
against Cooper.
12
   The District Court had jurisdiction under 28 U.S.C. § 2255. We have appellate
jurisdiction under 28 U.S.C. §§ 1291 and 2253. We exercise de novo review over the
District Court’s legal conclusions and apply a clearly erroneous standard to the court’s
factual findings. United States v. Dung Bui, 795 F.3d 363, 366 (3d Cir. 2015).
13
   Glenn v. Wynder, 743 F.3d 402, 409 (3d Cir. 2014) (citing Strickland v. Washington,
466 U.S. 668 (1984)).
14
   Strickland, 466 U.S. at 688.
15
   Strickland, 466 U.S. at 694.

                                              4
to trial.” 16

         Here, Vaskas has not shown that he would have insisted on going to trial had he

known about the second report. Despite knowing there was an exculpatory expert report,

Vaskas chose to forgo trial and accept the plea agreement. 17 Vaskas asserts that he would

not have pled guilty had he known about the second report. 18 However, as the District

Court noted, the conclusion of the second report reiterated the conclusion of the first:

“that Vaskas had done nothing culpable.” 19 Although the second report included different

technical details as to how the images were stored on Vaskas’s computer, we agree that

the conclusions of the two reports were substantively the same. We therefore agree with

the District Court that Vaskas was not prejudiced by Cooper’s performance. 20


16
   Hill v. Lockhart, 474 U.S. 52, 59 (1985).
17
   In reaching our decision, we do not assume that Vaskas’s decision to plead guilty is
necessarily probative of his guilt. See North Carolina v. Alford, 400 U.S. 25, 37 (1970)
(“An individual accused of crime may voluntarily, knowingly, and understandingly
consent to the imposition of a prison sentence even if he is unwilling or unable to admit
his participation in the acts constituting the crime.”); Lafler v. Cooper, 566 U.S. 156, 185
(2012) (Scalia, J., dissenting) (“[Plea bargaining] presents grave risks of prosecutorial
overcharging that effectively compels an innocent defendant to avoid massive risk by
pleading guilty to a lesser offense . . . .”).
18
   Vaskas also argues that Cooper’s assistance was ineffective for failing to inform him of
a declaration Loehrs authored between the two reports. Appellant Br. 4. Because the
contents of the declaration mirror the second report, this argument fails for the same
reasons as discussed.
19
   Vaskas, 2016 WL 1273921, at *2.
20
   We also note that Vaskas likely could not demonstrate that Cooper’s representation was
deficient under Strickland. Cooper was only required to provide Vaskas with enough
information for Vaskas “to make a reasonably informed decision about whether to accept
the plea offer.” See Dung Bui, 795 F.3d at 367 (quoting Shotts v. Wetzel, 724 F.3d 364,
376 (3d Cir. 2013)). He clearly did: He informed Vaskas that there was expert evidence
concluding he had no knowledge of the pornographic files on his computer, and Vaskas
decided to plead guilty anyway. Cooper’s representation therefore likely was not

                                              5
Accordingly, the District Court properly found that Cooper was not ineffective for failing

to disclose the second report.

                                           III

       For the reasons stated above, we will affirm the District Court’s order denying

Vaskas’s habeas petition under 28 U.S.C. § 2255.




constitutionally deficient merely because he failed to inform Vaskas of a second report
that reached the same conclusion as the first one.

                                            6
