United States District Court, N.D. Florida, Tallahassee Division
ORDER, REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
matter is before the court upon Defendant's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. (ECF No. 65). The motion is Defendant's
second such motion, filed after he successfully challenged
counsel's alleged failure to file an appeal. (ECF Nos.
49-51). The Government responded in opposition to the instant
motion. (ECF No. 70). Defendant filed a reply, and much later
a motion to supplement. (ECF Nos. 71, 72). The case was
referred to the undersigned for the issuance of all
preliminary orders and any recommendations to the district
court regarding dispositive matters. See N.D. Fla.
Loc. R. 72.2; see also 28 U.S.C. § 636(b) and
Fed.R.Civ.P. 72(b). After a careful review of the record and
the arguments presented, it is the opinion of the undersigned
that the § 2255 motion should be denied and that no
certificate of appealability should issue.
January 9, 2013, Defendant was charged in a two-count
indictment with receipt and distribution of child pornography
("Count One") and possession of child pornography
("Count Two"). (ECF No. 1). He pleaded guilty to
Count One of the indictment on March 21, 2013, pursuant to a
written plea agreement and statement of facts. (ECF Nos.
13-15).According to the statement of facts,
state law enforcement executed a search warrant on
Defendant's home after an internet service provider
supplied information that a Tallahassee, Florida, subscriber
was sending and/or receiving child pornography
images. After Defendant was read his
Miranda rights, he admitted that he knew that the
officers were there because he had downloaded child
pornography. He explained that he was sexually aroused by
children between infancy and fourteen years old, but that he
had not acted on these urges. Forensic examination revealed
approximately 6000 images of child pornography within a
"hidden" directory on Defendant's computer,
including children under the age of 12 engaged in sexual
intercourse. A separate directory labeled "friends"
contained non-pornographic images of what appeared to be
local children to whom Defendant may have been
attracted. Defendant also admitted having received
and posted images of child pornography on a Russian-based
website and provided investigators with his username and
password for this site. (ECF No. 13 at 1-3).
Presentence Investigation Report ("PSR") calculated
Defendant's total offense level as 37. (ECF No. 19, PSR
¶¶ 18-31). This included a base offense level of
22, two two-level increases because the offense conduct
included prepubescent minors and it was facilitated by the
use of a computer, a four-level increase due to
Defendant's possession of material portraying sadistic or
masochistic conduct, and a five-level adjustment as a result
of Defendant's "trade" of the images and
videos. Defendant also received a three-level downward
adjustment for acceptance of responsibility. Defendant's
criminal history category was I. The applicable advisory
guidelines range of 210 to 262 months became 210 to 240
months due to the statutorily authorized maximum sentence.
(PSR ¶¶ 67, 68). Multiple pages of victim impact
statements were appended to the PSR (see ECF No.
19-1 at 1-49), and the defense filed letters in mitigation in
Defendant's behalf, including from his parents and one of
his daughters. (ECF No. 20).
sentencing, the court sua sponte questioned the application
of the five-level increase for the "trade" of the
images, which the Government ultimately conceded was not
applicable to Defendant's case (ECF No. 28 at 3-6). The
advisory guideline range was reduced to 121 to 151 months,
accordingly. After hearing argument from the parties, the
court imposed a below-guidelines sentence of 108 months
imprisonment, followed by a life term of supervised release.
(Id. at 23-28). The court advised Defendant of his
appellate rights (id. at 32-33), and the clerk
entered judgment on June 4, 2013. (ECF Nos. 22, 23).
did not appeal, and counsel's failure to file an appeal
was one of the claims he raised in his initial § 2255
motion. (ECF No. 30). After conducting a hearing limited to
this issue, the undersigned recommended that Defendant be
afforded a belated appeal and that the remaining claims be
dismissed without prejudice. (ECF No. 49). The district court
adopted the recommendation, and Defendant unsuccessfully
appealed. (ECF Nos. 50, 51, 63, 64). Defendant argued on
appeal that the district court committed plain error by
improperly advising him that he faced a maximum term of
supervised release of five years, instead of the applicable
life term and he was not fully aware of his rights when he
pled. (ECF No. 63). The Eleventh Circuit agreed that there
was plain error, but found that Defendant had not shown that
the error had affected his substantial rights because he had
not demonstrated that he would not have pled guilty absent
the error and the record contained no evidence of such. (ECF
No. 63 at 4).
timely filed the instant motion to vacate within a month of
the Eleventh Circuit's mandate. He raises three grounds
for relief. The Government opposes the motion in its
Standard of Review
2255 does not provide a remedy for every alleged error in
conviction and sentencing." Spencer v. United
States, 773 F.3d 1132, 1138 (11th Cir. 2014). Collateral
review is not a substitute for direct appeal, and therefore
the grounds for collateral attack on final judgments pursuant
to § 2255 are extremely limited. A prisoner is entitled
to relief under section 2255 if the court imposed a sentence
that (1) violated the Constitution or laws of the United
States, (2) exceeded its jurisdiction, (3) exceeded the
maximum authorized by law, or (4) is otherwise subject to
collateral attack. See 28 U.S.C. § 2255(a);
McKay v. United States, 657 F.3d 1190, 1194 n.8
(11th Cir. 2011). "Relief under 28 U.S.C. §2255
'is reserved for transgressions of constitutional rights
and for that narrow compass of other injury that could not
have been raised in direct appeal and would, if condoned,
result in a complete miscarriage of justice.'"
Lynn v. United States, 365 F.3d 1225, 1232 (11th
Cir. 2004) (citations omitted). The "fundamental
miscarriage of justice" exception recognized in
Murray v. Carrier, 411 U.S. 478, 496 (1986),
provides that it must be shown that the alleged
constitutional violation "has probably resulted in the
conviction of one who is actually innocent The law is well
established that a district court need not reconsider issues
raised in a section 2255 motion which have been resolved on
direct appeal. Stoufflet v. United States, 757 F.3d
1236, 1239 (11th Cir. 2014); Rozierv. United States,
701 F.3d 681, 684 (11th Cir. 2012); United States v.
Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); Mills
v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994).
Once a matter has been decided adversely to a defendant on
direct appeal, it cannot be re-litigated in a collateral
attack under section 2255. Nyhuis, 211 F.3d at 1343
(quotation omitted). Broad discretion is afforded to a
court's determination of whether a particular claim has
been previously raised. Sanders v. United States,
373 U.S. 1, 16 (1963) ("identical grounds may often be
proved by different factual allegations ... or supported by
different legal arguments ... or couched in different
language . . . or vary in immaterial respects").
a motion to vacate under section 2255 is not a substitute for
direct appeal, issues which could have been raised on direct
appeal are generally not actionable in a section 2255 motion
and will be considered procedurally barred. Lynn,
365 F.3d at 1234-35; Bousley v. United States, 523
U.S. 614, 621 (1998); McKay v. United States, 657
F.3d 1190, 1195 (11th Cir. 2011). An issue is
"'available' on direct appeal when its merits
can be reviewed without further factual development."
Lynn, 365 F.3d at 1232 n.14 (quoting Mills,
36 F.3d at 1055). Absent a showing that the ground of error
was unavailable on direct appeal, a court may not consider
the ground in a section 2255 motion unless the defendant
establishes (1) cause for not raising the ground on direct
appeal, and (2) actual prejudice resulting from the alleged
error, that is, alternatively, that he is "actually
innocent." Lynn, 365 F.3d at 1234;
Bousley, 523 U.S. at 622 (citations omitted). To
show cause for procedural default, a defendant must show that
"some objective factor external to the defense prevented
[him] or his counsel from raising his claims on direct appeal
and that this factor cannot be fairly attributable to
[defendant's] own conduct." Lynn, 365 F.3d
at 1235. A meritorious claim of ineffective assistance of
counsel can constitute cause. See Nyhuis, 211 F.3d
assistance of counsel claims generally are not cognizable on
direct appeal and are properly raised by a § 2255 motion
regardless of whether they could have been brought on direct
appeal. Massaro v. United States, 538 U.S. 500, 503
(2003); see also United States v. Franklin, 694 F.3d
1, 8 (11th Cir. 2012); United States v. Campo, 840
F.3d 1249, 1257 n.5 (11th Cir. 2016). To prevail on a
constitutional claim of ineffective assistance of counsel, a
defendant must demonstrate both that counsel's
performance was below an objective and reasonable
professional norm and that he was prejudiced by this
inadequacy. Strickland v. Washington, 466 U.S. 668,
686 (1984); Williams v. Taylor, 529 U.S. 362, 390
(2000); Darden v. United States, 708 F.3d 1225, 1228
(11th Cir. 2013). In applying Strickland, the court
may dispose of an ineffective assistance claim if a defendant
fails to carry his burden on either of the two prongs.
Strickland, 466 U.S. at 697; Brown v. United
States, 720 F.3d 1316, 1326 (11th Cir. 2013);
Holladayv. Haley, 209 F.3d 1243, 1248 (11th Cir.
2000) ("[T]he court need not address the performance
prong if the defendant cannot meet the prejudice prong, or
determining whether counsel's conduct was deficient, this
court must, with much deference, consider "whether
counsel's assistance was reasonable considering all the
circumstances." Strickland, 466 U.S. at 688;
see also Dingle v. Sec'y forDep't of Corn,
480 F.3d 1092, 1099 (11th Cir. 2007). Reviewing courts are to
examine counsel's performance in a highly deferential
manner and "must indulge a strong presumption that
counsel's conduct fell within the wide range of
reasonable professional assistance." Hammond v.
Hall, 586 F.3d 1289, 1324 (11th Cir. 2009) (quoting
Strickland, 466 U.S. at 689); see also Chandler
v. United States, 218 F.3d 1305, 1315-16 (11th Cir.
2000) (discussing presumption of reasonableness of
counsel's conduct); Lancaster v. Newsome, 880
F.2d 362, 375 (11th Cir. 1989) (emphasizing that petitioner
was "not entitled to error-free representation").
Counsel's performance must be evaluated with a high
degree of deference and without the distorting effects of
hindsight. Strickland, 466 U.S. at 689. To show
counsel's performance was unreasonable, a defendant must
establish that "no competent counsel would have taken
the action that his counsel did take." Gordon v.
United States, 518 F.3d 1291, 1301 (11th Cir. 2008)
(citations omitted); Chandler, 218 F.3d at 1315.
"[T]he fact that a particular defense ultimately proved
to be unsuccessful [does not] demonstrate
ineffectiveness." Chandler, 218 F.3d at 1314.
When reviewing the performance of an experienced trial
counsel, the presumption that counsel's conduct was
reasonable is even stronger, because "[e]xperience is
due some respect." Chandler, 218 F.3d at
establish prejudice, defendant must show that, but for
counsel's deficient performance, the outcome of the
proceeding would have been different. Strickland,
466 U.S. at 694. "The likelihood of a different result
must be substantial, not just conceivable."
Harrington v. Richter,562 U.S. 86, 112 (2011)
(quoting Strickland). For the court to focus merely
on "outcome determination, " however, is
insufficient; "[t]o set aside a conviction or sentence
solely because the outcome would have been different but for
counsel's error may grant the defendant a windfall to
which the law does not entitle him." Lockhart v.
Fretwell,506 U.S. 364, 369-70 (1993); Allen v.
Sec'y, Fla. Dep't of Corr,611 F.3d 740, 754
(11th Cir. 2010). A defendant therefore must establish
"that counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is
reliable." Lockhart, 506 U.S. at 369 (quoting
Strickland, 466 U.S. at 687). Or in the case of
alleged sentencing errors, a defendant must demonstrate that
there is a reasonable probability that, but for counsel's
errors, the result of the proceeding would have been less
harsh due ...