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Read v. United States

United States District Court, M.D. Florida, Fort Myers Division

May 21, 2018


          OPINION AND ORDER [1]


This case is before the Court on Petitioner Michael Read's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 1; Cr-Doc. 91)[2] and Memorandum of Fact and Law in Support (Doc. 2; Cr-Doc. 91-1) filed June 12, 2017. The United States filed a Response in Opposition to the Motion (Doc. 8) on September 7, 2017, to which Read filed a Reply (Doc. 12) on November 7, 2017. On February 12, 2018, Read filed a Motion for Evidentiary Hearing (Doc. 13; Cr-Doc. 92). For the reasons set forth below, Read's § 2255 motion is denied.


         On February 4, 2015, a federal grand jury returned a two-count Indictment (Cr-Doc. 1) against Read. Count One charged Read with possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). Count Two charged Read with distribution of child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1). On July 28, 2015, Read pled guilty to both counts without the benefit of a plea agreement. (Cr. Docs. 42, 79). On November 2, 2015, the Court varied below the Guidelines range and sentenced Read to 120 months in prison followed by a life term of supervised release. (Cr-Doc. 54 at 2-3).[3] Judgment was entered on November 3, 2015. (Cr-Doc. 54).[4] After being granted leave of Court, Read filed a Notice of Appeal on January 5, 2016. (Cr-Doc. 60). On February 12, 2016, the Court granted counsel's motion to withdraw and appointed the Federal Public Defender for appeal purposes. (Cr-Doc. 69). On June 8, 2016, pursuant to Read's motion for voluntary dismissal, the Eleventh Circuit dismissed Read's appeal. (Cr-Doc. 90 at 2). Relying upon the date in the certificate of service (June 7, 2017), the United States concedes that Read's § 2255 motion is timely. (Doc. 8 at 3, 10). The Court agrees.[5]


         A. Grounds Presented for Review

         Liberally construing Read's pleadings and as more fully developed below, [6] Read raises three separate grounds of constitutionally ineffective assistance of counsel in his § 2255 motion. (Doc. 1, Doc. 2). In Ground One, Read asserts counsel was ineffective for failing to present evidence of Read's efforts to ensure he did not distribute child pornography. (Doc. 1 at 4, Doc. 2 at 1-2). In Ground Two, Read claims counsel rendered ineffective assistance when counsel failed to negotiate a plea agreement to his benefit or follow up on “possible defense strategies.” (Doc. 1 at 5, Doc. 2 at 3-5). In Ground Three, Read faults counsel for failing to “present evidence regarding six events of Search and Seizure on [Read's] computers and network for which neither Warrant, Court Order, nor Notice was issued.” (Doc. 1 at 7, Doc. 2 at 5-7).

         B. Evidentiary Hearing Standard

         The governing statute requires that the district court shall hold an evidentiary hearing “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). “If the petitioner alleges facts, that if true, would entitled him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim.” Griffith v. United States, 871 F.3d 1321, 1329 (11th Cir 2017) (quoting Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002)). A petitioner need only allege, not prove, nonconclusory facts that would entitled him to relief. Id. If, however, the allegations are “affirmatively contradicted by the record” and “patently frivolous, ” the court is not required to hold an evidentiary hearing. Id. Nor is the court required to hold a hearing where the claims are “conclusory allegations unsupported by specifics.” Allen v. Sec'y, Fla. Dep't of Corr., 611 F.3d 740, 745 (11th Cir. 2010), cert. denied, 563 U.S. 976 (2011). To merit an evidentiary hearing on an ineffective assistance of counsel claim, a petitioner must allege specific facts that would show (1) that counsel performed deficiently and (2) this deficient performance prejudiced the petitioner. Griffith v. United States, 871 F.3d 1321, 1329 (11th Cir. 2017).

         As more fully set forth below, the Court finds the claims are refuted by the record, and/or that petitioner cannot make the necessary showing that counsel was deficient, and/or that he was prejudiced by counsel's alleged deficient performance. Consequently, the Court finds an evidentiary hearing is not required in this case.

         C. Effect of Guilty Plea

         As noted supra, Read entered a counseled guilty plea to both counts of the Indictment. “A defendant who enters a plea of guilty waives all nonjurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained.” Wilson v. United States, 962 F.2d 996, 997 (11th Cir.1992). Thus, when a § 2255 motion is filed collaterally challenging convictions obtained pursuant to guilty pleas, “the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569 (1989). Alternatively, “[a] guilty plea is open to attack on the ground that counsel did not provide the defendant with ‘reasonably competent advice.'” Cuyler v. Sullivan, 446 U.S. 335, 344 (1980) (quoting McMann v. Richardson, 397 U.S. 759, 770 (1970)).

         Notably, “the representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Indeed, “when a defendant makes statements under oath at a plea colloquy, he bears a heavy burden to show his statements were false.” United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988) (citations omitted). Thus, conclusory allegations that are not supported by specific facts and contentions that are refuted by the record are subject to summary dismissal. Blackledge 431 U.S. at 74.

         D. Ineffective Assistance of Counsel

         The Supreme Court has held “that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985). To succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate both that: (1) counsel's performance was deficient and (2) petitioner suffered prejudice because of counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). For the first element, a petitioner must show that “he received advice from counsel that was not within the range of competence demanded of attorneys in criminal cases.” Scott v. United States, 325 Fed.Appx. 822, 824 (11th Cir. 2009) (citing Hill, 474 U.S. at 56-57)). The Eleventh Circuit has held that “counsel owes a lesser duty to a client who pleads guilty than to one who decides to go to trial . . . and . . . need only provide his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between” pleading guilty or “going to trial.” Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984) (citation omitted); see alsoStano v. Dugger, 921 F.2d 1125, 1151 (11th Cir. 1991). “To impart such an understanding to the accused, counsel must, after making an independent examination of the facts, circumstances, pleadings and laws involved, offer his informed opinion as to the best course to be followed in protecting the interests of his client.” Wofford, 748 F.2d at 1508. (citation omitted). Performance is “measured against an objective standard of reasonableness under the prevailing professional norms.” Rompilla v. Beard, 545 U.S. 374, 381 (2005) (internal quotation marks and citations omitted).

         To satisfy the second requirement in the context of a guilty plea, “the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. 52 at 59; see also Lee v. United States, 582 U.S.___, 137 S.Ct. 1958, 1965 (2017). A court considers whether the petitioner had a fruitful defense at trial, see Hill, at 59, keeping in mind that, counsel is not required to raise a meritless claim. United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992). While stressing that the focus is on the petitioner's decision-making and rejecting a per se rule that a defendant with no viable defense cannot show prejudice, the Supreme Court nonetheless cautions that “[c]ourts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies.” Lee v. United States, 137 S.Ct. at 1966-67. If a petitioner fails to satisfy either Strickland prong, his claim fails and the court need not address both prongs. See Strickland, 466 U.S. at 697.

         1. Ground One

         Read attributes ineffectiveness to trial counsel for failing to present evidence regarding Read's efforts to ensure he did not distribute child pornography. (Doc. 1 at 4). Read claims that his “system was designed so that no file could be shared and therefore he did not and could not distribute [child] pornography.” (Doc. 1 at 4). Read alleges that counsel was aware of this information but failed to present it to the Court. (Id.) While conceding that he had no defense to possession of child pornography if he went to trial, Read argues that there is a “reasonable probability” that the distribution count would have been dismissed and he would have received a lesser sentence. (Doc. 2 at 2). The Government responds that Ground One of Read's motion is without merit, because Read knowingly and voluntarily admitted at the change of plea colloquy to using file sharing programs on his computer that permitted public access to the child pornography. (Doc. 8 at 15).

         The record conclusively shows that Read entered a knowing and voluntary guilty plea. During the plea colloquy, the Court asked Read questions and ensured that he understood his charges, consequences of his plea, and the rights he was waiving. (Cr-Doc. 79 at 4-5, 11-12). Read told the Court that he understood the proceedings. (Id.). He stated that he had no mental condition and was not impaired by medication. (Id. at 5-8). Thus, based upon the record, the Court finds that Read's plea was knowing and voluntary, and Read does not appear to suggest otherwise in his motion. (See generally Doc. 1). To the extent that Read argues that his plea was not knowing and voluntary based upon his alleged diagnosis of “OCD and obvious hoarding mental defect” or that the Court improperly failed to consider this alleged mental defect in sentencing Read as intimated in his Reply, the Court finds these claims (and any other claims raised for the first time in his Reply) waived. See Oliveiri v. United States, 717 Fed.Appx. 966, 966 (11th Cir. 2018) (citing Conn. State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1351 n.11 (11th Cir. 2009); United States v. Evans, 473 F.3d 1115, 1120 (11th Cir. 2006)).

         Here, the record conclusively refutes Read's claim that trial counsel was ineffective for failing to present evidence that Read was not guilty of the distribution charge in Count 2 of the Indictment. Prior to accepting Read's guilty plea, the following exchange took place between the Court and Read regarding the necessary elements of Count Two of the Indictment that charged Read with distribution of child pornography, including that Read “knowingly distributed” the images:

THE COURT: The essential elements of Count 2 are as follows: First, the defendant knowingly distributed a visual depiction; second, the depiction was shipped or transported in interstate or foreign commerce, by any meaning, including computer; third, producing the visual depiction involved using a minor in sexually explicit conduct; fourth, the depiction is of a minor engaged in sexually explicit conduct; and, fifth, the defendant knew that at least one performer in the visual depiction was a minor and knew the depiction showed the minor engaged in sexually explicit conduct. Sir, do you understand the elements of the charges that the United States would have to prove beyond a reasonable doubt for you to be convicted?
THE COURT: Do you have any questions ...

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