United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
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) 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.
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). Judgment was entered on November 3,
2015. (Cr-Doc. 54). 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
Grounds Presented for Review
construing Read's pleadings and as more fully developed
below,  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).
Evidentiary Hearing Standard
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).
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.
Effect of Guilty Plea
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)).
“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.
Ineffective Assistance of Counsel
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).
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.
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
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)).
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 DEFENDANT: I do.
THE COURT: Do you have any questions ...