United States District Court, W.D. Arkansas, Fayetteville Division
MAGISTRATE JUDGE REPORT and RECOMMENDATION
R. Marschewski United States Magistrate Judge
the court is the Petitioner's Motion to Vacate, Set
Aside, or Correct a Sentence Pursuant to 28 U.S.C. Section
2255 (Doc. 54) filed July 12, 2016. The United States of
America filed a Response (Doc. 59) on August 15, 2016. The
case was reassigned to the undersigned on April 10, 2018 and
is ready for Report and Recommendation.
7, 2014, Randy BISE (“Bise”) was named in a
three-count Indictment filed in the United States District
Court for the Western District of Arkansas. (Doc. 1). Counts
One and Two charged Bise with Production of Child Pornography
and Count Three charged him with Possessing Child
Pornography. (PSR ¶¶ 1-3).
16, 2014, Bise appeared with counsel before the Honorable
Timothy L. Brooks for a change of plea hearing. (PSR ¶
7). A written plea agreement was presented to the Court
setting forth that Bise would agree to plead guilty to Count
One and Two of the Indictment charging him with Production of
Child Pornography as that term is defined in Title 18, United
States Code, Section 2256, in or affecting interstate and
foreign commerce by any means; all in violation of Title 18,
United States Code, Sections 2251. (PSR¶ 1). Within the
plea agreement, paragraph 10 set out the statutory range for
Counts One and Two, namely 15 to 30 years. (Doc. 16, pp.6-7).
September 15, 2014, the Probation Office filed Bise's
Final PSR with the Court. (Doc. 23). Overall the PSR
guideline calculation reflected a guideline total offense
level of 42 and criminal history category I, with an advisory
guideline range of 360 to Life (which equated to 720 months
due to the statutory max). (Doc 23, PSR, ¶ 85). The
Government lodged two objections related to the grouping of
Count 1 and 2. (See PSR Addendum) The net effect of the
Government's objections added one level to the offense
calculation, resulting in the advisory guideline range of
Life or 720 months. Prior to sentencing, both the Government
and the defendant, by and through Mr. Schisler, filed
sentencing memorandums. The defense argued on Bise's
behalf that a variance down to a sentence of the statutory
minimum of 15 years was appropriate. (Doc. 26).
November 6, 2014, Bise appeared for sentencing. (Doc. 23). At
sentencing, the Court inquired if Bise was still satisfied
with his counsel, which he indicated he was satisfied. (See
Sentencing Minutes, Doc. 27). Additionally, the Court
inquired of Bise if he and Mr. Schisler had a chance to read
and discuss the PSR. (Id.). In addressing the
outstanding objections, the Court ultimately granted the
Government's grouping objection, despite argument against
such by the defense, resulting in a guideline range of Life
(720 months). However, the Court also granted the
defendant's request for a downward variance, although not
to the extent requested in the sentencing memorandum. (See
Statement of Reasons, Doc 30). Specifically, Bise was
sentenced to 30 years imprisonment that equated to sentence
30 years less than what the guidelines recommended.
(Id.). Bise ultimately appealed his sentence.
However, the Eighth Circuit affirmed such and issued its
mandate on October 7, 2015. (Doc. 53-1).
13, 2016, Bise filed the instant Motion to Vacate, Set Aside,
or Correct a Sentence Pursuant to 28 U.S.C. § 2255 (the
“§ 2255 Motion) contending he was denied effective
assistance of counsel "during pretrial, trial, plea,
sentencing, and direct appeal proceedings". (Doc. 26, p.
Ineffective Assistance of Counsel:
Sixth Amendment of the Constitution of the United States
affords a criminal defendant with the right to assistance of
counsel. U.S. Const. amend. VI. The Supreme Court
“has recognized that ‘the right to counsel is the
right to effective assistance of counsel.' “
Strickland v. Washington, 466 U.S. 668, 698, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984) (citing McMann v.
Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 25
L.Ed.2d 763 (1970)).
defendant “faces a heavy burden” to establish
ineffective assistance of counsel pursuant to § 2255.
DeRoo v. United States, 223 F.3d 919, 925 (8th Cir.
2000); 2254. Cox v. Wyrick, 642 F.2d 222, 226
(C.A.Mo., 1981) To establish a claim of ineffective
assistance of counsel, the Defendant must satisfy the
two-part test set forth in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
under the “deficient performance” component, he
must show that his counsel “made errors so serious that
counsel was not functioning as the 'counsel'
guaranteed [him] by the Sixth Amendment.”
Strickland, 466 U.S. at 687. That showing can be
made by demonstrating that counsel's performance
“fell below an objective standard of
reasonableness.” Wiggins v. Smith, 539 U.S.
510, 522, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)(internal
under the “prejudice” component, he must
demonstrate that “there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Id. at 694. see also, i.e. United States v.
Ledezma-Rodriguez, 423 F.3d 830, 836 (8th Cir.
2005)(post-conviction relief will not be granted on a claim
of ineffective assistance of trial counsel unless the
petitioner can ...