United States District Court, W.D. Arkansas, Fayetteville Division
MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION
JAMES
R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE.
Before
the court is the Petitioner's Motion to Vacate, Set
Aside, or Correct a Sentence Pursuant to 28 U.S.C. Section
2255 (Doc.38) filed October 16, 2017. The Petitioner filed
his Memorandum Brief (Doc. 47) on January 22, 2018. The
United States of America filed a Response (Doc. 50) on March
13, 2018. The matter was reassigned to the undersigned on
April 10, 2018. An order appointing counsel and setting the
matter for an evidentiary hearing was entered on July 2, 2018
(Doc. 57) and an Evidentiary Hearing was conducted on
December 18, 2018.
I.
Background
On or
about May 7, 2014, Scott Sholds was named in a five-count
Indictment filed by a Federal Grand Jury in the Western
District of Arkansas. The Indictment charged Sholds with four
counts of Production of Child Pornography in violation of 18
U.S.C. §§ 2251(a) and (e); and one count of
Possessing Child Pornography, in violation of 18 U.S.C.
§§ 2252A(a)(5)(B) and (b)(2). (DCD 22 p. 3;
“PSR” ¶ 1). On July 14, 2014, the Petitioner
entered into a Plea Agreement (Doc. 16) and appeared with his
attorney before the Honorable Timothy L. Brooks and pleaded
guilty to all counts of the indictment. (Id.). After
the defendant changed his plea, the district court ordered a
Presentence Report (Doc. 17) which was completed on September
15, 2014. The Court sentenced the defendant 960 months, 25
years of supervised release, and a special assessment fee.
Id. The judgment in this case was filed on November
7, 2014. (Doc. 27).
A
notice of appeal was filed thereafter on November 19, 2014.
(DCD 29). On or about February 4, 2015, Federal Defenders
Jack Schisler and Angela Pitts submitted a brief on Sholds
behalf challenging the substantive reasonableness of the
sentence. (United States v. Sholds, 8th Circuit,
Brief for Appellant, Case number 14-3720). Thereafter the
Government submitted a timely response. Ultimately, the
Eighth Circuit affirmed such and issued its mandate on
October 13, 2016. (DCD 37). In its opinion, the Eighth
Circuit noted Sholds committed “four separate offenses
when he decided to create four video recordings. It was not
unreasonable for the court to hold Sholds accountable for
that choice by sentencing him within the greater statutory
maximum allowed by the four convictions.” United
States v. Sholds, 827 F.3d 758, 760 (8th Cir. 2016).
On
October 16, 2017 the Petitioner filed the current motion
contending: Ground One-Ineffective Assistance of Counsel for
failure to file certain motions (Doc. 38, p. 4); Ground
Two-Ineffective Assistance of Counsel for failure to file
motion to suppress statement (Id., p. 5); Ground
Three-Failure to file Motion concerning multiplicity of
counts (Id., p. 6); Ground Four-Abuse of Discretion
by the court. (Id., p. 7). An order appointing
counsel and setting the matter for an evidentiary hearing was
entered on July 2, 2018 (Doc. 57) and an Evidentiary Hearing
was conducted on December 18, 2018. During the hearing the
Petitioner raised the additional issue of his competency.
II.
Discussion
A.
Ineffective Assistance of Counsel
The
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
Dhas 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)).
A
defendant “faces a heavy burden” to establish
ineffective assistance of counsel pursuant to Section 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).
First,
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
citations omitted.
Second,
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 show not only that counsel's performance
was deficient but also that such deficient performance
prejudiced his defense).
To
satisfy this “prejudice” prong, Defendant must
show “that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different . . . a reasonable
probability [meaning] a probability sufficient to undermine
confidence in the outcome.” U.S. v. Rice, 449
F.3d 887 at 897 (internal quotations omitted). Thus, it is
not sufficient for a defendant to show that the error had
some “conceivable effect” on the result of the
proceeding because not every error that influences a
proceeding undermines the reliability of the outcome of the
proceeding. Morales v. Ault, 476 F.3d 545 (8th
Cir.2007) (citing Odem v. Hopkins, 382 F.3d 846, 851
(8th Cir.2004)). Additionally, actual prejudice does not
exist where a petitioner, at best, suffers the mere
possibility of prejudice. See Wainwright v. Torna,
455 U.S. 586, 587-88 (1982); Prewitt v. United
States, 83 F.3d 812, 819 (7th Cir.1996) (mere
possibility does not equal actual prejudice). Although the
two prongs of the “ineffective assistance”
analysis are described as sequential, courts “do not .
. . need to address the performance prong if petitioner does
not affirmatively prove prejudice.” Boysiewick v.
Schriro, 179 F.3d 616, 620 (8th Cir.1999).
Also,
to the extent that Petitioner's claims arise out the plea
process, he must show a reasonable probability that, but for
counsel's errors, he would not have pled guilty and would
have insisted on going to trial. See Strickland, 466
U.S. at 688; United States v. Prior, 107 F.3d 654,
661 (8th Cir. 1997).
Ground
One: Ineffective Assistance regarding Multiplicity of Claims
and Improper Sentence:
The
Petitioner contends, pursuant to his brief, that his attorney
was ineffective for failing to contest the multiple counts
filed by the government because all of the pornographic
videos were taken within “less than a five minute
period.” (Doc. 47, p. 7).
In this
case, the federal violation under section 2251 is the using
of a minor to produce an image amounting to child
pornography. See United States v. Esch, 832 F.2d
531, 542 (10th Cir. 1987)(multiple photographs of the same
minor taken during the same session constitutes separate
counts under 18 USC 2251a)). It is clear both from the plea
agreement and the PSR that each time Sholds stopped and
started the video, he used the minor to create distinct
images and therefore committed multiple offenses as charged
in the indictment.
The
8th Circuit Court of Appeal held that
“Sholds committed four separate offenses when he
decided to create four video recordings. It was not
unreasonable for the court to hold Sholds accountable for
that choice by sentencing him within the greater statutory
maximum allowed by the four convictions.” United
States v. Sholds, 827 F.3d 758, 760 (8th Cir. 2016) It
would have been an exercise in futility for the
Petitioner's attorney to have filed and pursued a motion
to contest the validity of the government's charges. It
cannot be ineffective assistance not to raise a meritless
argument. Larson v. U.S., 905 F.2d 218, 219 (C.A.8
(Minn.), 1990).
At the
hearing the Petitioner contends his attorney was ineffective
for failing to have the videos forensically evaluated to
determine if it had originally been a single video which had
been broken up into several videos. There is nothing in the
evidence to suggest that the videos on the phone in question
were tampered with in any way and the Petitioner's
attorney testified that the videos all had different
perspective and camera angles. Vague and conclusory
allegations are not sufficient to state a ground for relief
under 28 U.S.C. Sec. 2255. See Hollis v. United
States, 796 F.2d 1043, 1046 (8th Cir.). See also
Smith v. United States, 677 F.2d 39, 41 (8th Cir.1982)
(conclusory allegations, unsupported by any specifics, are
subject to summary dismissal). The subsequent presentation of
conclusory allegations unsupported by specifics is subject to
summary dismissal . . . Blackledge v. Allison, 431
U.S. 63, 74 (1977); Voytik v. United States, 778
F.2d 1306, 1308 (8th Cir.1985); see also Carpenter v.
United States, 720 F.2d 546, 548 (8th Cir.1983)
(conclusory allegations are insufficient to rebut the
presumption of competency granted to defense counsel).
The
Petitioner also contends that his attorney was ineffective
for failing to object to the portion of his judgment that
provides that upon release from prison one of the special
conditions of supervision required that “Except for
purposes of employment, the defendant shall not possess, use
or have access to a computer or any other electronic device
that has internet or can store visual images, without prior
written approval of the U.S. Probation Office.” (Doc.
27, p. 4, ¶4).
The
restriction on internet use was not a complete ban but a
restriction. (See United States v. Fields, 324 F.3d
1025, 1027 (8th Cir.2003). He was allowed internet and
computer use for employment purposes but had to have
permission from the probation office for personal use. See
United States v. Kain, 589 F.3d 945, 951 (8th Cir.
2009). Mr. Schisler testified that he and his office had
handled several specific appeals dealing with the terms of
restricted internet use by probationers and that more
restrictive terms had been upheld by the appeal court. It
cannot be ineffective assistance not to raise a meritless
argument. Larson v. U.S., 905 F.2d 218, 219 (C.A.8
(Minn.), 1990).
The
Petitioner has also raised ineffective claims for his
attorney's failure to move to suppress his statements.
This issue, however, is also ...