United States v. Sholds

          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 8^th 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 ...