United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
Timothy L. Brooks, United States District Judge.
before the Court is the Report and Recommendation
("R&R") (Doc. 67) of the Honorable James R.
Marschewski, United States Magistrate Judge for the Western
District of Arkansas, filed in this case on January 31, 2019.
The Magistrate Judge recommends dismissal of Petitioner Scott
Sholds's Motion to Vacate, Set Aside or Correct a
Sentence pursuant to 28 U.S.C. § 2255. In his objections
(Doc. 70), Sholds argues that the Magistrate Judge erred in
determining that Sholds's production of four separate
videos of child pornography constituted four separate
offenses instead of a "continuing offense" that
occurred "in rapid succession." (Doc. 70 at 1).
Sholds also objects to the Magistrate Judge's finding
that attorney John Schisler was not ineffective when he
failed to file a "motion of multiplicity counts"
and a motion to suppress a statement that Sholds made to
investigators, allegedly in violation of his Miranda
rights. Finally, Sholds argues that the Court abused its
discretion in imposing a particular condition of supervised
release. Id. at 2-3.
light of the objections to the R&R, the Court has
undertaken a de novo review of the record,
and after doing so, finds that the objections offer neither
fact nor law justifying deviating from the Magistrate
Judge's recommendation. Accordingly, the R&R will be
ADOPTED IN ITS ENTIRETY.
OBJECTIONS 1 AND 3
Sholds' first and third objections, he contends that his
attorney was ineffective because he failed to object to the
Indictment's four separate counts of production of child
pornography. On direct appeal, the Eighth Circuit 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 is
well settled that claims which were raised and decided on
direct appeal cannot be relitigated on a motion to vacate
pursuant to 28 U.S.C. § 2255." United States v.
Shabazz, 657 F.2d 189, 190 (8th Cir. 1981). Accordingly,
Objections 1 and 3 are OVERRULED.
second objection, Sholds contends his attorney was
ineffective because he failed to file a motion to suppress a
statement that Sholds made to law enforcement that allegedly
violated his Miranda rights. (Doc. 70 at 5). To
successfully assert a claim for ineffective assistance of
counsel, a petitioner must meet both components of the
two-part test found in Strickland v. Washington, 466
U.S. 668, 687 (1984). The petitioner must first demonstrate
that "counsel's performance was deficient."
Id. Second, the petitioner "must show the
deficient performance prejudiced the defense."
Id. Failure to file a motion to suppress "what
is essentially the only evidence against a Petitioner can be
sufficient to establish a lack of diligence on the part of
the attorney if the motion would have succeeded."
United States v. Johnson, 707 F.2d 317, 320 (8th
Sholds explains that during an early interaction with law
enforcement around the time of his arrest, "[w]hen the
Petitioner requested an attorney, Miranda was
invoked and an attorney should have been provided to consult
with him." (Doc. 70 at 2). He argues that counsel's
failure to move to suppress these statements to law
enforcement constitute ineffective assistance of counsel,
id. at 2. The Magistrate Judge points to the fact
that Sholds attempted "to reinitiate contact with the
officer," an act that would have permitted police to
resume questioning Sholds. (Doc. 67 at 9). Sholds objects to
this characterization of his interview with police and
maintains that he did not reinitiate contact with officers.
(Doc. 70 at 1).
claim for ineffective assistance of counsel cannot succeed
without him demonstrating that the alleged deficient
performance would have actually prejudiced him.
Strickland, 466 U.S. at 687. Even operating under
the assumption that Mr. Schisler's failure to file a
motion to suppress Sholds's statements was
"deficient," there is nothing in the record to
suggest that this lack of action actually prejudiced
Sholds's decision to plead guilty. Even without the
statement in question, the Government still had a
considerable amount of independent evidence sufficient to
convict Sholds. For example, the four videos of child
pornography that were the subject of the Indictment featured
a male voice with a northern accent, which several witnesses
identified as Sholds's voice. (Doc. 67 at 18; Doc. 22 at
5). Further, Sholds's distinctly deformed finger appeared
in at least one of the videos. Id. The child
victim's mother placed Sholds with the victim at the time
the videos were created, and the male voice in the videos
used the child's nickname. (Doc. 67 at 18). Mr. Schisler
referred to all this evidence as "damning" and
"was convinced a jury would conclude it was the
Defendant's voice on the videos and that was something
Mr. Sholds and I discussed." Id.
as Sholds has failed to meet the two-part Strickland
test for ineffective assistance, Objection 2 is
fourth objection, Sholds argues that the special condition
imposed by the Court limiting his internet, computer, and
electronic device usage while on supervised release "is
overly restrictive" because "the Petitioner never
used the internet in the commission of the offense."
(Doc. 70 at 3). Sholds believes the Court abused its
discretion in imposing the internet restriction as part of
the sentence. However, when Sholds directly appealed his
sentence to the Eighth Circuit, he failed to raise the issue
of the appropriateness of this particular condition of
supervised release. A defendant who fails to raise a claim
that could have been raised on direct appeal is procedurally
defaulted from raising the claim in a collateral attack
pursuant to § 2255. Matthews v. United States,
114 F.3d 112, 113 (8thh Cir. 1997). "This procedural
default may be excused only if the petitioner 'can show
both (1) a cause that excuses the default, and (2) actual
prejudice from the errors that are asserted.'"
Id. (quoting United States v. Frady, 456
U.S. 152, 167-68(1982)).
Motion to Vacate (Doc. 38 at 8) and in Objection 4 to the
R&R, Sholds argues that the Court's imposition of the
internet restriction as a special condition of supervised
release is unconstitutional. However, he fails to state any
cause that would excuse his failure to raise this objection
on direct appeal, and he also fails to explain what actual
prejudice he would suffer If this condition were imposed. He
simply cites to the condition and maintains it should not
apply to him in light of the nature of his particular crimes.
The Court finds that this objection was procedurally
defaulted, and it should be overruled on that basis alone.
even if the Court were to address the objection on the
merits, Sholds would not be entitled to relief. Sholds was
convicted of conduct that extended far beyond simple
possession of child pornography. He pleaded guilty to four
counts of production of child pornography and one count of
possession. (Doc. 16). He produced videos of child
pornography on an electronic device: a cell phone. He also
possessed still images of child pornography on that device. A
district court has broad discretion to order special
conditions of supervised release if each condition: 1) is
reasonably related to the sentencing factors set forth in 18
U.S.C. § 3553(a); 2) involves no greater deprivation of
liberty than is reasonably necessary for the purposes set
forth in § 3553(a); and 3) is consistent with any
pertinent policy statements issued by the Sentencing
Commission. United States v. Bender,566 F.3d 748,
751 (8th Cir. 2009) (quotation and citation omitted). Here,