United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.
before the Court are Objections to the Magistrate Judge's
Report and Recommendation (Doc. 74) filed by
Defendant/Petitioner Glen Baughman in this case. On October
11, 2016, Mr. Baughman filed a Motion to Vacate, Set Aside,
or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc.
58). The Government responded on November 11, 2016, (Doc.
62), to which Mr. Baughman filed his Reply on January 6,
2017, (Doc. 65). Magistrate Judge Wiedemann issued her
Report and Recommendation ("R&R") denying Mr.
Baughman's Motion in full on June 8, 2018 (Doc. 71). Mr.
Baughman subsequently filed his Objections thereto,
requesting dismissal of the R&R and an evidentiary
hearing to present his claims. (Doc. 74).
defendant makes specific objections to portions of a
magistrate judge's report and recommendation, the
district court must review the contested findings or
recommendations de novo. See 28 U.S.C. §
636(b)(1). The court may then "accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge." Id. Here, Mr.
Baughman objected to the R&R on two grounds. As such, the
Court has undertaken a de novo review of the
Defendant's objections and rules on each in turn.
Baughman originally asserted six separate grounds for relief
in his Brief in Support of his Motion to Vacate. (Doc. 59).
The R&R addresses these claims individually, and two of
them are the subject of Mr. Baughman's Objections
addressed below. Mr. Baughman's first objection concerns
his counsel's alleged ineffective assistance as to three
events, each of which occurred prior to Mr. Baughman deciding
to enter a guilty plea. His second and final objection
alleges further ineffective assistance during Mr.
Baughman's sentencing. For the reasons provided below,
both of Mr. Baughman's objections to the R&R are
OVERRULED because neither can overcome the
two-part test laid out in Strickland v. Washington,
466 U.S. 668, 687 (1984).
Alleged Ineffective Assistance Occurring Prior to Guilty
entering a guilty plea, the focus of collateral attack is
limited to the nature of counsel's advice and the
voluntariness of the plea. See Bass v. United
States, 739 F.2d 405, 406 (8th Cir. 1984) (citing
Tollett v. Henderson, 411 U.S. 258, 266 (1973)). To
prevail on a claim of ineffective assistance of counsel, a
defendant must prove not only that his attorney's
performance was deficient, but that he was prejudiced by that
deficiency. Strickland, 466 U.S. at 687. In the
context of a guilty plea, a defendant asserting ineffective
assistance of counsel must prove that he would not have
pleaded guilty absent his attorney's errors. United
States v. Prior, 107 F.3d 654, 661 (8th Cir. 1997). The
ultimate focus when determining this issue is the
"fundamental fairness of the proceeding whose result is
being challenged." Id. at 696.
basic principle governing Mr. Baughman's claim is that
"a guilty plea represents a break in the chain of events
which has preceded it in the criminal process." 7b//etf,
411 U.S. at 267. Furthermore,
When a criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is
charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that
occurred prior to the entry of a guilty plea. He may only
attack the voluntary and intelligent character of the guilty
plea by showing that the advice he received from counsel was
not within the standard.
Baughman argues that his guilty plea was not knowing or
voluntary due to ineffective assistance of counsel. In
asserting his claim, Mr. Baughman points to his counsel's
failure to investigate: (1) the nature of the search of his
bedroom, (2) the nature of his interview with law enforcement
prior to that search, and (3) the sufficiency of the
Government's evidence identifying the minor named in
Count 2 of Mr. Baughman's Indictment. He argues that
each event falls below the objective standard of
reasonableness for effective assistance and prejudiced his
case by pressuring him to seek a plea agreement rather than
proceed to trial (Doc. 74, p. 2).
the Court finds that neither counsel's advice against
pursuing suppression of evidence gathered from the search of
Mr. Baughman's room nor counsel's decision to forgo a
motion to dismiss one of his felony counts indicates
deficient performance or resulted in prejudice. Nothing in
the record suggests that Mr. Baughman's property seized
from his room could have been suppressed. As the Presentence
Investigation Report ("PSR") reveals, a federal
search warrant was issued after a special agent
("SA") with the Internet Crimes Against Children
Task Force downloaded more than two thousand images of child
pornography using file sharing software from a computer the
SA traced back to the residence where Mr. Baughman was
residing. Mr. Baughman contends that he was a renter and
therefore maintained a reasonable expectation of privacy
which required the police to obtain a separate warrant to
search his room inside the house. The record contradicts Mr.
Baughman's assertion that he was a renter, see
Doc. 62-1, p. 1. Law enforcement searched the home where Mr.
Baughman was residing only after securing a valid search
warrant, which rendered the search entirely reasonable. As
the warrant relied upon by law enforcement was based on
sufficient probable cause, Mr. Baughman's Fourth
Amendment rights were not violated, and any challenge to the
contrary on the part of his attorney would have been futile.
Baughman also argues that his counsel was deficient for not
moving to dismiss the second count of his indictment because
there was insufficient evidence of the identity of the minor
(Doc. 74, p. 2). He asserts that when conferencing with
counsel, it was Mr. Baughman's position that a
mother's identification alone would be insufficient to
identify the victimized minor. This argument was premised on
Mr. Baughman's belief that a mother could not identify
her child when presented with an image that only displayed
the child's genitalia.
counsel's alleged "failure" to move to dismiss
the indictment does not rise to the level of deficient
representation. "Often the interests of the accused are
not advanced by challenges that would only delay the
inevitable date of prosecution . . . ."
Tollett, 411 U.S. at 266 (citing Brady v. United
States397 U.S. 742, 751-752 (1970)). Furthermore, the
entry of a guilty plea bars any allegation that a defense
attorney failed to file certain motions or make other
challenges prior to the entry of that plea. Id. at
267. It is the job of attorneys to advise their clients on
the merits of various potential arguments and, at times, to
dissuade them from pursuing losing ones. Mr. Baughman's