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Simmons v. United States

United States District Court, E.D. North Carolina, Western Division

April 19, 2017



          W. Earl Britt Senior U.S. District Judge.

         This matter is before the court on the government's motion to dismiss petitioner's 28 U.S.C. § 2255 motion. (DE # 53.) Although petitioner received notice of the motion and an opportunity to respond, (DE # 55), petitioner did not file a response to the government's motion.

         In 2014, pursuant to a plea agreement, petitioner pled guilty to manufacturing child pornography in violation of 18 U.S.C. § 2251(a). Petitioner was sentenced to the statutory maximum term of imprisonment of 600 months. Petitioner appealed the court's ruling on one of his objections to the presentence report (“PSR”), and the Fourth Circuit Court of Appeals dismissed the appeal. (DE # 46.) Petitioner filed a petition for a writ of certiorari, which the Court denied on 5 October 2015.

         Petitioner filed his § 2255 motion on 11 October 2016. (DE # 49.) In response, the government filed the instant motion to dismiss. Pursuant to Federal Rule of Civil Procedure 12(b)(6), the government contends that petitioner has failed to state any claim entitling him to relief.

It is well established that a motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint, and that the legal sufficiency is determined by assessing whether the complaint contains sufficient facts, when accepted as true, to “state a claim to relief that is plausible on its face.” This plausibility standard requires only that the complaint's factual allegations “be enough to raise a right to relief above the speculative level.” Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015) (citations omitted). This same standard applies equally to a Rule 12(b)(6) motion challenging a § 2255 motion. See Walker v. Kelly, 589 F.3d 127, 138-39 (4th Cir. 2009) (recognizing that the standards of Rule 12(b)(6) apply to the government's motion to dismiss a habeas corpus motion under 28 U.S.C. § 2254).

         Petitioner asserts the following claims for relief: (1) his plea was not knowing and voluntary; (2) counsel was ineffective in failing object to the sadomasochistic and distribution sentencing guideline enhancements; and (3) counsel was ineffective for failing to present an argument at sentencing based on “the policy disagreement inherent in the sentencing guideline applied to” petitioner. (Mot., DE # 49, at 6.) The court considers these claims in turn.

         Petitioner first contends that his plea was not knowing and voluntary because he did not know that the government was required to prove that the sexual acts in which he and the victim engaged were for the purpose of producing the images of those acts. He argues that his “intent in having sex with the victim was for the purpose of enjoying each other physically.” (Mem., DE # 49, at 13.) He claims, had he been informed that the government had to prove the purpose of his sexual activity with the victim was to produce the images, he would not have pled guilty and would have proceeded to trial.

The standard for determining whether a guilty plea is constitutionally valid is whether the plea “represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); see Burket v. Angelone, 208 F.3d 172, 190 (4th Cir. 2000). Such an evaluation requires the court to examine “the totality of the circumstances surrounding the guilty plea.” Burket, 208 F.3d at 190. A defendant is bound by the representations he made in the plea colloquy, unless he presents clear and convincing evidence to the contrary. See Walton v. Angelone, 321 F.3d 442, 462 (4th Cir. 2003).

United States v. Mattocks, 408 F.App'x 717, 718-19 (4th Cir. 2011).

         One of the elements the government is required to prove to establish a violation of § 2251(a) is “production of a visual depiction was a purpose of engaging in the sexually explicit conduct.” United States v. Palomino-Coronado, 805 F.3d 127, 130 (4th Cir. 2015) (citing 18 U.S.C. § 2251(a)). Petitioner's plea agreement sets forth that element. (DE # 25, at 3.) At his plea hearing, after having been duly sworn, petitioner testified that his signature appeared at the bottom of the plea agreement. (6/2/14 Tr., DE # 44, at 14.) He further testified that prior to signing it, he read the document and went over it with his counsel. (Id.) Petitioner acknowledged that he understood its contents. (Id.) The court summarized the terms of the plea agreement, which petitioner stated was fair and accurate. (Id. at 15-18.) The court asked petitioner,

Did you, as charged in count one of this indictment, on or about July 2013, in this district, attempt to and did employ, use, persuade, induce, entice, and coerce a minor, whose identity is known to the grand jury, to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct involving anal penetration, and these visual depictions were produced using materials that had been mailed, shipped and transported in interstate commerce?

(Id. at 18 (emphasis added).) Petitioner responded, “Yes, your honor.” (Id.) Petitioner's testimony at the plea hearing, by which he is bound, see United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005), confirms that he was well aware of the nature of the charge to which he pled guilty, including its intent requirement, and that he freely and voluntarily entered his plea of guilty. Therefore, petitioner is not entitled to relief on his first claim.

         Petitioner's two remaining claims allege ineffective assistance of counsel.

To establish a claim of ineffective assistance of counsel, a defendant must show (1) that “counsel's performance was deficient, ” and (2) that “the deficient performance prejudiced the defense.” To satisfy the deficiency prong, the defendant must show that counsel's performance “fell below an objective standard of reasonableness.” “Judicial scrutiny of counsel's performance must be highly deferential.” There is a “strong presumption that counsel's conduct falls within the wide range of reasonable ...

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