United States District Court, E.D. North Carolina, Western Division
Earl Britt Senior U.S. District Judge.
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.
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.
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).
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.
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).
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
(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.
two remaining claims allege ineffective assistance of
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