United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on petitioner's motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255, (DE 48), and the government's motion to
dismiss, (DE 52). Pursuant to 28 U.S.C. § 636(b)(1)(B),
United States Magistrate Judge Kimberly A. Swank entered
memorandum and recommendation (“M&R”),
(M&R (DE 69)), wherein it is recommended that the court
deny petitioner's motion and grant respondent's
motion. Petitioner timely filed objections to the M&R,
and in this posture, the issues raised are ripe for ruling.
For the reasons that follow, the court adopts the
recommendation of the M&R, denies petitioner's
motion, and grants respondent's motion.
January 13, 2016, pursuant to a written plea agreement,
petitioner pleaded guilty to one count of receipt of child
pornography, in violation of 18 U.S.C. § 2252(a)(2). The
court sentenced petitioner on May 4, 2016, to 97 months'
imprisonment and a lifetime of supervised release. Petitioner
appealed his sentence to the United States Court of Appeals
for the Fourth Circuit. On November 7, 2016, the Fourth
Circuit dismissed petitioner's appeal in part and
otherwise affirmed the judgment. United States v.
Pepke, 662 Fed.Appx. 225, 226 (4th Cir. 2016).
Petitioner then filed a petition for certiorari with the
United States Supreme Court, which was denied.
December 21, 2017, petitioner filed motion to vacate under 28
U.S.C. § 2255, alleging I) the image at issue regarding
his guilty plea was not child pornography, 2) he experienced
“torture” and “written death threats”
prior to signing his plea agreement, 3) ineffective
assistance of counsel, 4) prosecutorial misconduct, where the
prosecutor made false and prejudicial statements at
petitioner's arraignment and hearing, 5) judicial
misconduct, 6) 18 U.S.C. § 2252, of which petitioner was
convicted, conflicts with witness intimidation law as set
forth at 18 U.S.C. § 1512, 7) 18 U.S.C. § 2252
conflicts with intellectual property law, 8) denial of access
to legal materials and the courts, 9) he received no
Miranda warning, 10) he was subject to illegal
search and seizure, II) he was held under excessive bail, 12)
the court lacked federal jurisdiction, and, in sum, 13) the
previous allegations amount to a complete miscarriage of
January 29, 2018, the government filed its motion to dismiss
petitioner's § 2255 motion. On October 31, 2018, the
magistrate judge issued M&R, recommending denial of
petitioner's motion and grant of the government's
motion. On November 26, 2018, petitioner filed objection to
the M&R, arguing the magistrate judge erred in that 1)
petitioner's plea was not knowing and voluntary and 2)
his constitutional challenge to his conviction under 18
U.S.C. § 2252 is not barred by his direct appeal, as
well as claiming 3) ineffective assistance of counsel.
Standard of Review
district court reviews de novo those portions of the M&R
to which specific objections are filed. 28 U.S.C. §
636(b). The court does not perform a de novo review where a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Absent a specific and timely filed
objection, the court reviews only for “clear error,
” and need not give any explanation for adopting the
M&R. Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir. 1983). Upon careful
review of the record, “the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
petitioner seeking relief pursuant to 28 U.S.C. § 2255
must show that “the sentence was imposed in violation
of the Constitution or laws of the United States, or that the
Court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). “Unless the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief, the court shall . . . grant a
prompt hearing thereon, determine the issues and make
findings of fact and conclusions of law with respect
thereto.” 28 U.S.C. § 2255(b). “The Federal
Rules of Civil Procedure and the Federal Rules of Criminal
Procedure, to the extent that they are not inconsistent with
any statutory provisions, or the [§ 2255 Rules], may be
applied to” § 2255 proceedings. Rules Governing
Section 2255 Proceedings, Rule 12.
Knowing and Voluntary Plea
direct appeal of his conviction and sentence, the Fourth
Circuit found that petitioner's guilty plea and plea
waivers were knowingly and voluntarily made. Pepke,
662 Fed.Appx. at 226 (“Our review of the record leads
us to conclude that Pepke knowingly and voluntarily waived
the right to appeal his sentence, except for claims of
ineffective assistance or prosecutorial misconduct not known
to Pepke at the time of his guilty plea”). Petitioner,
once again, argues that his guilty plea was unknowing and
involuntary. (See DE 70 at 9-18). However, having
unsuccessfully raised this issue on direct appeal, petitioner
may not re-litigate it here. See United States v.
Walker, 299 Fed.Appx. 273, 276 (4th Cir. 2008) (citing
United States v. Roane, 378 F.3d 382, 396 n. 7 (4th
Cir. 2004)). Thus, in light of the court of appeals order,
this argument is unavailing.
addition, a review of the plea colloquy reveals that
petitioner's plea was both knowing and voluntary. The
court may rely on the petitioner's sworn admissions
during his Rule 11 hearing when determining whether a plea
was knowing and voluntary. See Blackledge v.
Allison, 431 U.S. 63, 73-74 (1977); United States v.
Lemaster, 403 F.3d 216, 221 (4th Cir. 2005). “[I]n
the absence of extraordinary circumstances . . . allegations
in a § 2255 motion that directly contradict the
petitioner's sworn statements made during a properly
conducted Rule 11 colloquy are always palpably incredible and
patently frivolous or false.” Lemaster, 403
F.3d at 221 (citations omitted).
and respondent entered into a plea bargain, where respondent
agreed to dismiss one count of possession of child
pornography and nine counts of receipt of child pornography.
(Plea Agreement (DE 22)). In exchange, petitioner agreed to
plead guilty to one count of receipt of child pornography and
To waive knowingly and expressly all rights, conferred by 18
U.S.C. § 3742, to appeal the conviction and whatever
sentence is imposed on any ground, including any issues that
relate to the establishment of the advisory Guideline range,
reserving only the right to appeal from a sentence in excess
of the applicable advisory Guideline range that is
established at sentencing, and further to waive all rights to
contest the conviction or sentence in any post-conviction
proceeding, including one pursuant to 28 U.S.C. § 2255,
excepting an appeal or motion based upon grounds of
ineffective assistance of counsel or prosecutorial misconduct
not known to the Defendant at the time of the Defendant's
(DE 22 at 1).
arraignment, petitioner was placed under oath. In response to
the magistrate judge's inquiry as to petitioner's
medical and physical condition, petitioner explained at
length his bipolar disorder and diabetes, his inability to
sleep, medication taken for sleeplessness while in custody as
well as insulin taken, how his sleep medication was
discontinued, and how his “mania is in the process of
returning, it is significantly returned.” (DE 39 at
following exchange then occurred:
THE COURT: All right. Is there anything about your past
diagnoses, current condition, prior medications, current
medications or current conditions that would make you believe
you're unable to understand what's going on this
THE DEFENDANT: I do not believe there's anything that
makes me unable to understand this morning. There are things
that make me unable to understand at various other times, and
also, Your Honor, I face the problem of if I ...