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Pepke v. United States

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

May 24, 2019




         This 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.


         On 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.

         On 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 justice.

         On 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.


         A. Standard of Review

         The 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. § 636(b)(1).

         A 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.

         B. Analysis

         1. Knowing and Voluntary Plea

         On 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.

         In 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).

         Petitioner 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 guilty plea.

(DE 22 at 1).

         At 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 12).

         The 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 morning?
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 ...

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