R. DAVID PROCTOR, District Judge.
This case is before the court on Petitioner Robert William Frazier's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Civil Docket, Doc. # 1).
Petitioner was indicted on six charges of producing child pornography (Counts One through Six), one count of transporting child pornography (Count Seven), one count of receiving child pornography (Count Eight), and two counts of possessing and accessing child pornography with intent to view (Counts Nine and Ten). (Criminal Docket, Doc. # 1). On February 20, 2014, Petitioner appeared with his attorney, Robert T. Ray, for a change of plea hearing and entered a plea of guilty to Counts Seven, Eight, and Ten. (Id., Doc. # 29 at 33-34). At the plea hearing, Petitioner agreed the following facts were correct and that he did the following things:
(Id. at 25-31).
At sentencing, the court calculated an advisory sentencing range of 360 months' to life imprisonment under the Sentencing Guidelines. (Id., Doc. # 30 at 20). Petitioner was sentenced to a total sentence of 360 months' imprisonment, a sentence at the low end of the guideline range. (Id. at 50). The court imposed concurrent statutory maximum sentences of 240 months' imprisonment for Counts Seven and Eight, and a consecutive 120-month imprisonment sentence for Count Ten. (Id.). The court dismissed Counts One through Six and Count Nine on the Government's motion. (Id.).
Petitioner filed a timely notice of appeal. (Id., Doc. # 22). Petitioner's trial counsel moved for the court to appoint appellate counsel on Petitioner's behalf. (Id. at 2). The court granted this motion and appointed the Federal Public Defender to represent Petitioner on appeal. (Id., Doc. # 25). Following Petitioner's filing of a motion for voluntary dismissal, the Eleventh Circuit dismissed his appeal on December 9, 2014. (Id., Doc. # 32).
Petitioner now raises three claims in his motion to vacate and one additional claim in his motion to amend. First, he asserts that he was denied the effective assistance of counsel because his trial attorney advised him that he would receive a sentence of no more than 20 years' imprisonment upon his plea of guilty. (Civil Docket, Doc. # 1 at 4). Second, he claims that trial counsel rendered ineffective assistance by failing to raise certain objections to the probation office's Sentencing Guidelines calculation and by failing to argue that the calculated guidelines range created a disparity between his sentence and the sentence of his co-defendant. (Id. at 5, 7-8). Third, he argues that he was denied the effective assistance of counsel on direct appeal because his appellate attorneys did not prosecute the direct appeal, despite his instructions that they do so. (Id. at 10). Finally, in his motion to amend the motion to vacate, Petitioner asserts that his trial counsel rendered ineffective assistance by advising him to plead guilty to two counts that resulted in multiple punishments for the same offense. (Doc. # 11 at 3). The court addresses each claim below, in turn.
A federal prisoner may file a motion to vacate his or her sentence "upon the ground 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). It is well settled that "to obtain collateral relief[,] a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). Here, Petitioner seeks relief on the ground that he received ineffective assistance of counsel.
Ineffective assistance of counsel claims are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court established a two-prong test for adjudicating ineffective assistance of counsel claims; both prongs of the test must be met for a petitioner to succeed. Id. at 687. First, a petitioner must show that counsel's performance was deficient, i.e., the performance was outside the range of professionally competent assistance. Id. The proper measure of an attorney's performance is "reasonableness under prevailing professional norms." Id. at 688. Unless a petitioner can rebut the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," he or she cannot show that counsel's performance was constitutionally deficient. Id. at 689. "The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. [The court asks] only whether some reasonable lawyer . . . could have acted, in the circumstances, as defense counsel acted. . . ." White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992); see also Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995) (en banc) (stating that "perfection is not the standard of effective assistance").
Second, a petitioner must establish prejudice, such that there is a reasonable probability that, absent counsel's errors, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 687; Chandler v. United States, 218 F.3d 1305, 1312-13 (11th Cir. 2000) (en banc). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. A petitioner alleging prejudice resulting from his or her acceptance of a guilty plea must demonstrate a reasonable probability that he or she would have gone to trial rather than enter the plea, but for counsel's errors. Lafler v. Cooper, 566 U.S. 156, 163 (2012). And, the petitioner's decision to reject the plea would have to be "rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010). Because Petitioner must meet both parts of the Strickland test, the court need not address the performance prong if he cannot meet the prejudice prong, and vice versa. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
To be sure, uncorrected "significant misleading statements of counsel" related to the length of a potential sentence that prompt a defendant to plead guilty can amount to ineffective assistance. Cooks v. United States, 461 F.2d 530, 532 (5th Cir. 1972).
(Criminal Docket, Doc. # 29 at 19-22).
Following that discussion, the court ensured that Petitioner understood the operation of the Sentencing Guidelines and 18 U.S.C. § 3553:
(Id. at 23-24). In such a circumstance, a defendant generally cannot establish prejudice on an ineffective-assistance claim based on an erroneous sentence prediction. See, e.g., Harris v. United States, 769 F.2d 718, 720-21 & n. 1 (11th Cir. 1985); Krecht v. United States, 846 F.Supp.2d 1268, 1281 (S.D. Fla. 2012).
Most importantly for purposes of resolving this claim, the court ensured that Petitioner was pleading guilty because he was actually guilty of the charged conduct:
(Id. at 24). During its explanation of the factual basis for the charged offenses, the Government asserted that Petitioner had (a) "admitted to producing the nude visual depictions of the minor victims and sending them to the target in Anniston, Alabama" and (b) "admitted to video recording the two minor victims in various stages of undress in their bedrooms and bathrooms while they were changing clothes or preparing to enter the shower." (Id. at 26-27). Moreover, Petitioner stipulated to those facts and agreed that the court could use them to determine his sentence. (Id. at 30). Petitioner confirmed that the factual statements made by the Government were substantially correct and that he committed the conduct described by the Government. (Id. at 31).
"[W]hen a defendant makes statements under oath at a plea colloquy, he bears a heavy burden to show his statements were false." United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). "There is a strong presumption that the statements made during the [plea] colloquy are true." United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). Petitioner's sworn statements — made in open court during his consent hearing in which he acknowledged his guilty plea was not induced by any promises or assurances, and that he understood that the sentence imposed might be different from any estimate made by his attorney or anyone else — preclude the relief he seeks. (Criminal Docket, Doc. # 29 at 23-24). Here, the court was crystal clear with Petitioner at his plea hearing. He was expressly told that a sentence higher than he was expecting would not permit him to withdraw his guilty plea. (Criminal Docket, Doc. # 29 at 23-24). In addition, he confirmed under oath that no promises or assurances, other than those in the plea agreement, induced him to plead guilty.
Petitioner's argument that counsel provided ineffective assistance by misadvising him of the effect of the factual basis cuts no ice. (See Civil Docket, Doc. # 1-1 at 11-12 (alleging that counsel failed to inform Petitioner that he would waive his right to have facts determined by a jury and that the factual basis could be used to determine his sentence)). As explained above, the Government informed Petitioner during the plea colloquy that his factual proffer included admissions of producing child pornography and that those admissions could be used by the court during sentencing. (Criminal Docket, Doc. # 29 at 26-27, 30). Petitioner agreed that the Government's factual averments were substantially correct. (Id. at 31). In his plea agreement, he stipulated that the court could use the factual proffer during sentencing without additional fact-finding. (Id., Doc. # 9 at 8). And, during the plea colloquy, Petitioner confirmed his understanding that he could not withdraw the plea if his guideline range was higher than expected. (Id. at 23-24). Thus, Petitioner has not established that his trial counsel's estimate of a sentence range prejudiced him by inducing him to enter a guilty plea, and his first ineffective-assistance claim is due to be denied.
After careful review, the court concludes that Petitioner's ineffective assistance claims regarding trial counsel's performance at the sentencing stage provide no basis for habeas relief.
Petitioner argues that his trial counsel should have asserted a post-sentence objection to his custodial sentence based on the disparity between Petitioner's sentence and the sentence received by Michael Haynes. (Civil Docket, Doc. # 1-1 at 14-16). This claim is completely meritless.
In a sentencing memorandum, Petitioner's trial counsel argued that Petitioner should receive a downward departure from the Presentence Report's ("PSR") guideline range because Haynes, Petitioner's co-defendant, had been sentenced to 120 months' imprisonment for similar offenses. (Criminal Docket, Doc. # 12 at 1-2). Petitioner's counsel raised the disparity issue again during the sentencing hearing and contended that the court should depart from the calculated guideline range to avoid an unwarranted sentencing disparity, pursuant to 18 U.S.C. § 3553(a)(6). (Id., Doc. # 30 at 36). Petitioner offered testimony from a special agent who investigated his offenses. (Id. at 23-24). The agent believed that Haynes had produced a pornographic video involving his daughter, but Haynes never confessed to producing it. (Id. at 25-26). In response, the prosecutor averred that Petitioner and Haynes were not similarly situated because the Government did not have enough evidence to prove beyond a reasonable doubt that Haynes had produced child pornography. (See id. at 43-44).
Following the parties' arguments, the court expressly recognized the difficulty presented by the need to avoid unwarranted sentencing disparities:
Putting that aside, though, I can't disagree too much with the agent's view that these defendants match up in terms of their approach to abusing and misusing children, including their own.
So what we are faced with, then, is kind of a collision course in this case between the Section 3553(a) factors, in particular, as the defendant argues, the need to avoid unwarranted sentence disparities among defendants and, as the Government has argued, the vile nature and circumstance of the offense, the history and characteristics of the defendant, and the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment.
The Court has fully considered a variance in this case and has the authority to impose a sentence other than the one called for by the guideline range, even at the low end of the guideline range. However, I think a reasonable sentence in this case exists at the bottom of the guideline range.
(Id. at 49-50).
Petitioner's trial counsel fully and effectively presented the sentence-disparity issue to the court during sentencing. Trial counsel raised the issue before sentencing, reiterated the request for a downward variance during sentencing, cited the statutory basis for the requested variance, and offered testimony to support the request. He committed no error by refraining from reiterating the objection after the court imposed the sentence. "[S]o long as a party states its objection to the sentence at some point during the sentencing hearing, its failure to repeat the objection at the conclusion of the imposition of sentence will not result in a waiver of that objection." United States v. Hoffer, 129 F.3d 1196, 1202 (11th Cir. 1997). Because counsel effectively presented the sentence-disparity issue, this ineffective assistance claim is due to be denied.
Alternatively, even if Petitioner could demonstrate counsel's deficient performance with respect to this sentencing issue (and, to be clear, he cannot), Petitioner suffered no prejudice from counsel's failure to raise a duplicative objection to the court's denial of a downward variance. The court recognized the difficulty of avoiding an unwarranted sentence disparity in this case and explained why the Section 3553(a) factors supported a sentence at the low end of the guideline range.
Petitioner contends that trial counsel rendered deficient performance by failing to object to the court's application of a cross-reference in U.S.S.G. § 2G2.2(c) when calculating his base offense level. (Civil Docket, Doc. # 1-1 at 16-18). As with Petitioner's sentence-disparity claim, this claim misconstrues the facts and offers no basis for habeas relief.
Petitioner's PSR explained that the base offense level for Petitioner's offenses was determined by applying U.S.S.G. § 2G2.2. (PSR ¶ 30). However, the PSR recommended that the court apply a cross-reference to a guideline with a higher base offense level (U.S.S.G. § 2G2.1) because Petitioner's crimes "involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct." (Id.) (referring to U.S.S.G. § 2G2.2(c)(1)). Moreover, as the PSR noted, Petitioner's offenses involved the production of six units of child pornography as relevant conduct and that the separate incidents of production could not be grouped together for purposes of calculating a base offense level. (Id.).
Petitioner's trial counsel objected to the PSR's base offense level on the ground that Petitioner had not produced pornography. (Addendum to the Presentence Report; Criminal Docket, Doc. # 12 at 1). Petitioner claimed that he had surreptitiously recorded the material and that it could not be considered "sexually suggestive or unnatural." (Criminal Docket, Doc. # 12 at 1). The parties argued these objections at length during the sentencing hearing. (See id., Doc. # 30 at 2-19). The court overruled Petitioner's objections to the base offense level. (Id. at 19-20). The court noted that Petitioner had "waived any right he may have for a jury determination of the facts" and had "admitted certain facts that bear upon the computation of his offense level under the guidelines." (Id. at 20). Significantly, in the plea agreement's factual proffer, Petitioner had admitted "to producing" the videos at issue and sending them to another individual. (Id. at 17-18).
The record shows that Petitioner's trial counsel presented objections to the court's application of U.S.S.G. § 2G2.1 to determine Petitioner's base offense level. Petitioner complains that the court erred by not applying the factors articulated in United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986), to determine whether he produced sexually explicit material (see Civil Docket, Doc. # 1-1 at 17), but Petitioner's counsel cannot be faulted for that because he argued that the court should apply the Dost factors (see Criminal Docket, Doc. # 12 at 1). Petitioner also contends that the court should not have applied the cross-reference because he did not seek to have the minor victims engage in sexually explicit conduct. (See Civil Docket, Doc. # 1-1 at 16-17). This argument is belied by Petitioner's admission in his factual proffer that he had expressed a desire to sexually assault his older daughter and had "communicated about conducting sex acts" with his co-defendant in front of their children. (Criminal Docket, Doc. # 29 at 27). Additionally, Petitioner has not provided binding authority that would have supported an objection to the court's application of the cross-reference. It is well settled that "counsel is not required to anticipate changes in the law" to provide effective advocacy for a defendant. See, e.g., Rambaran v. Sec'y, Dep't of Corr., 821 F.3d 1325, 1326 (11th Cir.), cert. denied, 137 S.Ct. 505 (2016). The record simply refutes Petitioner's claim that counsel rendered deficient performance, and this ineffective-assistance claim is due to be denied.
Alternatively, Petitioner has not shown that he was prejudiced by counsel's failure to present any specific objection to the court's application of the cross-reference in U.S.S.G. § 2G2.2. Indeed, Petitioner's trial counsel presented almost all of the arguments raised in this motion to vacate against the application of the cross-reference, but those arguments failed. To the extent Petitioner claims counsel should have argued that he did not seek to have minors engage in sexually explicit conduct, that objection would have failed because Petitioner admitted to proposing a sexual assault of the minors in his communications with the co-defendant.
Moreover, the court could have applied U.S.S.G. § 2G2.1 to determine Petitioner's base offense level based on his stipulations to the court without applying the cross-reference in U.S.S.G. § 2G2.2. Under the Sentencing Guidelines, "[a] plea agreement (written or made orally on the record) containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offense(s)." U.S.S.G. § 1B1.2(c). Petitioner's admissions that he had produced videos of minors "in various stages of undress in their bedrooms and bathrooms while they were changing clothes or preparing to enter the shower" and had sent them to his co-defendant were admissions of using a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction. (See Criminal Docket, Doc. # 9 at 5). Cf. 18 U.S.C. § 2251(a). Based on the stipulations in the factual proffer, the court would have been justified in applying U.S.S.G. § 2G2.1 to determine Petitioner's base offense level. For these reasons, the court finds no reasonable probability of a different sentence if Petitioner's trial counsel had made any of Petitioner's proposed objections to the application of the cross-reference in U.S.S.G. § 2G2.2.
Petitioner next contends that his trial counsel should have objected to the court's application of a multiple count adjustment. (Civil Docket, Doc. # 1-1 at 18-20). According to Petitioner, the PSR incorrectly designated the six dismissed charges as relevant conduct and incorrectly applied the cross-reference in U.S.S.G. § 2G2.2 to determine the base offense level for each of those charges. (Id. at 19). Petitioner complains that the PSR should not have counted the six dismissed charges to determine the multiple-count adjustment, pursuant to U.S.S.G. § 3D1.4. (Id.). The court disagrees.
Petitioner's trial counsel did not render deficient performance with regard to this claim because the claim appears to have been foreclosed by Eleventh Circuit law. In United States v. Moore, the Eleventh Circuit considered whether a court erred by applying an adjustment to a defendant's offense level under Section 3D1.4 to account for fourteen unindicted bank robberies that the defendant admitted to during the plea colloquy. 6 F.3d 715, 717 (11th Cir. 1993), superseded by rule in part on other grounds as recognized in United States v. Summers, 176 F.3d 1328, 1330 (11th Cir. 1999). In Moore, the Eleventh Circuit recognized that, under U.S.S.G. § 1B1.2(c), a defendant's stipulation to committing an additional offense during a guilty plea is treated as a conviction for an additional count charging that offense. Id. at 718-19 (quoting U.S.S.G. § 1B1.2(c)). The Moore court held that a district court must consider unconvicted offenses as additional counts of conviction when conducting a guideline calculation if the offenses are stipulated to in the plea agreement. Id. at 719-21.
Here, Petitioner stipulated to producing multiple videos of "the two minor victims in various stages of undress in their bedrooms and bathrooms while they were changing clothes or preparing to enter the shower." (Criminal Docket, Doc. # 9 at 5). As such, he stipulated to multiple violations of 18 U.S.C. § 2251(a), and the court was obligated to consider the stipulated violations as convictions for purposes of calculating a multiple-count adjustment. See Moore, 6 F.3d at 719-21. Any doubts about the number of production violations committed by Petitioner were resolved by the PSR, which specifically stated that Petitioner produced at least six distinct videos. (PSR ¶ 22). Petitioner admitted to the accuracy of this information, for purposes of sentencing, by raising no objection to paragraph 22 of the PSR. (See Criminal Docket, Doc. # 12; Addendum to the Presentence Report (objecting to the PSR's characterization of the videos and its claim that Petitioner had "produce[d]" them, but not to Petitioner's creation of the videos)). See also United States v. Williams, 438 F.3d 1272, 1274 (11th Cir. 2006).
Perhaps it could be said that this case is distinguishable from Moore on the basis that Petitioner did not stipulate to a specific number of production offenses. But, Petitioner has not referred to any binding case law which makes such a distinction. Accordingly, in light of the Moore opinion, it was reasonable for Petitioner's trial counsel to believe that the PSR's multiple-count adjustment was appropriate, and his failure to object to the adjustment "did not fall outside the wide range of professionally competent counsel."
In his motion to vacate, Petitioner contends that his appellate counsel rendered deficient performance by filing a motion to voluntarily dismiss his appeal despite his instructions to prosecute the appeal. (See Civil Docket, Doc. # 1-1 at 20-24). Petitioner concedes that appellate counsel advised him that the appeal lacked merit and suggested that he file a motion to vacate. (Id. at 21). Petitioner avers that he was confused about the direct appeal procedure but did not intend to waive his appeal rights. (Id.). The court finds no basis for awarding habeas relief on this claim.
First, Petitioner's ineffective assistance claim against appellate counsel fails to allege what specific performance of his appellate counsel was deficient. Petitioner seeks to extend case law addressing an attorney's failure to file a notice of appeal after a defendant has requested an appeal to be filed. (See id. at 21-22) (citing Roe v. Flores-Ortega, 528 U.S. 470 (2000)). But, Petitioner cannot dispute that his trial counsel filed a timely notice of appeal. (Criminal Docket, Doc. # 22). Trial counsel also requested that the court appoint appellate counsel for Petitioner (Id. at 2), and the court appointed the Federal Public Defender to represent Petitioner on appeal (Criminal Docket, Doc. # 25). By Petitioner's own account, his appellate counsel did not abandon him; rather, counsel advised him that the appeal lacked merit. (Civil Docket, Doc. # 1-1 at 21). When Petitioner's mother informed appellate counsel about his confusion, counsel sent Petitioner a letter, which explained that he should sign a waiver form to dismiss the appeal. (Id. at 34). Counsel asked for a signed waiver "[t]o confirm that this is your decision." (Id.). In his reply brief, Petitioner concedes that he signed a form to dismiss his appeal but claims that the signature was involuntary due to his confusion about the appropriate procedure for obtaining judicial review of his claims. (Id., Doc. # 10 at 7). However, this concession demonstrates that, by dismissing the appeal, Petitioner's appellate counsel followed Petitioner's "express instructions with respect to an appeal." Cf. Roe, 528 U.S. at 478 ("If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions."). Because Petitioner's appellate counsel consulted with him and followed his express written instructions, Petitioner's appellate counsel provided constitutionally sufficient representation to him.
Second, Petitioner's ineffective assistance claim against appellate counsel fails to allege that the advice provided by counsel prejudiced him. As explained above, Petitioner seeks to extend Roe so that he is not required to "show[] that the appeal would have merit." (Civil Docket, Doc. # 1-1 at 21). But, Roe applied a less rigorous prejudice standard because the failure to file a notice of appeal deprived the petitioner "of the appellate proceeding altogether." Roe, 528 U.S. at 483. The court is not convinced that Roe's prejudice standard should be extended to this situation, where Petitioner was appointed appellate counsel, appellate counsel analyzed the strength of Petitioner's claims, counsel met with Petitioner and informed him the appeal was meritless, and counsel proposed an alternative procedure for obtaining judicial review. Appellate counsel correctly advised Petitioner that the proposed claims were meritless. (See Criminal Docket, Doc. # 22 at 1-2) (outlining the claims Petitioner wished to raise on appeal). As explained above, Petitioner has not provided a viable basis for challenging the voluntary nature of his plea agreement.
For the reasons explained above, Petitioner has failed to demonstrate appellate counsel's deficient performance or a reasonable probability of a different result if his appeal had been prosecuted to a final decision. This ineffective assistance claim is due to be denied.
In his amendments to the motion to vacate, Petitioner claims that trial counsel provided ineffective assistance by failing to advise him that his guilty plea to Counts Eight and Ten of the indictment exposed him to "multiple punishments for the same criminal offense." (Civil Docket, Doc. # 11 at 3). Petitioner states that possession of child pornography is a lesser included offense of receipt of child pornography and that Counts Eight and Ten were based on the same events. (Id. at 3-4).
Petitioner relies on United States v. Bobb, 577 F.3d 1366 (11th Cir. 2009), to argue that Counts Eight and Ten were multiplicitous counts. (See id.). In Bobb, the Eleventh Circuit held that the criminal prohibition on receipt of child pornography in 18 U.S.C. § 2252A(a)(2)(B) proscribes the same conduct as the prohibition on possessing child pornography in 18 U.S.C. § 2252A(a)(5)(B). 577 F.3d at 1373. This is so because a person who receives an item necessarily must possess the item. Id. The Eleventh Circuit determined that the possession offense is a lesser-included offense of the receipt offense. Id. at 1374-75. Nevertheless, it affirmed the defendant's convictions for receiving child pornography and possessing child pornography because (1) the indictment charged the defendant with receiving child pornography and possessing child pornography on different dates; and (2) the trial evidence proved that the defendant received seven files of pornography on one date and possessed over 6,000 additional images on a later date. Id. at 1375.
As an initial matter, the court is not convinced that Petitioner's convictions on Counts Eight and Ten are actually multiplicitous convictions, particularly in light of Petitioner's admissions in the factual proffer. Petitioner admitted to receiving and possessing two videos of a juvenile sent by his co-defendant. (Criminal Docket, Doc. # 9 at 5-6). Petitioner's receipt conviction under Count Eight could be attributed to receiving one of the videos, while his possession conviction under Count Ten could be attributed to possessing the second video. Although the indictment could have included additional allegations to clearly distinguish Counts Eight and Ten, the court is not convinced that Petitioner's trial counsel missed a lurking double jeopardy violation in representing him in connection with the plea Petitioner entered. Rather, the court believes that Petitioner pled to one receipt count and one possession count to avoid a double jeopardy issue. To the extent that the court is uncertain about the existence of a double jeopardy issue due to the lack of a complete factual record, that uncertainty works against Petitioner's claim. See Premo v. Moore, 562 U.S. 115, 132 (2011) ("The added uncertainty that results when there is no extended, formal record and no actual history to show how the charges have played out at trial works against the party alleging inadequate assistance.").
More importantly, Petitioner has not alleged in this proceeding that he would have gone to trial and refused the plea if counsel had informed him about the alleged double jeopardy issue. (See generally Civil Docket, Docs. # 11, 12). Thus, this ineffective assistance claim fails as a matter of law. Lafler, 566 U.S. at 163 (requiring a petitioner to show a reasonable probability that he or she would have declined a plea offer to demonstrate prejudice from an improvidently accepted plea). Nor can the court conclude that Petitioner could have rationally declined the plea offer if trial counsel had informed him about the double jeopardy issue. Cf. Padilla, 559 U.S. at 372. By pleading guilty, Petitioner avoided any possible conviction for producing child pornography. He also avoided a mandatory minimum 15-year sentence for producing child pornography. See 18 U.S.C. § 2251(e). The Government held overwhelming evidence of Petitioner's guilt on all charges, as he had confessed to producing child pornography, sending it to his co-defendant, and receiving pornography from the co-defendant. (See Criminal Docket, Doc. # 9 at 4-6). The Government also had physical evidence to corroborate Petitioner's confession.
A petitioner under Section 2255 is entitled to an evidentiary hearing if he alleges "reasonably specific, non-conclusory facts that, if true, would entitle him to relief." Aron v. United States, 291 F.3d 708, 715 n. 6 (11th Cir. 2002). The court need not hold an evidentiary hearing if a petitioner's claims are "affirmatively contradicted by the record" or "patently frivolous." Id. The court does not need to hold an evidentiary hearing to resolve Petitioner's ineffective assistance claims because they are contradicted by the record. Specifically, Petitioner's claim that trial counsel induced his plea by providing an inaccurate estimate of the ultimate sentence is contradicted by the plea colloquy. Petitioner's claims that trial counsel performed deficiently by failing to object to the sentence disparity or to the court's application of the cross-reference in U.S.S.G. § 2G2.2 are squarely contradicted by the sentencing transcript. Petitioner's own admissions about his interactions with appellate counsel show that they provided adequate assistance to him. Finally, Petitioner's claims related to alleged double counting of relevant conduct and a double jeopardy issue do not provide a basis for relief, even after the assertions in Petitioner's filings are accepted as true.
Petitioner's ineffective assistance of counsel claims fail on the merits. Therefore, Petitioner's motion to vacate (Civil Docket, Docs. # 1, 11-12) is due to be denied without an evidentiary hearing. A separate order consistent with this opinion will be entered.
