United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
WILLIAM E. CASSADY, Magistrate Judge.
Petitioner, Robert Lawrence Nouwen, has filed with this Court a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 41). This action has been referred to the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(b). Following consideration of all relevant pleadings in the case, it is recommended that Nouwen's § 2255 motion be summarily DISMISSED.
FINDINGS OF FACT
On October 25, 2012, Nouwen was indicted on one count of knowingly possessing and attempting to possess images of child pornography that were mailed, shipped and transported "in and affecting interstate commerce[, ]" in violation of 18 U.S.C. § 2252A(a)(5)(B). (Doc. 1.) Written notice of intent to plead guilty was filed on December 11, 2012 (Doc. 8) and Nouwen entered a counseled guilty plea to Count One of the indictment on December 17, 2012 (Doc. 36). Four days prior to entry of his guilty plea, Petitioner endorsed both his plea agreement with the government and the factual resume. (Doc. 11, at 10; see also id., Attached Factual Resume, at 3.) The factual resume reads, in relevant part, as follows:
In October of 2010, [the] United States Inspection Service and the Toronto Police Service began an investigation into a movie production company that operated a website offering DVDs and streaming videos for sale. The majority of the films feature young boys and were marketed as "naturist films."
Investigators accessed the Toronto company's website (azovfilms.com) and were able to review film previews, website movie summaries and customer ordering information. On six occasions between February and April 2011, investigators made six controlled purchases of DVDs from the online ordering system. The videos were reviewed and contained the visual depiction of minor boys engaged in lascivious exhibition of the genitals.
Based on this information, investigators got a search warrant for the Toronto company and seized DVDs, photos, computers and business records. Records revealed that Robert Nouwen, 5235 Avalon Drive, Mobile, Alabama, on seven occasions between January 17, 2011 and April 26, 2011 ordered child pornography from the website spending a total of $188.00.
On September 19, 2012, a search warrant was executed at defendant's residence. During the search, defendant waived his Miranda rights and talked to investigators. He admitted ordering the videos of child pornography from the website. The videos were placed in the stream of mail of the United States mail and traveled from Toronto, Canada to Mobile, Alabama. He claimed that he destroyed the videos, which contained the depiction of prepubescent minor boys engaged in lascivious exhibition of the genitals, after he viewed them.
(Id. at 2-3.) The plea agreement signed by Nouwen contains a limited waiver of the right to appeal and a waiver of collateral attack. (Doc. 11, at 7-8.)
24. As part of the bargained-for exchange represented in this plea agreement, and subject to the limited exceptions below, the defendant knowingly and voluntarily waives the right to file any direct appeal or any collateral attack, including a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Accordingly, the defendant will not challenge his guilty plea, conviction, or sentence... in any district court or appellate court proceedings.
a. EXCEPTIONS. The defendant reserves the right to timely file a direct appeal challenging:
(1) any sentence imposed in excess of the statutory maximum;
(2) any sentence which constitutes an upward departure or variance from the advisory guideline range.
(Id. (footnote added); see also Doc. 36, Guilty Plea Transcript, at 6 ("THE COURT: Under some circumstances, you and the United States each may have the right to appeal any sentence the judge imposes. You also have the right to waive your right to appeal, and I see by your plea agreement that you are waiving your right to appeal any sentence imposed with the following exceptions: And that would be any punishment in excess of the statutory maximum, any punishment constituting an upward departure of the guideline range, and any claim of ineffective assistance of counsel. Do you understand that? DEFENDANT: Yes, sir.").) Indeed, Nouwen specifically acknowledged by signing the plea agreement that if he received a sentence within or below the advisory ...