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Frazier v. United States

United States District Court, N.D. Alabama, Northeastern Division

April 14, 2017




         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).[1] The Government has responded to the Section 2255 Motion (Id., Doc. # 7), and Petitioner has replied (Id., Doc. # 10). Petitioner has amended his motion to vacate to add one claim. (Id., Docs. # 11, 12). The court granted the Government an opportunity to respond to the amendment, but it did not respond. (Id., Doc. # 13).

         I. Background

         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:

THE COURT: All right. Mr. Fortune, I do think in this case we are going to go forward with a presentation as to a factual basis. So I'm going to ask you to describe for me the facts you would expect to prove at trial if this case were to go to trial. And, Mr. Frazier, I want you to listen carefully to what the Assistant U.S. Attorney is about to outline for me. I'm going to ask you some questions about his presentation once he finishes. All right?
MR. FORTUNE: Your Honor, again, the factual basis is as enumerated on pages 3 through 8. The United States would be prepared to prove the following facts beyond a reasonable doubt at the trial of this case.
The Defendant Robert William Frazier is a native and citizen of the United States, born in or about November 1979 . . . .
On or about December 24, 2012, a federal search warrant was executed at a residence in Anniston, Alabama. As a result of searching a cellular telephone from that location, two minor victims, MC No. 1 and MC No. 2 under the age of 12 years old were seen in visual depictions that depicted the children nude and were associated with lascivious communications between the target in Anniston, Alabama and unknown individuals. Further investigation of the individual depictions, including computer forensic examinations, determined that the images were produced in Dekalb County, Alabama between September 2010 and February 2013.
On December 4th, 2014, special agents with Homeland Security Investigations traveled to DeKalb County to attempt to identify and rescue the two minor victims. DeKalb County Sheriff's Office and Alabama State Troopers assisted the HHI special agents. As a result of canvassing the area law enforcement were able to positively identify the two minor victims as being prepubescent minors under the age of 12 years old.
On December 4th, 2013, law enforcement was also able to contact the Defendant Robert William Frazier in DeKalb County, Alabama within the Northern District of Alabama, who admitted to producing the nude visual depictions of the minor victims and sending them to the target in Anniston, Alabama. The Defendant voluntarily agreed to speak to law enforcement and then the Defendant confessed to producing the visual depictions and sending the visual depictions with his iPhone.
The Defendant admitted to meeting the target in Anniston, Alabama through a Craigslist advertisement and that he knew the target as Mike. The Defendant admitted to communicating with Mike about child sex and bestiality. The Defendant admitted to communicating with Mike via telephone text messages including sending Mike a link to a child sex story website. In addition the Defendant admitted to texting Mike, quote, I would love it if I could just have a little fun with my oldest daughter. I found a website that let's [sic] you read stories of child sex, and it's pretty intense stuff. The Defendant confirmed the identity of the two minor victims.
The Defendant 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. The Defendant admitted forwarding the videos to Mike via text messages from his iPhone because having sex with children was something they both fantasized about in their communications. The Defendant stated that Mike and he had also communicated about conducting sex acts with each other in front of quote their girls.
The Defendant admitted to receiving a video from Mike via text message of a juvenile girl lying on a bed with her hands in her pants playing with herself simulating masturbation. The Defendant also admitted receiving the video from Mike that depicted the same aforementioned juvenile exiting the shower completely nude and a video of Mike masturbating a dog.
The Defendant identified multiple residences, all located in DeKalb County, where the Defendant produced child pornography images of the two minor victims by using his iPhone. The Defendant's iPhone was manufactured outside the State of Alabama and has previously traveled in interstate and foreign commerce. A preliminary forensic review of the Defendant's iPhone located additional evidence of the Defendant transporting, receiving and possessing images of child pornography.
For example, the Defendant used his iPhone to download and view images of child pornography from the Internet that depicted a prepubescent child under the age of 12 with an adult male penis touching her mouth while she holds onto the penis and that depict a prepubescent child being penetrated in her vagina by an adult male penis. The children depicted in the images downloaded to the Defendant's iPhone from the Internet are different children than those identified as MC No. 1 and MC No. 2.
Law enforcement agents seized and searched various computer media located in the Defendant's residence including but not limited to computer hard drives and storage devices and the Defendant's iPhone. A cursory review of the images located on the Defendant's iPhone, computer and/or hard drive indicated that there were images of child pornography produced, transported, received and possessed. The images of child pornography produced, transported, received and possessed by the Defendant are of real children engaged in sexually-explicit conduct, including but not limited to actual or simulated sexual intercourse, masturbation and the lascivious exhibition of the genitals or pubic area of a person.
The images of child pornography received and possessed by the Defendant were produced in other states, other countries, and traveled in interstate and foreign commerce via the Internet. The images of child pornography produced by the Defendant were produced by an iPhone that was mailed, shipped or transported in or affecting interstate or foreign commerce by any means, including by computer. The images of child pornography produced by the Defendant were actually transported or transmitted using a means or facility of interstate or foreign commerce; to wit, the iPhone cellular telephone. Law enforcement agents seized and searched various computer media used by the Defendant; to wit, Apple iPhone 5 cellular telephone Model A-1533 -- and the serial number is enumerated; an iPhone 4 Model A1349 -- and again the serial number is enumerated; LG cellular telephone, Model US740 -- serial number is enumerated; a Dell Inspiron One computer with a service tag; Seagate external computer hard drive -- with the serial numbers enumerated; and a Dell USB device -- with another serial number -- to commit and promote the commission of violations of 18 United States Code Sections 2251 and 2252A.
Such conduct as outlined above, the transportation, receipt and possession of child pornography, would constitute violations of Title 18, United States Code, Sections 2252A(a)(1), (a)(2) and (a)(5)(B). The Defendant hereby stipulates that the facts stated above are substantially correct and that the Court can use these facts in calculating the Defendant's sentence.
THE COURT: All right. Thank you, Mr. Fortune. Mr. Frazier, you have heard Mr. Fortune outline for me the evidence he would expect to prove at trial. He essentially read the Plea Agreement into the record so I know you have gone over that with your lawyer before as you've indicated to me. I need to ask you these questions. First, are those facts substantially correct?
THE COURT: Did you hear him say anything that was incorrect?
THE COURT: And did you do the things he says you did?

(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.

         II. Discussion

         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).

         A. Petitioner Has Not Demonstrated Any Prejudice He Suffered Due to Counsel's Pre-Plea Sentencing Estimates

         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).[2] But, that is not what occurred here. In this case, the court advised Defendant at the plea colloquy about his potential sentence, including its possible maximum and minimum.

THE COURT: All right. What I want to do next is cover with you the statutory penalties that apply in this case, and just so you'll know, I'm only going to be covering Counts 7, 8 and 10. . . .
A violation of 18 United States Code Section 2252A(a)(1) carries with it a custodial term of not less than five years nor more than 20 years; a fine of not more than $250, 000, a term of supervision of not less than five years ...

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