United States District Court, N.D. Alabama, Northeastern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
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. #
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. #
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?
THE DEFENDANT: Yes, sir.
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
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
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
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
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
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
THE DEFENDANT: Yes, sir.
THE COURT: Did you hear him say anything that was incorrect?
THE DEFENDANT: No, sir.
THE COURT: And did you do the things he says you did?
THE DEFENDANT: Yes, sir.
(Id. at 25-31).
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.).
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.
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.
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
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
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).
Petitioner Has Not Demonstrated Any Prejudice He Suffered Due
to Counsel's Pre-Plea Sentencing
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). 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 ...