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Swindle v. United States

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

November 15, 2017

ADAM SHANE SWINDLE, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          MEMORANDUM OF OPINION

          L. Scott Coogler, United States District Judge.

         Petitioner Adam Shane Swindle (“Swindle”) has filed with the Clerk of this Court a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Doc. 1.) The United States opposes the motion. (Doc. 3.) For the following reasons, the motion is due to be denied.

         I. Background

         On July 30, 2015, a federal grand jury in the Northern District of Alabama indicted Swindle on three counts: distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2) (Count 1); receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2) (Count 2); and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) & (b)(2) (Count 3).

         On October 20, 2015, Swindle pled guilty to Counts 2 and 3 pursuant to a signed plea agreement, and the Government agreed to dismiss Count 1. As stated in the factual basis of the plea agreement and stipulated to by Swindle, the images of child pornography possessed and received by Swindle are of real children, some under the age of 12, engaged in sexually explicit conduct, including but not limited to actual or simulated sexual intercourse, actual or simulated masturbation, and the lascivious exhibition of the genitals or pubic area of the person. There was an appeal waiver in the plea agreement, but it listed as exceptions claims of ineffective assistance of counsel, among other things.

         This Court sentenced Swindle on March 1, 2016, to 168 months' imprisonment as to Counts 2 and 3, separately, to run concurrent with the other, followed by a lifetime term of supervised release and a $200.00 felony assessment. Count 1 was dismissed at sentencing pursuant to the plea agreement. Judgment was entered on March 1, 2016.

         Swindle appealed, but he later moved to voluntarily dismiss his appeal, and it was dismissed by the Eleventh Circuit Court of Appeals on June 10, 2016. Swindle filed the instant § 2255 motion on April 25, 2017.

         II. Discussion

         Section 2255 permits a federal prisoner to bring a collateral challenge by moving the sentencing court to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Once a petitioner files a § 2255 motion, “[u]nless 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.” Id. § 2255(b). A petitioner is entitled to an evidentiary hearing if he “alleges facts that, if true, would entitle him to relief.” Aron v. United States, 291 F.3d 708, 715 n.6 (11th Cir. 2002). “[A] petitioner need only allege-not prove-reasonably specific, non-conclusory facts that, if true, would entitle him to relief.” Id. at 715 n.6. However, this Court need not hold a hearing if the allegations are “patently frivolous, ” “based upon unsupported generalizations, ” or “affirmatively contradicted by the record.” Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989); see, e.g., Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir. 2004) (“Because the . . . affidavits submitted by Lynn amount to nothing more than mere conclusory allegations, the district court was not required to hold an evidentiary hearing on the issues and correctly denied Lynn's § 2255 motion.”).

         Swindle asserts two grounds in support of his request for relief: 1) counsel was ineffective for failing to object and allowing Swindle to enter a plea of guilty to an insufficient factual basis; and 2) counsel was ineffective for allowing Swindle to enter his plea of guilty unknowingly and involuntarily.

         As an initial matter, Swindle waived certain rights when he entered into his guilty plea, but he did not waive the right to raise a claim of ineffective assistance of counsel on appeal or on collateral attack. Moreover, claims of ineffective assistance of counsel are not required to be raised on direct appeal and may be raised for the first time in a § 2255 motion. Massaro v. United States, 538 U.S. 500, 504 (2003).

         The Sixth Amendment guarantees the right to effective assistance of counsel in all criminal prosecutions. Yarborough v. Gentry, 540 U.S. 1, 4 (2003). The standard applicable to claims of ineffective assistance of counsel in post-conviction motions is well-established: relief will not be granted unless the petitioner can show not only that counsel's performance was deficient but also that such deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). More specifically, the movant must show that: (1) his counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88. The court need not “address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697. In determining whether an attorney's performance fell below the objective standard of reasonableness, the court is highly deferential to counsel's decisions and must keep in mind that “a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged performance, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689. The court must also indulge a strong presumption that counsel's performance falls within the “wide range of reasonable professional assistance.” Id. When seeking to overcome this presumption, a movant cannot rely on bare accusations and complaints, but instead “must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at 690.

         Strickland's two part standard is applicable to ineffective-assistance claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57 (1985). With regard to the prejudice prong in the context of a guilty plea, the defendant must show “that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59.

         A. The factual basis for Swindle's guilty plea was sufficient, and therefore defense counsel was not ineffective for failing to object

         Swindle essentially argues that because he never admitted to having violated the particular federal statutes that criminalize the conduct to which he pled guilty, the factual basis of his guilty plea was insufficient, and, by extension, his counsel was ineffective for failing to object to it. He also appears to contend that because he was not questioned in detail about his crimes during his plea hearing, there was an insufficient factual basis for his plea. (See Doc. 1 at 25 (“The Court never asked Petitioner any questions regarding his description of the crimes, nor was the prosecution or any law enforcement officer called upon to testify as to what Petitioner did to establish that all of the essential elements were admitted to by Petitioner.”).

         As an initial matter, Swindle's claim that the factual basis for his plea was insufficient is likely barred by the appeal waiver in his plea agreement and thus not cognizable by this Court on collateral review. Swindle's efforts to couch the claim as one of ineffective assistance of counsel in order to avoid the ...


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