United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF OPINION
Scott Coogler, United States District Judge.
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.
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).
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.
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.
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.
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 §
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.
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).
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.
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.
The factual basis for Swindle's guilty plea was
sufficient, and therefore defense counsel was not ineffective
for failing to object
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
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 ...