Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McNiell v. United States

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

November 30, 2017

JUSTIN CLAY MCNIELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          VIRGINIA EMERSON HOPKINS United States District Judge.

         I. Background and Procedural History

         On October 28, 2014, Justin Clay McNiell (hereinafter referred to as “McNiell”) pled guilty to one count (Count One) of having knowingly received child pornography and material that contains child pornography, in violation of Title 18, United States Code, Section 2252A(a)(2) and to one count (Count Two) of having knowingly distributed child pornography and material that contains child pornography, in violation of Title 18, United States Code, Section 2252A(a)(2). (Plea agreement at 1; Doc. 9 in United States v. McNeill, Case Number 5:14-CR-270-VEH-JHE). In exchange, the Government agreed, at sentencing, to move to dismiss one count (Count Three) of having knowingly possessed and accessed with intent to view a computer laptop that contains an image of child pornography, including an image that involved a prepubescent minor and a minor who had not attained 12 years of age, in violation of Title 18, United States Code, Sections 2252A(a)(5)(B) and (b)(2). (Id.).

         On August 20, 2015, this Court sentenced McNiell to 240 months custody as to Counts One and Two separately and concurrently with 120 months of supervised release to follow.[1] (Judgment of Conviction, Doc. 34 in United States v. McNeill, Case Number 5:14-CR-270-VEH-JHE). The Court granted the Government's motion to dismiss Count Three. (Id.). McNiell did not appeal.

         On August 15, 2016, McNiell filed a petition pursuant to 28 U.S.C. § 2255. (Doc. 1).[2] The Government has filed an Opposition (doc. 9). In its Opposition, the Government stated, inter alia, that the movant should be required to amend his petition. On June 6, 2017, this Court entered an Order agreeing that amendment was required. (Doc. 10). The Court stated:

         Specifically, movant is hereby ORDERED as follows:

1. IF movant is raising any claim that his counsel was ineffective at the movant's sentencing as to any specific failure not addressed in the Government's response, he MUST file an amended petition setting out with specificity “what Attorney Tewalt failed to object to” at sentencing that movant states Attorney Tewalt should have objected to. Movant is hereby cautioned that any failure by him to amend as ordered in this paragraph 1 will be deemed a waiver of any alleged failure of Attorney Tewalt at sentencing other than those addressed in the Government's response.
2. Movant MUST file an amended petition setting out the specifics regarding his claim that Attorney Tewalt was ineffective in not filing a notice of appeal. Specifically, movant MUST state, in that amended petition:
a. When movant asked Attorney Tewalt to file a notice of appeal (and, if on more than one occasion, the approximate times of each such request);
b. How movant made each request specified in subparagraph a. above (in person, by mail, by telephone, or by any other means);
c. Where movant and Attorney Tewalt where located at the time of each request specified in subparagraph a. above; and
d. As to each request specified in subparagraph a. above, what aspect of the criminal proceeding (plea hearing, sentencing hearing, or other) movant wanted Attorney Tewalt to challenge by an appeal.
Movant is hereby cautioned that any failure by him to amend as ordered in this paragraph 2 will be deemed a waiver of any claim based on the failure of Attorney Tewalt to file an appeal.
The deadline for movant to file any amended petition is July 10, 2017.

(Doc. 10 at 1-3).

         McNiell DID NOT RESPOND. Accordingly, he has waived:

         1. Any alleged failure of Attorney Tewalt at sentencing other than those addressed ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.