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Erskine v. United States

United States District Court, S.D. Alabama, Southern Division

August 29, 2018

MICHAEL ROBERT ERSKINE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE.

         This cause is before the Court on Petitioner Michael Robert Erskine's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, filed only in Criminal No. 14-0274-KD (see Doc. 82). The Court treats the motion as having been filed in Criminal No. 15-0079-KD as well (see Id. (directing arguments to both cases)), as with the government's response in opposition (Doc. 84).[1] This action has been referred to the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a)(2)(R). Following consideration of all relevant pleadings in this case, it is recommended that Erskine's conclusory § 2255 motion be DENIED without an evidentiary hearing. Compare, e.g., Rosin v. United States, 786 F.3d 873, 878 (11th Cir.) (“It is well-settled that the district court is not required to grant an evidentiary hearing when the defendant's claims are affirmatively contradicted by the record evidence, nor is a hearing required if the claims are grounded upon generalizations that are unsupported by the record evidence.”), cert. denied, __ U.S. __, 136 S.Ct. 429, 193 L.Ed.2d 320 (2015), and United States v. Bejacmar, 217 Fed.Appx. 919, 921 (11th Cir. Feb. 15, 2007) (“[I]f the petitioner's allegations are affirmatively contradicted by the record, or the claims are patently frivolous, a district court is not required to hold an evidentiary hearing.”) with Means v. Secretary, Dep't of Corrections, 433 Fed.Appx. 852, 855 (11th Cir. July 12, 2011) (“[W]here ‘the record refutes [a petitioner's] factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.'”) (citation omitted)), cert. denied, 565 U.S. 1217, 132 S.Ct. 1580, 182 L.Ed.2d 198 (2012) and Allen v. Secretary, Florida Dep't of Corrections, 611 F.3d 740, 745 (11th Cir. 2010) (“A district court is not required to hold an evidentiary hearing if the claims ‘are merely conclusory allegations unsupported by specifics,' . . . or ‘if the record refutes the applicant's factual allegations or otherwise precludes habeas relief[.]'”), cert. denied, 563 U.S. 976, 131 S.Ct. 2898, 179 L.Ed.2d 1192 (2011).

         FINDINGS OF FACT

         On November 25, 2014, Erskine was charged by indictment with one count of failing to register and update a registration as required by the Sex Offender Registration and Notification Act (SORNA-42 U.S.C § 16901 et seq.), in violation of 18 U.S.C. § 2250(a). (Doc. 1 in Criminal No. 14-0274-KD, at 1 (“Between on or about April 29, 2014 continuing through October 17, 2014, in the Southern District of Alabama, Southern Division and elsewhere, the defendant, MICHAEL ROBERT ERSKINE, having traveled in interstate and foreign commerce, knowingly failed to register and update a registration as required by the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et seq. which required the defendant to register as a sex offender by reason of a conviction under the law of Virginia, to-wit, on June 26, 1995, he was convicted of Aggravated Sexual Battery in No. 95-129.”)).[2] Erskine's case was continued for a number of trial terms (see Docs. 24, 28, 31, 37 & 39 in Criminal No. 14-0274-KD). In the meantime, on April 30, 2015, Erskine was charged by separate indictment with one count of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1). See United States v. Erskine, Criminal No. 15-0079-KD, Doc. 1, at 1 (“Between on or about January 1, 2014 through on or about May 30, 2014, in the Southern District of Alabama, Southern Division, and elsewhere, the defendant, MICHAEL ROBERT ERSKINE, knowingly received and distributed images of child pornography as defined in 18 U.S.C. § 2256(8)(A) that had been shipped and transported in and affecting interstate commerce by any means including by computer.”).[3]

         Erskine filed written notices of intent to plead guilty to the sole count of the indictment in Criminal No. 14-0274-KD on June 16, 2015 (Doc. 45) and to the sole count of the indictment in Criminal No. 15-0079-KD (see Doc. 16). Erskine signed the negotiated Plea Agreement, which addressed both charges, on June 18, 2015 (see, e.g., Doc. 48 in Criminal No. 14-0274-KD, at 10 (“I have consulted with my counsel and fully understand all my rights with respect to the offense charged in [each] Indictment pending against me. I have read this Plea Agreement and carefully reviewed every part of it with my attorney. I understand this agreement, and I voluntarily agree to it. I hereby stipulate that the Factual Resume, incorporated herein, is true and accurate in every respect, and that had the matter proceeded to trial, the United States could have proved the same beyond a reasonable doubt.”[4] (footnote added)). Erskine entered a counseled guilty plea to those charges on June 23, 2015 (see, e.g., Doc. 79 in Criminal No. 14-0274-KD). During the change of plea hearing, Erskine acknowledged receiving copies of the indictments, fully discussing the charges-and possible defenses to those charges-with his attorney, and stated he understood the charges pending against him. (See Id. at 5-6.)[5] Importantly, Erskine acknowledged that with respect to the receipt of child pornography charge that if the Government was correct in its assessment and the Court found that he had a qualifying offense and the 15-year minimum mandatory enhancement applied to his case, he was facing a 15 to 40-year sentence. (Id. at 6-7; see also Doc. 48 in Criminal No. 14-0274-KD, at 4 (“However, the defendant may be subject to enhanced sentencing of not less than 15 years to 40 years because of his possibly qualifying prior conviction.”)).

THE COURT: . . . If your attorney is able to show that you don't have a qualifying offense, it would go down to 5 to 20. Do you understand that?
THE DEFENDANT: Yes, I do.
THE COURT: Do you understand in just a first look, it looks like the 15 years applies.
THE DEFENDANT: Yes. He showed me that.
THE COURT: And you understand that?
THE DEFENDANT: Yes, I do.
THE COURT: Okay. So[, ] you understand those to be the penalties?
THE DEFENDANT: Yes.
THE COURT: All right. Now, you've entered into a plea agreement with the Government where they'll be indicating that they will be recommending the low end of the guideline. And, of course, if you are subject to the 15 years, the guidelines may be higher than the 15 years, but you understand their position is going to be the low end [of] the guidelines? Do you understand that?
THE DEFENDANT: Yes, I do, ma'am.

(Doc. 79 in Criminal No. 14-0274-KD, at 7; see also Id. at 9 (“THE COURT: But I am required to impose at least a mandatory minimum sentence. Do you understand that? THE DEFENDANT: Yes, ma'am.”)). Erskine also acknowledged that he read the plea agreement and discussed it with counsel before signing it; that he was not promised anything not included in the plea agreement; and that no one tried to force him to plead guilty. (Id. at 7-8.) Before stating affirmatively on the record that he wanted to plead guilty to the charges (id. at 9), Erskine also acknowledge the rights he was waiving- including the right to a trial by jury and all rights attendant thereto-by entering a guilty plea (see Id. at 8-9). And after the Government placed on the record the elements of each charge and the facts underlying the propriety of the charges, the same content as that previously outlined and contained in the Factual Resume (compare Id. at 9-12 with Doc. 48 in Criminal No. 14-0274-KD, Factual Resume), Erskine specifically stated on the record that the Government could prove those facts and pled guilty to the charges (Doc. 79 in Criminal No. 14-0274-KD, at 12).

         Before sentencing, Erskine, through his attorney, initially filed the following position with respect to the Presentence Investigation Report on September 14, 2015, in Criminal No. 15-0079-KD:

1. The Defendant objects to the application of a minimum mandatory sentence of fifteen years to forty years imprisonment in that there is not a previous or prior conviction that triggers the enhanced minimum mandatory from five years to fifteen years . . . .
2. The statute under which the minimum mandatory is increased from five to fifteen years is constitutionally deficient as same is vague under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor. See Johnson v. United States, 576 U.S. __(2015) decided June 26, 2015.
3. The Government has not produced or proven admissible facts to support an increase in the minimum mandatory from five to fifteen years.

(Doc. 23). On October 6, 2015, Erskine, through counsel, filed his amended position with regard to the Presentence Investigation Report in both Criminal No. 14-0274-KD and Criminal No. 15-0079-KD. (Compare Doc. 56 in Criminal No. 14-0274-KD with Doc. 29 in Criminal No. 15-0079-KD).

Comes now the Defendant, Michael Robert Erskine, by and through counsel, and amends his position as to the Pre-Sentence Investigation Report filed October 1, 2015 and more particularly paragraph 19 which provides in pertinent part as follows:
“19. Specific Offense Characteristics: The defendant was previously convicted of aggravated sexual battery of a child in Virginia. According to investigative material, the victim was a female, and was age 8 when the sexual abuse began. Pursuant to USSG ยง 2G2.2(b)(5), because the defendant engaged in a pattern of activity involving the ...

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