United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE.
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). 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).
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.”)). 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.”).
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.” (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.) 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
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).
sentencing, Erskine, through his attorney, initially filed
the following position with respect to the Presentence
Investigation Report on September 14, 2015, in Criminal No.
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
(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.
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 § 2G2.2(b)(5),
because the defendant engaged in a pattern of activity
involving the ...