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Nelson v. United States

February 11, 2009


The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge


Defendant Keith Nelson ("Nelson") was convicted by plea of guilty to one count of possession of material involving the sexual exploitation of minors in violation of 18 U.S.C. § 2252(a)(4)(B) on November 19, 2007. Judgment was entered on January 14, 2008. Between October 22, 2008, and November 13, 2008, Nelson filed a series of four motions that sought appointment of counsel for preparation of a motion for habeas relief, tolling of the statutory time for filing a habeas petition, and modification of his conditions of confinement pending the outcome of his habeas challenges. On November 14, 2008, the court issued an order denying all outstanding motions and directing Nelson to file a motion pursuant to 28 U.S.C. § 2255 (the "November 14 Order"). On January 12, 2009, Nelson timely filed the instant motion to vacate, correct or set aside his sentence pursuant to 28 U.S.C. § 2255 (the "2255 Motion"). Doc. # 29; Civil Case 09cv090, Doc. # 1. Between December 1, 2008, and January 5, 2009, Nelson filed four separate pleadings the court construes to be motions for reconsideration of its November 14 Order and one motion for issuance of certificate of appealability. For the reasons that follow, the court will deny Nelson's 2255 Motion and will deny all motions for reconsideration and will deny the motion for certificate of appealability.


At the time of his arrest, Nelson was a 61year old married male who was retired from 21 years of service in the Army and had been employed for a number of years as a machine operator for a marketing company in Merced, California. Nelson's pleadings describe Nelson as suffering from impaired intellect. The Presentence Investigation Report ("PIR") that was prepared for Nelson's sentencing states that Nelson reported having a "learning disability" that made academic achievement difficult. Nelson is reported to have graduated with his high school class in 1963 and functioned competently both in his army career and in his employment in the civilian sector.

According to the PIR, Nelson's name appeared several times on lists generated by the Immigration and Customs Enforcement Cyber Crimes Center in Fairfax, Virginia of persons suspected of having received child pornography via the internet during 2003. On March 5, 2007, Fresno County Sheriff's Department detectives, as well as officers from ICE and Department of Homeland Security went to Nelson's home and conducted and interview. During the interview, Nelson disclosed the existence and location of a large number of electronic data storage devices, including compact disks, floppy discs and computer hard drives that contained more than 600 images of child pornography. During the interview Nelson also admitted knowledge of the existence of the images, his knowledge that they involved depictions of actual children, and his knowledge that possession of such images was unlawful. The investigating agents left after the interview and Nelson was subsequently arrested on June 6, 2007.

On August 13, 2007, Nelson executed a plea agreement, wherein he agreed to plead guilty to a single count of violation of 18 U.S.C. § 2252(a)(4)(B). In the plea agreement, Nelson admitted each of the specific characteristics of the offense that were used to calculate the final offense level, including allegations that the number of images exceeded 600, a computer was used, that the images included those of prepubescent children engaged in sexually explicit conduct with adults, and that images included some that depicted sadistic or masochistic abuse of young children. The plea agreement also contained an agreement for recommendation of a three-level reduction for acceptance of responsibility and for a recommendation for sentencing at the bottom of the guideline range. The plea agreement stated that the guideline term of imprisonment of 78 months is reasonable under the circumstances and included a comprehensive waiver of the right to appeal or collaterally attack the conviction or the sentence, including waiver of any right to proceed by way of a motion pursuant to 28 U.S.C. § 2255. The plea agreement also acknowledges that, should Nelson be successful in vacating or reduced at his request, the government's reserves the right to prosecute Nelson on any counts of which Nelson was convicted or that were dismissed under the agreement or to prosecute under any charges that were otherwise barred by the plea agreement.

Nelson entered a plea of guilty on November 19, 2007. Judgment was entered on January 14, 2008. The instant 2255 Motion was timely filed on January 12, 2009.


Section 2255 provides, in pertinent part: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." Under section 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.' " United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.1994) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996) (internal quotations omitted), cert. denied, 520 U.S. 1269, 117 (1997). To earn the right to a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle him to relief. Id. Mere conclusory statements in a section 2255 motion are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980), cert. denied, 451 U.S. 938 (1981).


I. Nelson's Motion Pursuant to 28 U.S.C. § 2255

In the plea agreement, Nelson waived his right to collaterally attack his sentence . "The right to attack a judgment collaterally is statutory. [Citation.] A knowing and voluntary waiver of a statutory right is enforceable. [Citation.] For this reason a prisoner may not collaterally attack a judgment if the prisoner waived the right to do so." United States v. Racich, 35 F.Supp.2d 1206, 1210 (S.D. Cal. 1999). However, a waiver cannot bar a claim that relates to the validity of the waiver itself. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). Here, Nelson alleges his plea of guilty was the result of his attorney's failure to fully inform Nelson of the defenses he could have asserted. Specifically, Nelson contends that his consent to search the premises and the incriminating statements he made during the interview were the result of improper police conduct and that had he been sufficiently informed by his attorney of his fourth amendment rights, Nelson would have not entered a plea of guilty. Nelson also contends he suffered ineffective assistance of counsel because his attorney failed to fully inform Nelson of the implications of the plea agreement and that the failure to fully inform was prejudicial due to Nelson's impaired intellect.

Because claims of ineffective assistance of counsel usually implicate the validity of plea agreements that are secured through the efforts of the allegedly ineffective counsel, those claims are not normally considered waived by plea agreements. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994)("We doubt that a plea agreement could waive a claim of ineffective assistance of counsel based on counsel's erroneously unprofessional inducement of the defendant to plead guilty or accept a particular plea bargain"); United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996) (citing Pruitt for the proposition a general waiver does not include claims of ineffective assistance brought under section 2255). This court follows Pruitt in finding Petitioner's general waiver of the right to collaterally attack the judgment or his sentence did not waive his right to petition pursuant to section 2255 on the ground of ineffective assistance of counsel.

To establish a constitutional violation for the ineffective assistance of counsel, a defendant must demonstrate (1) a deficient performance by counsel, and (2) prejudice to him. United States v. Cochrane, 985 F.2d 1027, 1030 (9th Cir.1993). To prove a deficient performance of counsel, Nelson must demonstrate that his attorney "made errors that a reasonably competent attorney acting as a diligent and conscientious advocate would not have made." Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir.1985). To show prejudice, Nelson must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). A court addressing a claim of ineffective assistance of counsel need not address both prongs of the Strickland test if the plaintiff's ...

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