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Colwell v. United States

United States District Court, E.D. California

October 30, 2019

PHILLIP J. COLWELL, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         Movant, a federal prisoner proceeding pro se, filed an amended motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Respondent filed an opposition (ECF No. 86), and movant has filed a reply (ECF No. 93). For the reasons discussed herein, the undersigned recommends denying movant's 28 U.S.C. § 2255 motion.

         I. Factual and Procedural Background

         On February 23, 2012, movant was charged with using the mail or a facility of interstate commerce to induce a minor to engage in unlawful sexual conduct, transmitting obscene materials to a minor, and producing visual depictions of a minor engaged in sexually explicit conduct. ECF No. 3. The charges involved two underage male victims with whom movant had either sent graphic images of his male anatomy or photographed in sexually explicit poses.

         The parents of the first male victim contacted police in October 2011 after receiving sexually graphic text messages on their son's cell phone which they had taken away from him as punishment for misbehavior. ECF No. 15 at 19 (Factual Basis for Plea). The ensuing police investigation led to movant's arrest at a location where he agreed to rendezvous with the first male victim, who in reality was a Sacramento County police detective that had responded to movant's text messages received since the victim's cell phone had been turned over to police. ECF No. 15 at 22.

         A subsequent search of movant's cell phone, home computer, and a Kodak camera revealed multiple text messages and photographic images of an individual who was later identified as a 16-year old boy. ECF No. 15 at 23-25. This juvenile, hereinafter referred to as Victim Two, was interviewed by police and admitted meeting up with movant for the purpose of engaging in sexual activity on two occasions. ECF No. 15 at 25-26. During these encounters, movant tied Victim Two to his bed, poured hot wax on his body, and sodomized him. ECF No. 15 at 25-26. On the second encounter, movant took photos of Victim Two which were subsequently located on movant's computer and were taken with the camera seized from movant's vehicle. ECF No. 15 at 27-28.

         At the time of his arraignment on the federal charges, movant was represented by Federal Public Defender Jeffrey Staniels. ECF No. 7 (minutes of initial appearance). On April 13, 2012, movant entered a guilty plea to all three counts in the indictment pursuant to the terms of a written plea agreement. See ECF Nos. 13 (minutes of change of plea hearing), 15 (plea agreement). At the time of the guilty plea, movant was represented by Federal Public Defender Matthew Scoble. ECF No. 15. On December 3, 2012, the court appointed attorney Michael Aye to substitute in as movant's counsel. See ECF No. 26 (substitution order). Prior to sentencing, movant was evaluated for competency. See ECF Nos. 28 (minutes of status conference requesting competency evaluation); 37 (minutes of competency hearing). On July 10, 2014, movant was sentenced to 360 months imprisonment and a lifetime term of supervised release. ECF No. 52 (Judgment and Commitment Order).

         Movant appealed his conviction and sentence to the Ninth Circuit Court of Appeal. See ECF No. 53 (notice of appeal). On April 30, 2015, the court of appeal dismissed movant's appeal based on the valid waiver of his right to appeal contained in his plea agreement. ECF No. 69.

         Movant filed his original motion to vacate, set aside or correct his sentence on April 18, 2016. See ECF No. 77. Before respondent filed an answer, movant filed an amended § 2255 motion on May 11, 2016 which is the operative pleading pending before the court. In his amended § 2255 motion movant raises twelve separate ineffective assistance of counsel claims some of which contain numerous sub-claims.[1] ECF No. 85 at 4-17.

         II. Legal Standards

         28 U.S.C. § 2255 provides, in pertinent part that “[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.” A Section 2255 motion is the customary procedure for challenging the effectiveness of trial counsel under the Sixth Amendment. United States v. Houtchens, 926 F.2d 824, 828 (9th Cir. 1991).

         In this case, movant entered a guilty plea to all three counts in the indictment. The types of claims a prisoner may assert to challenge a guilty plea and the resulting sentence are substantially more limited than the types of claims which may be brought after a trial by jury:

A plea of guilty entered by one fully aware of the direct consequences, including the actual value of commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no relationship to the prosecutor's business (e.g. bribes).

Brady v. United States, 397 U.S. 742, 755 (1970). More generally, any claims which do not concern whether the prisoner entered his plea voluntarily and intelligently are rarely cognizable in any federal habeas action. See Boykin v. ...


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