United States District Court, E.D. California
PHILLIP J. COLWELL, Movant,
UNITED STATES OF AMERICA, Respondent.
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
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.
Factual and Procedural Background
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.
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.
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.
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).
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.
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. ECF No. 85 at 4-17.
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
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. ...