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Selley v. United States

United States District Court, S.D. Georgia, Brunswick Division

February 7, 2018

MICHAEL IRVING SELLEY, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         On June 25, 2015, this Court sentenced Michael Irving Selley (“Selley”) to ninety-seven (97) months' imprisonment after he pleaded guilty to possession of child pornography. Selley, who is currently incarcerated at the Federal Correctional Institution-Elkton in Lisbon, Ohio, has now filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 57.)[1] Selley contends that his retained trial counsel, Mr. James B. Smith, rendered ineffective assistance of counsel during the sentencing phase of his case. (Doc. 57-1.) Specifically, Selley contends that Mr. Smith failed to object to a two-point offense level enhancement that Selley received in the calculation of his advisory Guidelines' sentencing range due to Selley having distributed child pornography. (Id.) However, Selley has failed to demonstrate that his trial counsel's performance fell below the standard expected of criminal defense attorneys. Moreover, Selley has failed to demonstrate that any deficiencies in Mr. Smith's performance prejudiced his defense. The two-level distribution increase was appropriate, given the facts before the Court and the applicable law. Therefore, Mr. Smith's decision to not object to the two-point enhancement was reasonable, and Selley has failed to establish a reasonable probability that any objection would have changed his sentence.

         For these reasons set forth more fully below, I RECOMMEND this Court DENY Selley's Motion to Vacate, Set Aside, or Correct his Sentence for lack of jurisdiction under 28 U.S.C. § 2255(h). (Doc. 57.) Additionally, the Court DISMISSES as moot Selley's Motion to Compel, (doc. 54). Further, I RECOMMEND that the Court DENY Selley a Certificate of Appealability and in forma pauperis status on appeal and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal.

         BACKGROUND

         On February 5, 2015, the grand jury for the Southern District of Georgia returned an Indictment against Selley charging him with six (6) counts: receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) (Count One); distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) (Counts Two through Five); and possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2) (Count Six). (Doc. 1.) Selley faced not less than five nor more than twenty years' imprisonment as to each of the receipt and distribution counts (Counts One through Five) and not more than twenty years' imprisonment as to the possession count (Count Six). (Doc. 2.)

         However, Selley and his attorney, Mr. Smith, were able to negotiate a plea agreement with the Government whereby Selley agreed to plead guilty to Count Six of the Indictment, in exchange for the Government moving to dismiss the remaining charges. (Doc. 45.) Under the terms of the plea agreement, Selley promised to, among other things, acknowledge the factual basis of his plea, cooperate with the Government for a downward departure, waive his right to a direct appeal (with limited exceptions), and waive his right to collaterally attack his sentence.

(Id.) Pertinently, Selley also agreed:

[T]o not object to findings by the U.S. Probation Office that the material possessed involved a prepubescent minor or a minor who had not attained the age of 12 years as defined by U.S.S.G. § 2G2.2(b)(2); that the offense involved distribution as defined by U.S.S.G. § 2G2.2(b)(3)(F); that the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence as defined by U.S.S.G. § 2G2.2(b)(4); that the offense involved the use of a computer as defined by U.S.S.G. § 2G2.2(b)(6); and that the offense involved 600 or more images as defined by U.S.S.G. § 2G2.2(b)(7).

(Id. at p. 4 (emphasis supplied).) Selley also affirmed that Mr. Smith had represented him “faithfully, skillfully, and diligently” and that he was “completely satisfied” with Mr. Smith's legal advice and work on his case. (Id. at p. 8.) The Government agreed to move to dismiss the remaining counts, to not object to a recommendation that Selley receive a reduction in his offense level for acceptance of responsibility, and to consider whether Selley's cooperation qualified as “substantial assistance warranting a motion for downward departure.” (Id. at pp. 3- 5.)

         On April 28, 2015, Selley appeared before the Honorable Lisa Godbey Wood for a change of plea, or Rule 11, proceeding. (Doc. 44.) At the commencement of the hearing, Judge Wood explained that the Court understood that Selley wanted to change his plea and plead guilty to one of the counts pending against him. (Doc. 60, p. 2.) Judge Wood asked Selley if this was correct, and he responded that it was. (Id.) Judge Wood explained the purposes of the hearing, including making certain that Selley understood the case against him, ensuring that he was aware of the rights that he would give up if he pleaded guilty, and establishing that there was a factual basis for the plea of guilty. (Id.)

         Judge Wood then engaged in an extensive plea colloquy with Selley. She explained that the decision to plead guilty was an important one, that the decision was entirely Selley's decision, and that she wanted to be certain that he understood all of the important considerations that go into the decision. (Id. at pp. 2-3.) Judge Wood inquired whether anyone had forced Selley to plead guilty, and he said no one had done so and that pleading guilty was what he wanted to do. (Id. at p. 3.)

         Judge Wood had Selley placed under oath before asking him a series of questions. (Id.) He was able to recount his personal information, including his age, the ages of his children, and his residence. (Id. at p. 4.) Selley testified that he completed the tenth grade, obtained his GED, and attended some college. (Id. at pp. 4-5.) Selley testified that he suffered from manic depression. (Id.) Judge Wood asked Selley whether he was currently taking medication for that condition, and he responded that he was. (Id. at pp. 5-6.) He also affirmed that his medications adequately addressed his condition. (Id. at p. 6.)

         Judge Wood then asked Selley whether he was able to converse with or strategize about his case with Mr. Smith. Selley responded that he was able to do so.. When Judge Wood asked Selley to describe the purpose of the hearing, he responded that it was to punish him for the mistakes that he made and for him to accept responsibility as part of his plea bargain. (Id.)

         Judge Wood explained to Selley that he was presumed innocent and the Indictment was not evidence of his guilt. (Id. at pp. 7-8.) She also explained that he did not have to plead guilty, and if he chose to persist in his not guilty plea, he would have the right to: a public and speedy trial by jury; a presumption of innocence during that trial; the assistance of trial counsel; see, hear, confront, and cross-examine the Government's witnesses and evidence; call witnesses on his behalf; and testify himself or remain silent. (Id. at pp. 8-10.) Judge Wood cautioned Selley he would be waiving these rights if he pleaded guilty. (Id.) She explained that, if she accepted his guilty plea, there would be no right to trial of any kind, and that what would remain of his case would be the sentencing phase. (Id. at p. 10.) Selley stated he understood. (Id.)

         Selley also stated he and Mr. Smith reviewed the Indictment together, that he had the opportunity to talk to Mr. Smith about the facts of his case and the underlying conduct, as well as about the proposed plea agreement, and that Mr. Smith had discussed the law pertaining to his case with him. (Id. at pp. 10-11.) When Judge Wood asked Selley if he was satisfied with Mr. Smith's representation, Selley responded, “Very much so.” (Id. at p. 11.) Selley testified that he did not have any complaints whatsoever about Mr. Smith's representation.

         Judge Wood reviewed the counts of the Indictment with Selley and discussed the essential elements of the crimes for which he was charged and what the Government would have to prove if he went to trial. (Id. at pp. 11-13.) Selley responded that he understood these elements and what the Government would have to prove if he went to trial and that he was pleading guilty because those elements were satisfied as to the count to which he was pleading guilty. (Id.) Judge Wood advised Selley of the penalties she could impose for the Count to which he was pleading guilty. (Id. at pp. 14-15.) Moreover, Judge Wood explained to Selley that, in imposing a sentence upon him, she would have to take into consideration the advisory Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553. (Id. at p. 15.) Selley stated that no one had promised him an exact sentence, and Judge Wood explained that anyone's estimation of what his sentence might be would in no way bind the Court. (Id. at p. 15-16.)

         Judge Wood affirmed with Selley that he had given Mr. Smith permission to negotiate a plea agreement with the Government. (Id. at p. 16.) She then asked the Assistant United States Attorney (“AUSA”) to summarize the provisions of the plea agreement. AUSA Shane Mayes stated:

The agreement provides that Mr. Selley will plead guilty to Count 6 of the indictment. The Government will not object to a recommendation by the U.S. Probation Office that Mr. Selley receive an appropriate reduction in the offense level for acceptance of responsibility under the sentencing guidelines.
Mr. Selley agrees to not object to findings by the U.S. [P]robation [O]ffice that the material possessed involved a prepubescent minor or a minor who had not attained the age of 12 years as defined by Sentencing Guideline 2G2.2(b)(2), that the offense involved distribution as defined by Sentencing Guideline 2G2.2(b)(3)(f), that the offense involved material that portrayed sadistic or masochistic conduct or other depictions of violence as defined by Sentencing Guideline Section 2G2.2(b)(4), that the offense involved the use of a computer as defined by Sentencing Guideline 2G2.2(b)(6) and that the offense involved 600 or more images as defined by Sentencing Guideline 2G2.2(b)(7).
Mr. Selley agrees to pay restitution for the full loss caused by his criminal conduct, which is not limited to the specific counts to which he is pleading guilty.
Mr. Selley agrees to provide full, complete and candid cooperation to the Government, and the Government in its sole discretion will decide whether that cooperation qualifies as substantial assistance that warrants the filing of a motion for downward departure or reduction in sentence.
At sentencing, the Government will move to dismiss any other counts of the indictment that remain pending against Mr. Selley and, Your Honor, the plea agreement provides the Government's standard appeal waivers which are contained on Page 6 of the agreement. If I may tender the agreement to [t]he Court.

(Id. at pp. 16-17 (emphasis supplied).) Judge Wood asked Selley if AUSA Mayes' summarization of the plea agreement was consistent with the plea agreement he signed, and he stated it was. (Id. at pp. 17-18.) Selley also stated he read the plea agreement before he signed it, and Mr. Smith answered any questions he may have had before he signed the agreement. Selley reaffirmed that no one had made him any promises regarding the outcome of his case, other than the provisions contained in the plea agreement. (Id.)

         Judge Wood then specifically addressed the direct appeal waiver with Selley, stating the following:

I do want to pick back up on something that Mr. Mayes alluded to, and that is, contained in this agreement that you're urging is a waiver of certain appellate rights.
It states “Defendant entirely waives his right to a direct appeal of his conviction and sentence on any ground.” The only exceptions are three; that is, you would get a direct appeal right back only if one of these three things were to occur: Number One, if I were to sentence you above the statutory maximum, then you could appeal that directly; Number 2, if I were to sentence you above the advisory guideline range as found by me, then you could appeal that directly; or Number 3, if the Government were to file a direct appeal, then you, too, could file a direct appeal.
But otherwise, by virtue of this plea agreement, you waive all other direct appellate rights. Understand?

(Id. at pp. 18-19.) Selley stated he understood the appeal waiver provision. (Id. at p. 19.)

         Judge Wood also explained that the proposed plea agreement contained a waiver of certain of Selley's collateral attack rights. She explained:

It states “Defendant entirely waives his right to collaterally attack his conviction and sentence on any ground and by any method including but not limited to a 28 USC Section 2255 motion.”
The only exception to that waiver of collateral attack rights is that you do retain the right to collaterally attack your conviction and sentence based on a claim of ineffective assistance of counsel; do you understand that waiver?

(Id.) Selley replied that he understood the collateral attack waiver, and he confirmed that he had no questions about the plea agreement's ...


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