United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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.)
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.
(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.)
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.)
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.)
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.)
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.
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.
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.
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.)
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
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
(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.
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
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.)
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 ...