Nelson v. United States

JEREMY JOSEPH NELSON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Case No.: 5:17-cv-08012-MHH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION

April 22, 2021

MEMORANDUM OPINION & ORDER

In 2015, Jeremy Joseph Nelson pleaded guilty to seven counts related to his creation, possession, and distribution of child pornography. Now serving a 1,680-month sentence of imprisonment, Mr. Nelson, proceeding without an attorney, seeks relief from his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). Mr. Nelson contends that his attorney in his federal criminal case was ineffective. This opinion partially resolves Mr. Nelson's § 2255 motion.

The opinion is organized in three sections. In the first section, the Court identifies the procedural requirements for a § 2255 motion and the ineffective assistance of counsel standard that governs Mr. Nelson's motion. In the second section, the Court describes Mr. Nelson's arrest, criminal proceedings, and § 2255 motion. In the third section, the Court evaluates Mr. Nelson's ineffective assistance of counsel arguments, applying the governing legal standards

I.

Criminal defendants do not have to bring an ineffective assistance of counsel claim on direct appeal before raising the claim in a motion made under 28 U.S.C. § 2255. Massaro v. U.S., 538 U.S. 500, 504 (2003) ("[A]n ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255 whether or not the petitioner could have raised the claim on direct appeal."). Because collateral review is not a substitute for direct appeal, the grounds under § 2255 for collateral attack on final criminal judgments are limited. A prisoner is entitled to relief under § 2255 if a district court imposed a sentence that violated the Constitution or laws of the United States, exceeded the court's jurisdiction, exceeded the maximum penalty authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v. Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999). "Relief under 28 U.S.C. § 2255 'is reserved for transgressions of constitutional rights and for that narrow compass ofother injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (quoting Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988)). The "two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Holmes v. United States, 876 F.2d 1545, 1551 (11th Cir. 1989) (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)); see also Missouri v. Frye, 566 U.S. 134, 143 (2012) ("The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.").

Under the Strickland test, to establish ineffective assistance of counsel, a defendant must demonstrate that "counsel's representation fell below an objective standard of reasonableness" and that the defendant was prejudiced because "there is reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Hill, 474 U.S. at 57 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984)). When challenging a guilty plea, a defendant establishes the "prejudice" prong of the Strickland test by showing "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Lockhart, 474 U.S. at 59.

When "a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.'" Hill, 474 U.S. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). Counsel is "not ineffective for failing to raise a nonmeritorious claim." Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001). In evaluating the effectiveness or ineffectiveness of a defendant's attorney, a district court must consider the totality of the circumstances to determine whether the defendant had adequate representation. Stanley v. Zant, 697 F.2d 955, 962 (11th Cir. 1983). A criminal defendant is not entitled to the very best legal representation; adequate representation satisfies the constitutional standard. Stone v. Dugger, 837 F.2d 1477 (11th Cir. 1988).

If a defendant does not satisfy both prongs of the Strickland test, then a district court must deny the defendant's § 2255 motion. Strickland, 466 U.S. at 687. If a court decides that one prong has not been established, then the court does not have to reach the other prong. Strickland, 466 U.S. at 687; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998).

II.

Mr. Nelson's arrest and conviction stem from his production, possession, and distribution of child pornography. In January 2014, the United States Department of Homeland Security and the Alabama Bureau of Investigation identified child pornography being shared between Mr. Nelson and an individual in Nashville, Tennessee. (Crim. Doc. 17, p. 6, ¶ 12).¹ Mr. Nelson was using the email account "dirtybird1972@gmail.com." In one message to the Tennessee individual, Mr. Nelson wrote: "I would like to trade with you if you are interested. I am wondering if you have more of the three pics you posted. Actually, I am interested in more than just those but that is all I am going to ask about this time. In the meantime, here is a link for you to around 6,000 pics." (Crim. Doc. 17, p. 6, ¶ 12).

On October 7, 2014, state and federal law enforcement officers visited Mr. Nelson's house in Huntsville, Alabama, and Mr. Nelson gave verbal and written statements admitting to producing child pornography. (Crim. Doc. 17, p. 7, ¶ 13). Mr. Nelson told investigators that there was an extensive amount of child pornography on an external hard drive connected to his computer. (Crim. Doc. 17, p. 7, ¶ 14). He also stated that over a period of several years, he had been usinghidden cameras to record his daughter, his cousin's daughter, his former girlfriend's daughter, and a few of their underage friends in his home. (Crim. Doc. 17, p. 7, ¶ 15). These recordings depicted minors in various stages of undress in the bathroom. (Crim. Doc. 17, p. 7, ¶ 15). He told investigators he had used a digital clock containing a hidden camera to make his pornographic recordings. (Crim. Doc. 17, p. 8, ¶ 18).

Mr. Nelson indicated that he had placed hidden cameras in several Huntsville businesses. (Crim. Doc. 17, p. 7, ¶ 16). Some of the cameras Mr. Nelson built himself; others he ordered online. (Crim. Doc. 17, p. 7, ¶ 17). After Mr. Nelson told investigators about his activities, the investigators collected cameras, SD cards, thumb drives, computer disks, and computers from his home. (Crim. Doc. 17, p. 8, ¶ 19). Mr. Nelson also provided to investigators "yearbooks" from Anne's Dance Studio. (Crim. Doc. 17, p. 8, ¶ 19).

On November 25, 2014, a federal grand jury indicted Mr. Nelson on seven counts for the creation, possession, and distribution of child pornography. (Crim. Doc. 1). On February 18, 2015, Mr. Nelson, represented by an Assistant Federal Public Defender, pleaded guilty to the seven counts in the indictment: four counts of Sexual Exploitation of Children in violation of 18 U.S.C. § 2251(a), Counts I-IV; two counts of Possessing or Accessing With Intent to View Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), Counts V-VI; and one count of Distributionof Child Pornography in violation of 18 U.S.C. § 2252A(a)(2), Count VII. (Crim. Doc. 10).

Mr. Nelson signed a written plea agreement which included an appeal waiver. (Crim Doc. 10).² The Assistant Federal Public Defender represented Mr. Nelson during the February 18, 2015 change of plea hearing. Based on his sworn answers to the Court during his change of plea hearing, the Court determined that Mr. Nelson was acting voluntarily, and the Court accepted Mr. Nelson's guilty plea. (Crim. Doc. 32, pp. 25-26).

As the Court explained to Mr. Nelson during his plea hearing, (Doc. 32, pp. 12-15), the statutory maximum term of imprisonment for the crime of Sexual Exploitation of Children is 30 years per count, and the mandatory minimum is 15 years per count. 18 U.S.C. § 2251(e). The statutory maximum term of imprisonment for the crime of Possessing or Accessing with Intent to View Child Pornography is 20 years per count. 18 U.S.C. § 2252A(b)(2). The statutory maximum term of imprisonment for the crime of Distribution of Child Pornography is 20 years per count, and the mandatory minimum is five years per count. 18 U.S.C. § 2252A(b)(1).

Based on Mr. Nelson's total offense level and criminal history, the United States Probation Office calculated for him a guideline imprisonment range of life. (Crim. Doc. 17, p. 25, ¶ 140). The Probation Office calculated that Counts I through VII should run consecutively to each other to produce a total sentence of 2,160 months or 180 years. (Crim. Doc. 17, pp. 25-26, ¶ 140). The Court sentenced Mr. Nelson to a total of 1,680 months of incarceration: 360 months each as to Counts I through IV, to run consecutively, and 240 months each as to Counts V through VII, each term to run concurrently to each other but consecutive to Counts I through IV. (Crim. Doc. 19, p. 2).

On July 10, 2015, Mr. Nelson appealed the judgment in his case to the United States Court of Appeals for the Eleventh Circuit. (Crim. Doc. 22). On January 13, 2016, a panel of the Eleventh Circuit dismissed Mr. Nelson's appeal because Mr. Nelson's...