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Blake v. United States

United States District Court, W.D. Texas, San Antonio Division

December 11, 2019

ROBERT TIMOTHY BLAKE, # 46959-380 Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE

         Before the Court are pro se Movant Robert Timothy Blake's (“Blake”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Section 2255 Motion”) (ECF No. 93); the Government's Response (ECF No. 96); Blake's Reply (ECF No. 103); Blake's Supplement (ECF No. 104); the Government's Response to the Supplement (ECF No. 108); and Blake's Reply to the Supplement (ECF No. 112). For the following reasons, Blake's Section 2255 Motion is DENIED.

         Procedural Background

         On February 4, 2015, Blake was charged in a five-count indictment with violations of 18 U.S.C. § 2252A(a)(2) & (b) and 18 U.S.C. § 2252A(a)(5)(B). (ECF No. 15). Count I charged Blake with distribution of child pornography, Count II charged him with receipt of child pornography, and Counts III through V charged him with possession of child pornography. (Id.). On January 7, 2016, Blake pleaded guilty to Counts I and III of the indictment. (ECF No. 41).

         The Presentence Investigative Report (PSI) reflected a base offense level of 22, pursuant to U.S.S.G. § 2G2.2(a)(2). (ECF No. 59 at 8). However, the following levels were added to the base level:

• two levels because the material in Blake's collection involved a prepubescent minor who had not attained the age of 12 years, see Id. § 2G2.2(b)(2);
• five levels for distribution for the receipt or expectation of receipt of a thing of value but not for pecuniary gain, see Id. § 2G2.2(b)(3)(B);
• four levels for material that portrays sadistic or masochistic conduct or other depictions of violence, see Id. § 2G2.2(b)(4);
• five levels for pattern of activity involving the sexual abuse of a minor, see Id. § 2G2.2(b)(5);
• two levels for the use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of the material or for accessing with intent to view the material, see Id. § 2G2.2(b)(6); and
• five levels because Blake was found to be in possession of more than 600 images, see Id. § 2G2.2(b)(7)(D). (Id. at 8-9).

         These additions resulted in a total offense level of 45, which was then reduced by three levels for acceptance of responsibility, see Id. §§ 3E1.1(a) and (b), for a total adjusted offense level of 42. (ECF No. 59 at 9). Based on a total offense level of 42 and a Criminal History Category I, Blake's advisory guideline range was determined to be 360 months to life imprisonment. (Id. at 15). However, because the statutorily authorized maximum sentences were less than the maximum of the applicable guideline range, the advisory guideline range was reduced from 360 months - life imprisonment to 360 - 480 months imprisonment, see U.S.S.G. § 5G1.2(b). (Id.).

         However, at sentencing, the Court sustained defense counsel's argument opposing a five- level increase based on a pattern of activity involving the sexual abuse of a minor. (ECF No. 73 at 29). As a result, the adjusted offense level was reduced to 37 and the advisory guideline range was lowered to 210 - 262 months imprisonment. (Id. at 30). On June 29, 2016, Blake was sentenced to a term of 240 months imprisonment on Count I, and a term of 22 months imprisonment on Count III, with both terms to be served consecutively for a total term of imprisonment of 262 months. (ECF No. 63). Additionally, Blake was sentenced to lifetime supervised release and ordered to pay a $100.00 special assessment on each count and $9, 000.00 in restitution to three of the victims of his offenses. (Id.). Pursuant to the Plea Agreement, the remaining three counts alleged in the indictment were dismissed.

         Blake appealed, arguing: (1) the Government breached the plea agreement at sentencing; (2) his sentence was not reasonable; (3) the Court failed to subject his sentence to a thorough adversarial testing as contemplated by Federal Sentencing Procedure; and (4) his sentence exceeded the statutory maximum to which he pleaded. (ECF No. 66). The Fifth Circuit rejected these arguments and dismissed the appeal, finding “Blake's remaining claims challenging the substantive reasonableness of the sentence and the adversarial nature of the sentencing hearing [were] barred by the appeal waiver.” (ECF No. 97 at 4).

         On September 13, 2018, Blake executed the present Section 2255 Motion, alleging trial counsel rendered ineffective assistance by: (1) erroneously advising him he would receive probation if he pleaded guilty; (2) failing to adequately inform him of the consequences of accepting the plea bargain; (3) failing to have any member of the defense team actually look at the photographs found on his computer; (4) failing to investigate his theory that the images were put on his computer by someone else; (5) failing to present witnesses at sentencing; (6) failing to object to the Government's introduction of improper evidence at the sentencing hearing; (7) failing to object to the Government's misrepresentation of evidence at the sentencing hearing; (8) failing to adequately explain the Federal Sentencing Guidelines to him; and (9) advising him to plead guilty after he told counsel some of the allegations were untrue. (ECF No. 93).

         The Government filed a response arguing Blake could not show cause and prejudice in this case and moreover, made no claim of actual innocence (ECF No. 96 at 5-6); alternatively, the Government argued Blake failed to show counsel's performance was deficient and the deficient performance prejudiced his defense (id. at 12-20). Blake then filed a Reply to the Government's Response stating he was seeking to “present to the Court for its review Supporting Facts for the Grounds presented in [his] 2255 motion.” (ECF No. 103 at 1). However, in his Reply, Blake alleges for the first time that he is innocent of the charge of distribution of child pornography. (Id.). Attached to Blake's Reply are the following: two affidavits from Deborah Gabrielle Warren Blake; eleven letters of support from family members, an employer and a colleague; an excerpt from the sentencing transcript; and several documents purporting to establish Blake's residency. (Id.).

         Applicable Law

         1. Legal Standard

         A federal defendant may move to vacate, set aside, or correct his sentence if: (1) the imposition of the sentence was in violation of the Constitution or the laws of the United States; (2) the District Court that imposed the sentence lacked jurisdiction; (3) the sentence imposed was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). Thus, section 2255 post-conviction relief is reserved for errors of constitutional dimension and other injuries that could not have been raised on direct appeal and, if left unaddressed, would result in a complete miscarriage of justice. See, e.g., United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998); United States v. Payne, 99 F.3d 1273, 1281 (5th Cir. 1996).

         2. Waiver

         A defendant may waive his right to direct appeal and collateral attack of a conviction and sentence by means of a plea agreement as long as the waiver is both knowing and voluntary. See, e.g., United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005); United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005); United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994). “[W]hen the record of the Rule 11 hearing clearly indicates that a defendant has read and understands his plea agreement, and that he has raised no question regarding a waiver-of-appeal provision, the defendant will be held to the bargain to which he agreed, regardless of whether the court specifically admonished him concerning the waiver of appeal.” McKinney, 406 F.3d at 746 (quoting Portillo, 18 F.3d at 293). A district court must first determine whether the waiver was voluntary and knowing, and then evaluate whether the waiver “applies to the circumstances at hand, based upon the plain language of the agreement.” Bond, 414 F.3d at 544 (citing McKinney, 406 F.3d at 746-47).

         A defendant knowingly enters a waiver when “the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances - even though the defendant may not know the specific detailed consequences of invoking it.” United States v. Ruiz, 536 U.S. 622, 629 (2002). A plea qualifies as intelligent when the defendant enters it after receiving “real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” Bousley v. United States, 523 U.S. 614, 618 (1998).

         The Supreme Court's decision in Boykin v. Alabama requires a hearing prior to entry of a guilty plea, at which the Court must elicit an affirmative showing that the decision to plead guilty was voluntarily and intelligently made. 395 U.S. 238, 243 (1969); Matthew v. Johnson, 201 F.3d 353, 367 n.22 (5th Cir. 2000). Rule 11 of the Federal Rules of Criminal Procedure provides procedural safeguards for assuring guilty pleas are voluntary and knowing, by requiring a judge to ensure the defendant understands the law governing his crime in relation to the facts of his case, as well as his rights as a criminal defendant. United States v. Vonn, 535 U.S. 55, 62 (2002); see Fed. R. Crim. P. 11.

         However, a determination of whether a defendant understands the consequences of his guilty plea, including the waiver of his right to appeal or collaterally attack his conviction and sentence, does not require the trial court to conclude the defendant has a perfect understanding of the consequences; rather, the court must only establish the defendant understands the charges and has a realistic understanding of the consequences. United States v. Gracia, 983 F.2d 625, 627-28 (5th Cir. 1993). The court must also ensure there was no coercion to enter the guilty plea. Id. Compliance with the admonishments required under Rule 11 “provides prophylactic protection for the constitutional rights involved in the entry of guilty pleas.” Id. at 627; see Fed. R. Crim. P. 11.

         3. Ineffective Assistance of Counsel

         Even if a defendant waives his right to appeal or collaterally attack his plea and sentence, he can avoid those waivers based on a claim of ineffective assistance of counsel if he shows “the claimed assistance directly affected the validity of that waiver or the plea itself.” United States v. White, 307 F.3d 336, 343 (5th Cir. 2002). An ineffective assistance of counsel claim in the context of a guilty plea is subject to the same ...


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