McNiell v. United States of America
MEMORANDUM OPINION AND ORDER that the 1 Motion to Vacate, Set Aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255 filed by Justin Clay McNiell is hereby DENIED. This case is hereby DISMISSED WITH PREJUDICE. Signed by Judge Virginia Emerson Hopkins on 11/30/2017. (JLC)
2017 Nov-30 PM 03:31
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JUSTIN CLAY MCNIELL,
UNITED STATES OF
Case No.: 5:16-CV-8142-VEH
MEMORANDUM OPINION AND ORDER
I. BACKGROUND AND PROCEDURAL HISTORY
On October 28, 2014, Justin Clay McNiell (hereinafter referred to as
“McNiell”) pled guilty to one count (Count One) of having knowingly received
child pornography and material that contains child pornography, in violation of
Title 18, United States Code, Section 2252A(a)(2) and to one count (Count Two)
of having knowingly distributed child pornography and material that contains
child pornography, in violation of Title 18, United States Code, Section
2252A(a)(2). (Plea agreement at 1; Doc. 9 in United States v. McNeill, Case
Number 5:14-CR-270-VEH-JHE). In exchange, the Government agreed, at
sentencing, to move to dismiss one count (Count Three) of having knowingly
possessed and accessed with intent to view a computer laptop that contains an
image of child pornography, including an image that involved a prepubescent
minor and a minor who had not attained 12 years of age, in violation of Title 18,
United States Code, Sections 2252A(a)(5)(B) and (b)(2). (Id.).
On August 20, 2015, this Court sentenced McNiell to 240 months custody
as to Counts One and Two separately and concurrently with 120 months of
supervised release to follow.1 (Judgment of Conviction, Doc. 34 in United States
v. McNeill, Case Number 5:14-CR-270-VEH-JHE). The Court granted the
Government’s motion to dismiss Count Three. (Id.). McNiell did not appeal.
On August 15, 2016, McNiell filed a petition pursuant to 28 U.S.C. § 2255.
(Doc. 1).2 The Government has filed an Opposition (doc. 9). In its Opposition, the
Government stated, inter alia, that the movant should be required to amend his
petition. On June 6, 2017, this Court entered an Order agreeing that amendment
was required. (Doc. 10). The Court stated:
Specifically, movant is hereby ORDERED as follows:
IF movant is raising any claim that his counsel was ineffective
at the movant’s sentencing as to any specific failure not
addressed in the Government’s response, he MUST file an
The Government urged the court to impose a low-end guidelines sentence of 292
months custody followed by supervised release for life. Transcript of sentencing hearing, doc. 38,
p. 10 at ll. 21-23 in Case 5:14-CR-270-VEH-JHE.
Doc. 36 in Case 5:14-CR-270-VEH-JHE.
amended petition setting out with specificity “what Attorney
Tewalt failed to object to” at sentencing that movant states
Attorney Tewalt should have objected to. Movant is hereby
cautioned that any failure by him to amend as ordered in
this paragraph 1 will be deemed a waiver of any alleged
failure of Attorney Tewalt at sentencing other than those
addressed in the Government’s response.
Movant MUST file an amended petition setting out the
specifics regarding his claim that Attorney Tewalt was
ineffective in not filing a notice of appeal. Specifically, movant
MUST state, in that amended petition:
When movant asked Attorney Tewalt to file a
notice of appeal (and, if on more than one
occasion, the approximate times of each such
How movant made each request specified in
subparagraph a. above (in person, by mail, by
telephone, or by any other means);
Where movant and Attorney Tewalt where located
at the time of each request specified in
subparagraph a. above; and
As to each request specified in subparagraph a.
above, what aspect of the criminal proceeding
(plea hearing, sentencing hearing, or other)
movant wanted Attorney Tewalt to challenge by
Movant is hereby cautioned that any failure by him to amend as
ordered in this paragraph 2 will be deemed a waiver of any claim
based on the failure of Attorney Tewalt to file an appeal.
The deadline for movant to file any amended petition is July 10,
(Doc. 10 at 1-3).
McNiell DID NOT RESPOND. Accordingly, he has waived:
Any alleged failure of Attorney Tewalt at sentencing other than those
addressed in the Government’s opposition.
Any claim based on the failure of Attorney Tewalt to file an appeal.
1. Overview of Section 2255
Section 2255 enables a prisoner to challenge his sentence; however, there
are procedural limitations on a § 2255 motion. Procedural default is one of those
limitations. Generally, if a defendant does not raise an argument regarding his
sentence on direct appeal, then he may not seek collateral review of his sentence
by way of a § 2555 challenge. See Massaro v. United States, 538 U.S. 500,
504 (2003). “The procedural-default rule is neither a statutory nor a constitutional
requirement, but it is a doctrine adhered to by the courts to conserve judicial
resources and to respect the law’s important interest in the finality of judgments.”
(Id.). However, claims of ineffective assistance of counsel typically may be raised
by means of a § 2255 challenge even after an unsuccessful direct appeal. (See id.).
Indeed, such a challenge is generally “[t]he preferred means for deciding a claim
of ineffective assistance of counsel.” United States v. Patterson, 595 F.3d 1324,
1328-29 (11th Cir.2010) (citing Massaro v. United States, 538 U.S. at 504).
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
was enacted on April 24, 1996, and, pertinent to this case, added a new
subdivision to 28 U.S.C. § 2255 providing for a one-year period of limitations
within which federal prisoners must file their motions to vacate pursuant to 28
U.S.C. § 2255. Akins v. United States, 204 F.3d 1086, 1089 (11th Cir. 2000), cert.
denied, 531 U.S. 971 (2000).
A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of—
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f).
McNiell makes no argument, and presents no facts, in favor of the court’s
application of subsections (2), (3), or (4) of § 2255(f). Thus, the timeliness of the
pending motion is calculated under 2255(f)(1) based upon the date on which
McNiell's judgment of conviction became final. In this case, the Judgment of
Conviction was entered on August 20, 2015. McNiell did not appeal. Therefore,
his conviction became final fourteen days later, on September 3, 2015, when the
time in which he could appeal expired. FED. R. APP. P. 4(b)(1)(A)(i). Thus, the
one-year statute of limitations ran on September 3, 2016, and the Petition itself,
deemed filed August 15, 2016, is timely.
3. The Strickland Standard
To warrent relief, a claim of ineffective assistance of counsel must meet the
two-pronged standard set out at Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). That is, McNiell must show both (1) that counsel's
performance was deficient and “fell below an objective standard of
reasonableness”; and (2) that the deficient performance prejudiced the defendant.
Id. at 687-88. Here, because the Court finds that McNiell has not shown prejudice,
it need not examine or address counsel’s performance.3 See Strickland v.
To be clear, the Court’s omission of such discussion and analysis should not be read to
indicate that counsel’s performance was in fact deficient.
Washington, 466 U.S. at 697, 104 S. Ct. at 2069 (“[A] court need not determine
whether counsel's performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. *** If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.”).
a. McNiell was not prejudiced at the plea stage
McNiell argues that his counsel was ineffective at the plea stage because his
counsel “misled him into signing an open plea against his knowledge and wishes.”
(Doc. 1 at 2). McNiell further states that he “advised counsel that he was not
interested in an open plea. Counsel then without petitioner’s full knowledge, ....
tricked him into signing an open plea agreement.” (Id.). The Government has
interpreted McNiell’s reference to an “open” plea agreement as a plea agreement
that is not made pursuant to FED. R. CRIM. P. 11(c)(1)(C). A plea agreement made
pursuant to that Rule, if accepted by the Court, is binding upon the Court.
However, McNiell has failed to allege that the Government was willing to offer a
Rule 11 plea, that the Court was willing to accept one, or that he would have gone
to trial if he had understood that the plea was “open.” Each of such omissions is
fatal to McNiell’s claim. See Hill v. Lockhart, 474 U.S. 52, 60, 106 S. Ct. 366,
371, 88 L. Ed. 2d 203 (1985), (holding that Petitioner did not meet second prong
of Strickland test when “Petitioner did not allege ... that, had counsel correctly
informed him about [claimed error], he would have pleaded not guilty and insisted
on going to trial. He alleged no special circumstances that might support the
conclusion that he placed particular emphasis on [claimed error] in deciding
whether or not to plead guilty.”).
Further, in light of the language in the plea agreement itself, the Guilty Plea
Advice of Rights form, and the colloquy between the Court and McNiell during
his plea hearing, all of which are referenced at length and with specific citations to
the record in the Government’s Opposition, the Court finds that McNiell has
wholly failed to show that he was in any ways misled as to the nature of the plea
agreement (that is, that it was not binding on the Court). The Court particularly
finds that McNiell’s own statements to the Court during that hearing belie his
assertions in his petition. See United States v. Medlock, 12 F.3d 185, 187 (11th
Cir. 1994) (“There is a strong presumption that the statements [made under oath by
a defendant] during the colloquy are true.”).
All of these deficiencies apply equally to McNiell’s claim that he was
prejudiced by his attorney’s alleged representation that he “would receive a five
year sentence” (doc. 1 at 3) or that “the court would likely impose the five-year
b. McNiell was not prejudiced at the sentencing stage
McNiell argues that his counsel was ineffective at the sentencing stage
because he “fail[ed] to present mitigating factors which would have changed the
outcome of the proceedings.” (Doc. 1 at 3). Apparently those mitigating factors
were “the result[s] of [McNiell’s] psychosexual analysis test which demonstrate
the [McNiell] was not a pedophile or a danger to the community,” (id.), and the
fact that McNiell “had been sexually abused as a child, and while [he] was housed
in the detention facility” (id. at 4). However, McNiell overlooks the fact, while the
Court did not have before it the results of McNiell’s psychosexual analysis test,
his history of being sexually abused as a child, beginning at age four, was set out
in ¶ 94 of the Presentence Report, as was his report of having been sexually
assaulted by other prisoners while he was in custody at the Cullman County,
Alabama, Detention Center on the instant offenses. This Court adopted the factual
statements contained in the presentence report, necessarily including the facts set
out in ¶ 94. (Doc. 9-3 at 4, ll. 7-8). Thus, McNiell’s argument is limited by the
facts to merely guessing that, had his counsel presented to the Court the results of
his psychosexual analysis test, this Court “would likely impose the five-year
[statutory minimum] sentence.” (Id.).4 However, nothing in the record supports
First, the Court points out that, at the sentencing hearing, McNiell stated
that he had read and discussed the presentence investigation report with his
attorney. (Doc. 9-3 at 3, ll. 20-22). The Court then advised him that “Any facts that
are in the presentence investigation report that are not objected to before your
sentence is imposed are considered to have been proven or established for
purposes of determining what is an appropriate sentence in this case. Do you have
any objections to any of the content of the presentence investigation report?” (Id.
at 3, l. 23 - 4, l. 3). McNiell responded, “No ma’am, Your Honor.” (Id. at 4, l. 4).
Significantly, McNiell did not tell the Court that the presentence report was
incomplete in any manner, much less that it was incomplete because it did not
include the results of his psychosexual analysis test.
Additionally, at the sentencing hearing, McNiell’s attorney asked the Court
to vary downward from the advisory guideline range based on the sexual abuse
that McNiell suffered from a “very early age, as indicated in the PSR. And
throughout his adolescent and teenage years....” (Id. at 6, ll. 23-24). McNiell’s
McNiell also ignores the fact that, while he was sentenced to the statutory maximum for
each of Counts One and Two, the Court chose to run his sentences concurrently rather than
attorney also pointed out that, despite that abuse, as an adult, McNiell was
“engaged at the time of his arrest and for months prior to that in a health adult
relationship and not seeking any type of interaction with children.” (Id. at 7, ll. 68). McNiell’s attorney argued that McNiell’s interest in child pornography was an
effort to “feel normal about what had happened to him in his life” (id. at 7, ll. 910), and was “not for the purpose of trying to seek children out and molest them,
but to try and make [himself] feel less guilty and less culpable for what was
actually done to [him]” (id. at 7, ll. 17-20). He further argued that “McNiell was
doing the best he could under the circumstances of his life to try and adjust to
normalcy of life without trying to injure anybody else in the process.” (Id. at 8, ll.
13-16). He argued that a variance was appropriate because Congress, in addressing
the child pornography guidelines, “want[ed] people to not look at child
pornography as it could lead towards other actions and creation of child
pornography and abuse against children” (id. at 8, ll. 20-22), but that “there is not
indication in this case factual basis or this case history that Mr. McNeill [sic] was
or was going to ever be a threat to children. Again, he was in a healthy adult
relationship while in possession of these pictures to try and make himself feel less
culpable about what had been done to him as a child.” (Id. at 8, l. 24 - 9, l. 4).
McNiell’s attorney also pointed out McNiell’s ongoing vulnerability to sexual
assault by others, telling the Court that vulnerability was “indicated by the fact that
while [McNiell] was in custody in Cullman County, he was assaulted there. He has
since been transferred to other facilities and the marshals have been taking very
careful care of him to ensure his safety, but he is still one of those individuals that
will be taken advantage of by others with more nefarious purposes.” (Id. at 6, l. 25
- 7, l. 6). In closing, McNiell’s attorney urged the court to vary because “[McNiell
is] probably one of the nicest, softest, most docile individuals [his counsel had]
ever met. And yet, he was taken advantage of by monsters and just wanted to feel
normal. That’s why he did what he did, and I believe that is worthy of a variance
in this case, Your Honor.” (Id. at 9, l. 24 - 10, l. 3).5
Prior to the sentencing hearing, McNiell’s attorney filed a combined
sentencing memorandum and motion for a downward variance to a the statutory
minimum sentence of 60 months. At the sentencing hearing, his counsel urged the
court to vary to that sentence. McNiell has provided no particularized criticism of
his counsel’s performance at sentencing, other than his failure to provide the Court
with a copy of the results of his psychosexual test.6
During allocation, McNiell also told the Court these facts.
McNiell also asserts that his counsel failed to present to the Court mitigating factors,
specifically, that he had been sexually abused as a child and while detained in this case.
However, the Court has already shown that: (1) this information was in the Presentence Report;
McNiell has wholly failed to show that such failure by his counsel arose to
the level of a Constitutional deficiency. Additionally, given all the information
that was provided to the Court through the PSR, defense counsel at the sentencing
hearing, and by McNiell himself at that hearing, McNiell has failed to explain how
a copy of the test results would have resulted in this Court imposing a lower
sentence. Accordingly, he has also failed to show prejudice from such omission.
IV. CONCLUSIONS AND ORDER
For the reasons set out above, the undersigned finds that all of McNiell’s
ineffective assistance claims lack merit. The Court specifically finds there is no
need for an evidentiary hearing. Any of McNiell's allegations not specifically
addressed herein have been found to be without merit.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1. The motion to vacate, set aside, or correct an illegal sentence pursuant to
28 U.S.C. § 2255 filed by Justin Clay McNiell (Doc. 1) is DENIED.
2. This case is DISMISSED with prejudice.
3. The Clerk of the Court shall enter judgment accordingly and is directed to
close this case.
(2) counsel also spoke to the Court at the sentencing hearing about this information and urged the
Court to vary in consideration of it; and (3) McNiell himself told the Court about these facts
4. A certified copy of this Order and the judgment shall also be filed in
criminal case number 5:14-cr-270-VEH-JHE.
5. The Clerk of the Court is directed to terminate the § 2255 motion
(Criminal Case Doc. 36) filed in criminal case number 5:14-cr-270-VEH-JHE.
DONE and ORDERED this the 30th day of November, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
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