Nelson v. United States of America
Filing
17
MEMORANDUM OPINION AND ORDER - Because Mr. Nelson's § 2255 motion, (Doc. 1 ), and brief in reply, (Doc. 15 ), do not challenge his representation on appeal, the Court finds Doc. 7 moot. Accordingly, the Court denies Mr. Nelson's ineffective assistance claims based on grounds two through six. The Court will set an evidentiary hearing to evaluate Mr. Nelson's ineffective assistance of counsel claim relating to his Miranda waiver. Signed by Judge Madeline Hughes Haikala on 4/22/2021. (KEK)
FILED
2021 Apr-22 PM 03:05
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JEREMY JOSEPH NELSON,
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Plaintiff,
v.
Case No.: 5:17-cv-08012-MHH
UNITED STATES OF AMERICA,
Defendant.
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 1,680month 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.
1
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-ofcounsel 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 of
2
other 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.
3
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).
4
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 using
1
These facts are set out in Mr. Nelson’s Presentence Investigation Report. (Crim. Doc. 17). The
Court adopted these facts without change during Mr. Nelson’s sentencing hearing. (Crim. Doc.
33, p. 6). “Crim. Doc.” refers to docket entries in Mr. Nelson’s underlying criminal case, No.
5:14-cr-00372-MHH-JEO-1.
5
hidden 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 Distribution
6
of 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).
2
In the waiver provision, Mr. Nelson preserved his right to contest in an appeal or in a postconviction motion a sentence above the applicable statutory maximum sentences, a sentence above
the top of the guideline sentencing range determined by the Court at the time of sentencing, and a
proceeding impacted by ineffective assistance of counsel.
7
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 plea agreement contained a valid appeal waiver. (Crim. Doc. 35). Mr.
Nelson allowed his time to seek a writ of certiorari to the Supreme Court of the
United States to expire on April 13, 2016. Murphy v. United States, 634 F.3d 1303,
1307 (11th Cir. 2011) (“[W]hen a defendant does not appeal his conviction or
sentence, the judgment of conviction becomes final when the time for seeking that
review expires.”); Rule 13.1, RULES OF THE SUPREME COURT (“[A] petition for a writ
of certiorari to review a judgment in any case, civil or criminal . . . is timely when it
is filed with the Clerk of this Court within 90 days after entry of the judgment.”).
8
Mr. Nelson filed this § 2255 motion on April 3, 2017. (Doc. 1). Before
responding, the United States contacted Michael T. Tewalt, the Assistant Federal
Public Defender who represented Mr. Nelson through judgment, and requested an
affidavit concerning Mr. Nelson’s ineffective assistance of counsel claims. (Doc. 5,
p. 1). 3 The Federal Public Defender requested a ruling from this Court on whether
Mr. Nelson had waived attorney-client privilege with respect to confidential
communications between Mr. Nelson and the Federal Public Defender’s Office
regarding his unsuccessful direct appeal to the Eleventh Circuit. (Doc. 7). The
Federal Public Defender explained that while Mr. Nelson’s § 2255 motion did not
raise an ineffective assistance of counsel claim with respect to the direct appeal, the
Federal Public Defender wanted to ensure it covered its bases if the Court liberally
construed Mr. Nelson’s claims as including a challenge to the Federal Public
Defender’s representation on direct appeal. (Doc. 7, p. 2, ¶ 4). Because Mr.
Nelson’s § 2255 motion, (Doc. 1), and brief in reply, (Doc. 15), do not challenge his
representation on appeal, the Court finds Doc. 7 moot.
3
Mr. Tewalt no longer works for the Federal Public Defender’s Office. (Doc. 12-1, p. 1).
9
III.
In his § 2255 motion, Mr. Nelson contends that his trial counsel was
ineffective for six reasons. First, Mr. Nelson argues that his counsel “failed to make
any effort whatsoever toward suppression of any statement, waiver, or evidence
obtained by the police.” (Doc. 1, p. 13). Second, his attorney “failed to provide any
defense whatsoever concerning Counts 1-4. Counsel should have recognized that
the prosecution could prove almost none of the elements of the crime.” (Doc. 1, p.
15). Third, his attorney “failed to ensure that the plea agreement was understood by
[Mr. Nelson and] embodied equitable terms.” (Doc. 1, p. 16). Fourth, his attorney
“failed to challenge the constitutionality of the statutes and sentencing guidelines.”
(Doc. 1, p. 18). Fifth, his attorney “failed to ensure that [Mr. Nelson] received a
copy of the presentence report (PSR) in a timely manner, nor was it ever seen by
[Mr. Nelson] before sentencing.” (Doc. 1, p. 19). Finally, his attorney “failed to
perform at an objective standard of reasonableness due to a conflict of interest.”
(Doc. 1, p. 20). The Court addresses each claim in turn.
Suppression of Evidence
Mr. Nelson argues that Mr. Tewalt should have challenged the voluntariness
of his (Mr. Nelson’s) Miranda waiver. He asserts that he was incapacitated when
he waived his rights because when law enforcement came to his house on October
7, 2014, he had injected insulin (which had “resulted in an extremely low blood sugar
10
level”), he was drunk, and he was sleep deprived. (Doc. 1, pp. 13–14). He says that
his attorney “was ineffective for failing to realize this and fulfill his role as an
advocate . . . .” (Doc. 15, p. 20).
Mr. Nelson argues that “it would make no sense, ‘strategically’ or otherwise,
for a defense attorney to forego a defense that had even a low chance of success,
especially when so few (or no) other options are presenting themselves.” (Doc. 15,
p. 15). Mr. Nelson points out that “even if the suppression hearing failed, the issue
[would have been] preserved for direct appeal.” (Doc. 15, p. 15). Courts have held
that failing to object to, or failing to move to suppress statements or evidence, can
be prejudicial. See, e.g., Rivera v. Thompson, 879 F.3d 7, 17 (1st Cir. 2018)
(counsel’s failure to move to suppress defendant’s un-Mirandized statements was
unreasonable because contrary to “clearly established Federal law”); Preston v.
Superintendent Graterford SCI, 902 F.3d 365, 377 (3d Cir. 2018) (counsel’s failure
to object to admitted statements was unreasonable because there was no strategic
explanation for action); Hendrix v. Palmer, 893 F.3d 906, 922–23 (6th Cir. 2018)
(counsel’s failure to move to suppress clearly inadmissible statements unreasonable
because no strategic benefit).
To establish that Mr. Tewalt’s representation was deficient because he failed
to move to suppress evidence gathered as a result of Mr. Nelson’s statements to law
enforcement, Mr. Nelson must demonstrate that his attorney was aware of the
11
suppression issue. Mr. Nelson’s attorney told the Court that he reviewed Mr.
Nelson’s “waiver of his Miranda rights prior to the seizure.” (Crim. Doc. 32, p. 22,
tpp. 13–14). But Mr. Nelson’s attorney did not explain why he did not try to
challenge Mr. Nelson’s Miranda waiver and the evidence law enforcement officers
gathered because of Mr. Nelson’s statements. The record does not reflect what Mr.
Nelson told his attorney about his incapacity on the day of his arrest.
The United States argues that Mr. Nelson’s attorney acted strategically
because moving to suppress the statements or evidence would have been frivolous.
(Doc. 12, p. 8). The government submits that before contacting Mr. Nelson in
October 2014, “law enforcement had sufficient evidence that Mr. Nelson was guilty
of numerous child pornography violations.” (Doc. 12, p. 8). This included Mr.
Nelson’s “shared images of child pornography with another target of a criminal
investigation in Nashville, Tennessee.” (Doc. 12, p. 8).
That may be true, but no evidence in the criminal record or in the § 2255
record demonstrates that the United States had grounds to charge Mr. Nelson for
production of child pornography until investigators interviewed Mr. Nelson in
October 2014. The investigatory report prepared by federal investigators appended
to the United States’ response to Mr. Nelson’s § 2255 motion states that Mr.
Nelson’s confession led them to the hidden cameras he had placed in businesses in
Huntsville and resulted in the recovery of covert video cameras, electronic data
12
storage devices, computers, and more. (Doc. 12-2, pp. 1–5). Thus, it appears that
the United States relied on Mr. Nelson’s Miranda waiver and cooperation to develop
evidence to prosecute Mr. Nelson for the crime of production of child pornography.
Because the record does not indicate whether Mr. Nelson and his attorney
discussed Mr. Nelson’s alleged incapacity to wave his rights or a motion to suppress
the evidence gathered from Mr. Nelson’s house and other locations in Huntsville,
the Court will hold an evidentiary hearing to resolve this portion of Mr. Nelson’s §
2255 motion.
Defense on Counts I-IV
Mr. Nelson argues that Mr. Tewalt provided no defense with respect to Counts
I through IV, and Mr. Tewalt “should have recognized that the prosecution could
prove almost none of the elements of the crime.” (Doc. 15, p. 20). As noted, in
Counts I through IV, Mr. Nelson was charged with the crime of Sexual Exploitation
of Children in violation of 18 U.S.C. § 2251(a). The statute provides:
Any person who employs, uses, persuades, induces, entices, or coerces
any minor to engage in, or who has a minor assist any other person to
engage in, or who transports any minor in or affecting interstate or
foreign commerce, or in any Territory or Possession of the United
States, with the intent that such minor engage in, any sexually explicit
conduct for the purpose of producing any visual depiction of such
conduct or for the purpose of transmitting a live visual depiction of such
conduct, shall be punished as provided under subsection (e), if such
person knows or has reason to know that such visual depiction will be
transported or transmitted using any means or facility of interstate or
foreign commerce or in or affecting interstate or foreign commerce or
13
mailed, if that visual depiction was produced or transmitted using
materials that have been mailed, shipped, or transported in or affecting
interstate or foreign commerce by any means, including by computer,
or if such visual depiction has actually been transported or transmitted
using any means or facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce or mailed.
18 U.S.C. § 2251(a). Mr. Nelson argues that “the only depictions that were produced
were those of people changing clothes, and this does not satisfy the burden of proof
placed upon the prosecution.” (Doc. 1, p. 15). He contends that “there were no
instructions given. No one was employed, used, persuaded, induced, enticed, or
coerced in any way, to perform in any manner or to do any thing [sic].” (Doc. 15,
p. 21). And because “[t]he focal point of the depiction is not on the genitalia or
pubic area . . . there is . . . no support for a finding of lasciviousness.” (Doc. 15, p.
22).
Mr. Nelson submits that when he brought this matter to Mr. Tewalt’s
attention, “counsel informed the petitioner that because the camera was placed in a
bathroom, it was enticement, therefore the only option was to plead guilty. This is
utter hogwash and yet one more tactic used by counsel to force a guilty plea.” (Doc.
15, p. 21). But the Eleventh Circuit held in U.S. v. Holmes that “the statutory phrase
‘lascivious exhibition of the genitals or pubic area’ may include depictions of the
‘otherwise innocent’ conduct of a minor which are surreptitiously taken by an
alleged producer and made lascivious based upon the actions of the producer, not
the child.” 814 F.3d 1246, 1251 (11th Cir. 2016). Mr. Holmes “contend[ed] the
14
images depict ‘mere nudity,’ making him at most a voyeur.” Holmes, 814 F.3d at
1251. The Eleventh Circuit disagreed, concluding that “depictions of otherwise
innocent conduct may in fact constitute a ‘lascivious exhibition of the genitals or
pubic area’ of a minor based on the actions of the individual creating the depiction.”
Holmes, 814 F.3d at 1251–52. In deciding that secret bathroom recordings could be
lascivious, the Eleventh Circuit noted that Mr. Holmes placed “the cameras in the
bathroom where his stepdaughter was most likely to be videoed while nude” and that
the camera angle demonstrated that Mr. Holmes’s focus was on capturing images of
the victim’s pubic area. Holmes, 814 F.3d at 1252.
Mr. Nelson’s conduct mirrors the conduct that the Eleventh Circuit concluded
constituted lascivious exhibition for the purposes of the child pornography statute.
Mr. Nelson’s attorney reviewed the evidence that the United States seized in its
investigation and reported that “Mr. Nelson had recorded thousands of hours of raw
video footage from hidden cameras . . . .” (Doc. 12-1, pp. 3–4). The factual basis
for Mr. Nelson’s plea agreement and the factual information in Mr. Nelson’s PSR
establishes that Mr. Nelson engaged in conduct that violated 18 U.S.C. § 2251(a).
(Crim. Doc. 10, pp. 4–11; Crim. Doc. 17, pp. 6–10). Many of the videos that Mr.
Nelson produced focused on the pubic areas of Mr. Nelson’s victims. (Crim. Doc.
17, p. 9, ¶ 22).
15
Based on the Holmes decision and the evidence on which the United States
relied, Mr. Nelson’s attorney was not ineffective for failing to argue that Mr.
Nelson’s conduct was video voyeurism and not child pornography because the
argument was without merit. Chandler, 240 F.3d at 917. Therefore, the Court denies
Mr. Nelson’s motion on this ground.
Mr. Nelson’s Plea Agreement
Mr. Nelson argues that Mr. Tewalt failed to ensure that he (Mr. Nelson)
understood his plea agreement and that the plea agreement was equitable.
In challenging his understanding of the plea agreement, Mr. Nelson argues
that he only had 15 minutes to review the plea agreement, (Doc. 1, p. 16), and that
“there was no possibility” that he “was afforded sufficient time to understand the
plea agreement due to the fact that he had no training in law; there were many
statutory elements to consider; counsel failed to adequately explain the elements of
the crimes, offer any alternative . . .; and counsel refused to allow the petitioner to
retain a copy of the plea agreement . . . .” (Doc. 15, p. 31). The record contradicts
Mr. Nelson’s arguments.
On January 26, 2015, Mr. Nelson and Mr. Tewalt signed a “Guilty Plea
Advice of Rights Certification.” (Crim. Doc. 9). Mr. Nelson initialed 44 paragraphs,
certifying that he understood what would happen at the change of plea hearing, what
substantive rights he would give up by pleading guilty, that the charges would again
16
be explained to him by the judge, that the judge would ensure he understood the
possible penalties, and that the judge would not be bound by the plea agreement.
(Crim. Doc. 9, pp. 1–4). Mr. Nelson signed the “Certification of Defendant” which
states:
I, Jeremy Joseph Nelson, hereby acknowledge that my attorney, whose
name is signed to the attorney certification below, has explained to me,
in detail each of the matters set out above.
I also certify that I am satisfied with the representation my attorney has
provided me, and that I have no complaints about any aspect of his or
her representation of me.
I further certify that I am not under the influence of any alcoholic
beverage, intoxicating liquor, drugs, medication, or other substance that
affected my ability to understand all of the matters set out above.
Finally, I certify that I am entering my guilty plea(s) because I am in
fact guilty, and I request that the court accept my plea(s).
(Crim. Doc. 9, pp. 4–5).
Mr. Nelson signed his 27-page plea agreement the same day. (Crim. Doc. 10).
Mr. Nelson initialed each page and signed the agreement on pages 11, 17, and 26.
(Crim. Doc. 10, pp. 11, 17, 26). The plea agreement identifies the maximum
punishment for each count to which Mr. Nelson pleaded guilty, (Crim Doc. 10, pp.
2–3), the factual basis for the plea, (Crim. Doc. 10, pp. 4–11), the recommended
sentence, (Crim. Doc. 10, pp. 11–16), Mr. Nelson’s waiver of right to appeal and to
post-conviction relief, (Crim. Doc. 10, pp. 16–17), an explanation of the United
States Sentencing Guidelines, (Crim. Doc. 10, p. 17), an acknowledgement that the
17
agreement is not binding on the Court, (Crim. Doc. 10, p. 18), an acknowledgement
that if Mr. Nelson moved to enter an Alford please or a plea of nolo contendere, the
plea agreement would become null and void, (Crim. Doc. 10, p. 18), an
acknowledgement that Mr. Nelson’s subsequent conduct could relieve the United
States of its obligation to be bound by the plea agreement, (Crim. Doc. 10, pp. 18–
19), an acknowledgement that the plea agreement only binds the United States
Attorney for this district, (Crim. Doc. 10, p. 19), an acknowledgement of the
collection of financial obligations, (Crim. Doc. 10, p. 19), an acknowledgement that
Mr. Nelson would have to register as a sex offender, (Crim. Doc. 10, pp. 24–25),
and a provision stating that Mr. Nelson had “read and underst[ood] the provisions of
this agreement.” (Crim. Doc. 10, pp. 25–26).
During Mr. Nelson’s February 18, 2015 change of plea hearing, the Court
asked Mr. Nelson if he was able to read both the Guilty Plea Advice of Rights
Certification and the plea agreement and discuss them with Mr. Tewalt. (Crim. Doc.
32, p. 9). Mr. Nelson answered in the affirmative. (Crim. Doc. 32, p. 9). The Court
reviewed the Guilty Plea Advice of Rights Certification with Mr. Nelson and asked
if he had initialed the numbered paragraphs and signed the document. (Crim. Doc.
32, pp. 10–11). Mr. Nelson answered “Yes, ma’am.” (Crim. Doc. 32, p. 11). The
Court reviewed the plea agreement with Mr. Nelson and asked him if he had initialed
the blanks on each of the 27 pages and signed the agreement on pages 11, 17, and
18
26. (Crim. Doc. 32, pp. 11–12). Mr. Nelson answered in the affirmative. (Crim.
Doc. 32, pp. 11–12).
The Court then asked Mr. Nelson’s attorney: “[i]t’s my understanding you
also reviewed this plea agreement with Mr. Nelson on a number of occasions after
the execution of the plea agreement, including today; is that correct?” (Crim. Doc.
32, p. 12). Mr. Nelson’s attorney answered yes. (Crim. Doc. 32, p. 12). The Court
reviewed the terms of the plea agreement. When the Court asked Mr. Nelson if he
understood the maximum penalty the Court could impose under each count, Mr.
Nelson answered that he did. (Crim. Doc. 32, pp. 12–15).
Mr. Nelson confirmed that the facts in the plea agreement were substantially
correct, that he understood that the Court would use those facts as a basis for
calculating a sentence, that he had a full opportunity to discuss the government’s
recommendation concerning sentencing with his counsel, and that the Court was not
bound by the government’s recommendation. (Crim. Doc. 32, pp. 15–16). The
Court reviewed the waiver provision that Mr. Nelson signed, and Mr. Nelson
acknowledged that he was voluntarily forfeiting his right to challenge on appeal the
Court’s decision about sentencing, with three limited exceptions. (Crim. Doc. 32, p.
17). Mr. Nelson confirmed that he understood the effects of the appeal waiver
provision and had discussed them with his attorney. (Crim. Doc. 32, pp. 17–18).
19
Finally, the Court explained to Mr. Nelson the constitutional rights that he
would forfeit if he pleaded guilty:
Mr. Nelson, as of right now, you have pled not guilty to the charges
against you, and you have certain rights in light of that not guilty plea.
You have the right to go to trial, and at trial the government would bear
the burden of proof and you would be presumed not guilty. You would
have the right to cross-examine any witnesses who the government
calls. You would have the right to call your own witnesses. You would
have the right to testify if you wanted to, but you couldn't be compelled
to testify. You would have the right to be represented by an attorney
throughout that trial. If the Court accepts a guilty plea from you in this
matter, you will be giving up all of those rights. Have you had an
adequate opportunity to discuss with Mr. Tewalt the rights that you will
be giving up if the Court accepts a guilty plea from you in this matter?
(Crim. Doc. 32, p. 20). Mr. Nelson answered in the affirmative. (Crim. Doc. 32, p.
20). Mr. Nelson indicated that he had an adequate opportunity to talk with his
attorney about the terms of the plea agreement. (Crim. Doc. 32, p. 21). The Court
noted the length of the plea agreement and asked Mr. Tewalt if he felt that he had
enough time to discuss the agreement with Mr. Nelson. (Crim. Doc. 32, p. 23). Mr.
Tewalt said he had. (Crim. Doc. 32, p. 23). The Court found that Mr. Nelson had
acted voluntarily in changing his plea from “not guilty” to “guilty.” (Crim. Doc. 31,
p. 25).
As the Eleventh Circuit had explained, “[t]here is a strong presumption that
the statements made during the [plea] colloquy are true.” U.S. v. Medlock, 12 F.3d
185, 187 (11th Cir. 1994) (citing United States v. Gonzalez-Mercado, 808 F.2d 796,
800 n.8 (11th Cir. 1987)). Mr. Nelson was 42 years old at his change of plea hearing.
20
(Crim. Doc. 32, p. 9). He had graduated from high school and had some college
education. (Crim. Doc. 17, p. 3; Crim. Doc. 32, p. 9). Mr. Tewalt described Mr.
Nelson as “a client of above average intelligence. He was always actively engaged
in the discussions and would often have a list of questions.” (Doc. 12-1, p. 7).
Given the record and the “strong presumption” that Mr. Nelson truthfully
stated in his change of plea hearing that he understood his plea agreement, Mr.
Nelson has not established that Mr. Tewalt’s discussions with him concerning the
plea agreement were inadequate. Additionally, because the Court reviewed the
terms of the plea agreement with Mr. Nelson during his change of plea hearing while
he was under oath, Mr. Nelson has not established that Mr. Tewalt’s allegedly
deficient review of the plea agreement with him prejudiced him.
Mr. Nelson argues that he received nothing of value in his plea agreement and
that Mr. Tewalt “acted as an agent for the prosecution when he coerced, pressured,
and threatened his client for the purpose of obtaining a guilty plea.” (Doc. 1, pp. 1718). Mr. Nelson asks: “what can it matter if one is to be sentenced to 140 years (the
sentence received), 180 years (the sentenced requested by the prosecution), or 3,900
years (the sentence threatened by the prosecution)? All three sentences equate to
‘never get out of prison alive.’” (Doc. 1, p. 17).
21
Again, the record contradicts Mr. Nelson’s argument. The plea agreement
states that in exchange for a guilty plea as to Counts I through VII, the United States
agreed “not to file additional charges for attempted production of child pornography,
receipt of child pornography, or possession of child pornography for images created
by [Mr. Nelson] at a dance studio in Huntsville, Alabama” which “could be more
than approximately 130 additional criminal counts . . . .” (Crim. Doc. 10, p. 1).
Because of the plea agreement, Mr. Nelson avoided a trial. At his sentencing
hearing, the mother of a ten-year-old victim spoke. (Crim. Doc. 33, p. 20). So did
the grandmother of two minor victims, one who was seven years old and one who
was eleven years old when Mr. Nelson filmed them in the bathroom of their dance
studio. (Crim. Doc. 33, pp. 21–22). Had he decided to maintain his plea of not
guilty and go to trial, Mr. Nelson would have had to confront that evidence and other
evidence concerning the one-million-plus images he had made and collected. (Crim.
Doc. 33, p. 22). 4
4
That evidence may have included images involving Mr. Nelson’s daughters or Mr. Nelson’s niece
who “had been video recorded while being molested.” (Doc. 12-1, p. 7). At Mr. Nelson’s
sentencing hearing, Mr. Tewalt stated that, “based on the nature of the emotions and everything
involved” in Mr. Nelson’s case, Mr. Nelson did not want to address the Court. (Crim. Doc. 33, p.
13).
22
Mr. Nelson’s parents likely would have sat through that difficult trial and
endured the publicity that a trial likely would produce. 5
With Mr. Nelson’s
permission, Mr. Tewalt kept Mr. Nelson’s father apprised of his case, (Crim. Doc.
32, p. 22), and Mr. Nelson may have consulted with his father before deciding how
to proceed. The record contains no support for Mr. Nelson’s assertion that Mr.
Tewalt threatened him to coerce a guilty plea. The Court specifically asked Mr.
Nelson if anyone had threatened him, and Mr. Nelson said no. (Crim. Doc. 32, p.
21). True, Mr. Nelson’s options were a choice between two unpleasant paths, but
he chose the easier path with the assistance of his attorney. Mr. Nelson has not
established that Mr. Tewalt’s advice concerning the plea agreement was inadequate.
Constitutionality of the Child Pornography Statutes and Sentencing
Guidelines
Mr. Nelson argues that Mr. Tewalt should have challenged the
constitutionality of the statutes and sentencing guidelines that governed the charges
against him. (Doc. 1, p. 18). Mr. Nelson contends that the statutes and guidelines
are void for vagueness, violate the ban on cruel and unusual punishment, exceed
Congress’s authority under the Commerce Clause, and infringe on the rights and
powers reserved to the states. (Doc. 1, p. 18).
5
Mr. Nelson’s aunt and uncle adopted him. Mr. Nelson regards his aunt and uncle as his parents.
(Crim. Doc. 17, p. 21).
23
Mr. Tewalt’s representation of Mr. Nelson was not deficient because he did
not challenge for vagueness the child pornography criminal statutes and sentencing
guidelines. “The Supreme Court has never held that the Sentencing Guidelines are
subject to a vagueness challenge.” In re Rivero, 797 F.3d 986, 991 (11th Cir. 2015).
The Eleventh Circuit has held that the “advisory sentencing guidelines cannot be
challenged as void for vagueness.” United States v. Matchett, 837 F.3d 1118, 1119
(11th Cir. 2016) (“[T]he vagueness doctrine applies only to laws that regulate the
primary conduct of private sentences. Advisory sentencing guidelines regulate
judges, not private individuals; they guide judicial discretion within a statutory
range. Advisory sentencing guidelines do not define crimes or fix punishments.”).
In contrast, a court may find a statute void for vagueness. “Because we so
highly value liberty, restrictions on our liberty must be spelled out with sufficient
clarity to put citizens on notice of what conduct is prohibited and with enough
definiteness to limit arbitrary law enforcement.” U.S. v. Acheson, 195 F.3d 645, 652
(11th Cir. 1999) (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)). “A statute
will be held void for vagueness if it does not ‘define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary or discriminatory
enforcement.’” Acheson, 195 F.3d at 652 (quoting Lawson, 461 U.S. at 357).
24
Congress has defined “child pornography” as “any visual depiction, including
any photograph, film, video, picture, or computer or computer-generated image or
picture” involving a minor engaged in “sexually explicit conduct.” 18 U.S.C. §
2256(8). Congress has defined “sexually explicit conduct” as actual or simulated
sexual intercourse between persons of the same or opposite sex; “bestiality; . . .
masturbation; . . . sadistic or masochistic abuse; or . . . lascivious exhibition of the
genitals or pubic area of any person . . . .” 18 U.S.C. § 2256(2)(A). In Acheson, the
Eleventh Circuit held that “the [Child Pornography Prevention Act] defines the
criminal offense with enough certainty to put an ordinary person on notice of what
conduct is prohibited. A reasonable person is on notice that possessing images
appearing to be children engaged in sexually explicit conduct is illegal.” Acheson,
195 F.3d at 652; see also United States v. Cabezas, 797 Fed. Appx. 415, 419 (11th
Cir. 2019) (“[W]e have explicitly held that 18 U.S.C. § 2252A is not
unconstitutionally vague.”). Because the Eleventh Circuit held in 1999 that statutes
criminalizing child pornography are not void for vagueness, Mr. Nelson’s attorney
was not ineffective for failing to challenge the constitutionality of the statutes on that
basis.
Similarly, Mr. Tewalt was not ineffective for foregoing a challenge to the
constitutionality of the punishments for child pornography crimes under the Eighth
Amendment’s prohibition on cruel and unusual punishment. In U.S. v. Johnson, Mr.
25
Johnson appealed his 140-year sentence for violating 18 U.S.C. §§ 2251(a) and
2252A(a)(1), arguing that his sentence was excessive and constituted cruel and
unusual punishment in violation of the Eight Amendment. 451 F.3d 1239, 1240,
1242 (11th Cir. 2006). The Eleventh Circuit rejected Mr. Johnson’s constitutional
challenge. The Court of Appeals explained that “a sentence within the statutory
limits generally does not violate the Eighth Amendment,” and “[o]utside the context
of capital punishment, there are few successful challenges to the proportionality of
sentences.” Johnson, 451 F.3d at 1242–43 (citing U.S. v. Raad, 406 F.3d 1322, 1323
(11th Cir. 2005)). The Eleventh Circuit found that because “the district court
sentenced Johnson within the statutory limits, he has not made a threshold showing
of disproportionality with respect to his sentence.” Johnson, 451 F.3d at 1243.
While “Johnson’s [140-year] sentence is severe” it is “not more severe than the life
long [sic] psychological injury he inflicted upon his three young victims. His
sentence is neither excessive nor cruel and unusual.” Johnson, 451 F.3d at 1243–
44.
The Court sentenced Mr. Nelson within the guideline range, just like Mr.
Johnson. The Court sentenced Mr. Nelson to a term of 360 months each as to Counts
1, 2, 3, and 4, to run consecutively, and 240 months each as to Counts 5, 6, and 7, to
run concurrently to each other but consecutively to Counts 1-4. (Crim. Doc. 19, p.
2). This results in a total sentence of 1,680 months of incarceration. (Crim. Doc.
26
19, p. 2). The Court found “that the guidelines offense level is 43, the criminal
history category is one, and the advisory guideline imprisonment term is life.”
(Crim. Doc. 33, p. 6). Therefore, Mr. Nelson’s 1,680-month sentence fell within the
guideline range. Mr. Nelson’s sentence, while severe, meets the harm that he caused
to his victims and to the community at large. Therefore, Mr. Tewalt was not
ineffective for failing to challenge Mr. Nelson’s sentence on the basis of the Eighth
Amendment.
Likewise, at the time of Mr. Nelson’s sentencing, the Eleventh Circuit already
had addressed and rejected the Commerce Clause challenge that Mr. Nelson argues
his attorney should have made. In United States v. Maxwell, the Eleventh Circuit
discussed whether, considering the Supreme Court’s decision in Gonzales v. Raich,
545 U.S. 1 (2005), Congress can regulate child pornography under its Commerce
Clause powers. After Raich, “where Congress comprehensively regulates economic
activity, it may constitutionally regulate intrastate activity, whether economic or not,
so long as the inability to do so would undermine Congress’s ability to implement
effectively the overlying economic regulatory scheme,” and “courts have only a
limited role in second-guessing whether a ‘class of [non-commercial] activity …
undercut[s]’ Congress’s unquestioned authority to regulate the broader interstate
market.” United States v. Maxwell, 446 F.3d 1210, 1215 (11th Cir. 2006) (quoting
Raich, 545 U.S. at 18).
27
The Eleventh Circuit explained that statutes criminalizing child pornography
attempt “to eliminate the entire market for child pornography, which, as the
[Supreme] Court noted in Raich, is just as valid an exercise of the Commerce Clause
authority as price and volume controls of an otherwise legal market.” Maxwell, 446
F.3d at 1217. “[P]ornography begets pornography, regardless of its origin,” and “[i]t
is well within Congress’s authority to regulate directly the commercial activities
constituting the interstate market for child pornography, and ‘[p]rohibiting the
intrastate possession … of an article of commerce is a rational … means of
regulating commerce in that product.’” Maxwell, 446 F.3d at 1218 (quoting Raich,
545 U.S. at 26). 6 Ultimately, the Eleventh Circuit concluded “that it is within
Congress’s authority to regulate all intrastate possession of child pornography, not
just that which has traveled in interstate commerce or has been produced using
materials that have traveled in interstate commerce.” Maxwell, 446 F.3d at 1218
(emphasis in original).
6
In determining the need for federal laws proscribing child pornography, the Senate Judiciary
Committee “found that pornography was a highly organized, multi-million dollar industry that
operated on a nationwide scale.” Danielle Wild, Note, You’re Reckless and You Should Know It:
Why the “Making Available” Theory Distorts the Mental Culpability Required Under 18 U.S.C. §
2252(A)(2), 65 SYRACUSE L. REV. 191, 201 (2014) (citing S. Rep. No. 95-438, at 5 (1977),
reprinted in 1978 U.S.C.C.A.N. 40, 42).
28
Because the Eleventh Circuit affirmed Congress’s Commerce Clause
authority to regulate child pornography before Mr. Nelson’s sentencing, Mr.
Nelson’s attorney was not ineffective for failing to raise a Commerce Clause
challenge.
Still, Mr. Nelson contends that because states have statutes criminalizing
creation, possession, and distribution of child pornography, the federal child
pornography criminal statutes violate the Tenth Amendment to the United States
Constitution. On this point, the Eleventh Circuit has not spoken, but many other
federal courts have. For example, in United States v. Laursen, the United States
Court of Appeals for the Ninth Circuit considered whether federal child pornography
statutes usurp states’ power under the Tenth Amendment.
Because child
pornography statutes “include an interstate nexus” and are not like “a garden variety
assault that is ordinarily prosecuted under state law,” the Ninth Circuit rejected the
defendant’s Tenth Amendment challenge. United States v. Laursen, 847 F.3d 1026,
1035 (9th Cir. 2017); see also U.S. v. Flynn, No. CR. 10-40012, 2010 WL 1459476,
at *4 (D.S.D. Mar. 19, 2010) (“The Eighth Circuit has repeatedly recognized the
federal child pornography statutes as a valid exercise of Congressional authority
under the Commerce Clause. It is therefore beyond doubt that § 2252 does not
violate the Tenth Amendment.”) (internal citations omitted); Phillips v. United
States, 2014 WL 3965050, at *7 (D. Del. Aug. 12, 2014) (concluding in a § 2255
29
habeas petition that defendant’s attorney did not provide ineffective assistance of
counsel by failing to raise “meritless argument” that federal child pornography
statutes violate the Tenth Amendment); U.S. v. Mortenson, No. CR 06-39-GF-SEH,
2013 WL 709091, at *3 (D. Mont. Feb. 26, 2013) (same).
Because the Eleventh Circuit has held that federal child pornography statutes
are a valid exercise of Congress’s Commerce Clause power, the statutes do not
violate the Tenth Amendment. Therefore, Mr. Tewalt’s decision not to argue the
statutes’ invalidity under the Tenth Amendment does not constitute ineffective
assistance.
Mr. Nelson’s Failure to Receive a Copy of his PSR
Mr. Nelson complains that Mr. Tewalt “failed to ensure” that he (Mr. Nelson)
saw a copy of his PSR before his sentencing hearing. (Doc. 1, p. 19). Because Mr.
Nelson was in custody before his sentencing hearing, Mr. Tewalt could not give Mr.
Nelson a copy of his PSR. The Bureau of Prisons prohibits inmates from possessing
PSRs “to protect inmates from being coerced by other inmates to produce their PSRs
. . . for illicit purposes. Inmates will be permitted to review their PSRs . . . but cannot
obtain or possess photocopies.” U.S. DEPARTMENT OF JUSTICE, FEDERAL BUREAU
OF
PRISONS PROGRAM STATEMENT 1351.05, RELEASE
OF
INFORMATION,
https://www.bop.gov/policy/progstat/1351_005_CN-1.pdf (last visited Oct. 15,
2020). Under Rule 32 of the Federal Rules of Criminal Procedure, Mr. Tewalt was
30
obligated to review the PSR with Mr. Nelson, but he did not have to give Mr. Nelson
a copy of the PSR. U.S. v. Duran, 620 Fed. Appx. 687, 693 (11th Cir. 2013) (“In
the absence of some indication to the contrary, a sentencing judge is permitted to
rely on an attorney’s submission that he has gone over the PSR with his client.”). 7
During Mr. Nelson’s sentencing hearing, the Court asked him if he had had
the opportunity to discuss the PSR with his attorney, and Mr. Nelson said he had.
(Crim. Doc. 33, p. 3). Mr. Tewalt told the Court that he and Mr. Nelson had had 35
days in which to review the PSR, and Mr. Tewalt filed written objections to the PSR.
(Crim. Doc. 33, p. 3; Crim. Doc. 13). In his affidavit concerning Mr. Nelson’s §
2255 motion, Mr. Tewalt stated that he met with Mr. Nelson and discussed the
guideline calculation in the PSR. (Doc. 12-1, pp. 5, 7).
Though the better practice may have been to allow Mr. Nelson to review his
PSR in the presence of counsel, on the record before it, the Court cannot conclude
that Mr. Tewalt’s decision not to allow Mr. Nelson to read the complete report was
7
In United States v. Melvin, the United States Court of Appeals for the Seventh Circuit concluded
that Federal Rule of Criminal Procedure 32(e)(2) requires defendants to receive a copy of their
presentence report. United States v. Melvin, 948 F.3d 848, 852 (7th Cir. 2020). “Under its plain
meaning, [Federal Rule of Criminal Procedure 32(e)(2)] cannot be satisfied by giving the PSR
only to the defendant’s and government’s attorneys; the probation office also must give also [sic]
the PSR to the defendant.” Melvin, 948 F.3d at 853.
Because of the risks associated with a defendant possessing his PSR in prison, the Seventh Circuit
held that “district courts have discretion to determine where and for how long the defendant may
possess the PSR, taking into consideration the specific safety concerns in each case.” Melvin, 948
F.3d at 853.
31
deficient representation because there may have been a legitimate, strategic reason
to simply discuss the contends of the PSR with Mr. Nelson. Still, assuming for the
purposes of this opinion that Mr. Tewalt should have allowed Mr. Nelson to read the
PSR before his sentencing hearing, Mr. Nelson is not entitled to relief because he
has not demonstrated that he would have received a different sentence had he read
his PSR. Again, the Court sentenced Mr. Nelson within the guideline range, and the
Court considered and overruled Mr. Nelson’s objection to his PSR. (Crim. Doc. 33,
pp. 3–6). Because Mr. Nelson has not satisfied the prejudice prong of the Strickland
test, he is not entitled to relief based on his attorney’s failure to give him a complete
copy of his PSR to read.
Attorney Conflict
Finally, Mr. Nelson argues that Mr. Tewalt was ineffective because federal
public defenders are “overworked, have heavy caseloads, and cannot properly
investigate every case, therefore cannot provide every defendant with an adequate
defense,” (Doc. 1, p. 20), and because attorneys in the United States Attorney’s
Office and the Federal Public Defender’s Office “deal in quid pro quo on a regular
basis,” (Doc. 15, p. 75). So, “[b]y not rigorously defending his client, counsel builds
up ‘brownie points’ and ‘political capital’ . . . that may be called in or otherwise put
to use when a more favorable, defendable, or sympathetic client comes along.”
(Doc. 15, p. 75). No one will argue with the general proposition that attorneys in the
32
Federal Public Defender’s Office are extremely busy and that they regularly work
opposite attorneys from the United States Attorney’s Office, but Mr. Nelson has not
identified a specific conflict or resulting error that he attributes to Mr. Tewalt’s
workload or his working relationship with attorneys who regularly appear against
him in criminal cases. 8
A defendant claiming ineffective assistance due to a conflict of interest must
identify an “actual conflict”—that is, a “conflict [that] adversely affected his
counsel’s performance.” Mickens v. Taylor, 535 U.S. 162, 174 (2002); see also
Mickens, 535 U.S. at 171 (explaining that an “actual conflict” is “a conflict that
affected counsel’s performance—as opposed to a mere theoretical division of
loyalties”). For public defenders, an actual conflict of interest generally occurs when
an attorney “discover[s] that a victim or witness is a former or current client of the
same public defender office representing the accused.” Jeff Brown, Disqualification
of the Public Defender: Toward A New Protocol for Resolving Conflicts of Interest,
31 U.S.F. L. REV. 1, 4 (1996); U.S. v. Sablan, 176 F. Supp. 2d 1086, 1090 (D. Colo.
Though attorneys on opposite sides of a case are adversaries and have an ethical obligation to
advocate for their clients’ interests (which often conflict), clients generally benefit from a collegial
relationship between or among opposing counsel. A good working relationship fosters
compromise when compromise is in the parties’ best interests. AUSAs and public defenders must
communicate to negotiate plea agreements. See U.S. v. Goldberg, 937 F. Supp. 1121, 1138–39
(M.D. Pa. 1996) (stating that attorneys in the Federal Public Defender’s Office “are intimately
familiar with criminal practice in this court and deal with the various offices (chambers, Clerk of
Court, Probation & Parole, U.S. Attorney, etc.) on a regular basis.”).
8
33
2001) (federal public defender had actual conflict because other attorneys in the
Office of the Federal Public Defender represented a potential witness).
Mr. Nelson has not identified an actual conflict of interest in his case.
Therefore, the Court denies his ineffective assistance of counsel claim on this
ground.
IV.
Accordingly, the Court denies Mr. Nelson’s ineffective assistance claims
based on grounds two through six. The Court will set an evidentiary hearing to
evaluate Mr. Nelson’s ineffective assistance of counsel claim relating to his Miranda
waiver.
DONE and ORDERED this April 22, 2021.
_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
34
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