Swindle v. United States of America

Filing 4

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 11/15/2017. (PSM)

FILED
2017 Nov-15 PM 04:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
ADAM SHANE SWINDLE,
Petitioner,
vs.
UNITED STATES OF AMERICA
Respondent.

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7:17-cv-8017-LSC
(7:15-cr-247-LSC-SGC)

MEMORANDUM OF OPINION
Petitioner Adam Shane Swindle (“Swindle”) has filed with the Clerk of this
Court a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence. (Doc. 1.) The United States opposes the motion. (Doc. 3.) For the
following reasons, the motion is due to be denied.
I.

Background
On July 30, 2015, a federal grand jury in the Northern District of Alabama

indicted Swindle on three counts: distribution of child pornography in violation of
18 U.S.C. § 2252A(a)(2) (Count 1); receipt of child pornography in violation of 18
U.S.C. § 2252A(a)(2) (Count 2); and possession of child pornography in violation
of 18 U.S.C. § 2252A(a)(5)(B) & (b)(2) (Count 3).

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On October 20, 2015, Swindle pled guilty to Counts 2 and 3 pursuant to a
signed plea agreement, and the Government agreed to dismiss Count 1. As stated in
the factual basis of the plea agreement and stipulated to by Swindle, the images of
child pornography possessed and received by Swindle are of real children, some
under the age of 12, engaged in sexually explicit conduct, including but not limited
to actual or simulated sexual intercourse, actual or simulated masturbation, and the
lascivious exhibition of the genitals or pubic area of the person. There was an
appeal waiver in the plea agreement, but it listed as exceptions claims of ineffective
assistance of counsel, among other things.
This Court sentenced Swindle on March 1, 2016, to 168 months’
imprisonment as to Counts 2 and 3, separately, to run concurrent with the other,
followed by a lifetime term of supervised release and a $200.00 felony assessment.
Count 1 was dismissed at sentencing pursuant to the plea agreement. Judgment was
entered on March 1, 2016.
Swindle appealed, but he later moved to voluntarily dismiss his appeal, and it
was dismissed by the Eleventh Circuit Court of Appeals on June 10, 2016. Swindle
filed the instant § 2255 motion on April 25, 2017.
II.

Discussion

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Section 2255 permits a federal prisoner to bring a collateral challenge by
moving the sentencing court to vacate, set aside, or correct the sentence. 28 U.S.C.
§ 2255(a). Once a petitioner files a § 2255 motion, “[u]nless the motion and the
files and records of the case conclusively show that the prisoner is entitled to no
relief, the court shall . . . grant a prompt hearing thereon, determine the issues and
make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b). A
petitioner is entitled to an evidentiary hearing if he “alleges facts that, if true,
would entitle him to relief.” Aron v. United States, 291 F.3d 708, 715 n.6 (11th Cir.
2002). “[A] petitioner need only allege—not prove—reasonably specific, nonconclusory facts that, if true, would entitle him to relief.” Id. at 715 n.6. However,
this Court need not hold a hearing if the allegations are “patently frivolous,”
“based upon unsupported generalizations,” or “affirmatively contradicted by the
record.” Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989); see, e.g.,
Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir. 2004) (“Because the . . .
affidavits submitted by Lynn amount to nothing more than mere conclusory
allegations, the district court was not required to hold an evidentiary hearing on the
issues and correctly denied Lynn’s § 2255 motion.”).
Swindle asserts two grounds in support of his request for relief: 1) counsel
was ineffective for failing to object and allowing Swindle to enter a plea of guilty to

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an insufficient factual basis; and 2) counsel was ineffective for allowing Swindle to
enter his plea of guilty unknowingly and involuntarily.
As an initial matter, Swindle waived certain rights when he entered into his
guilty plea, but he did not waive the right to raise a claim of ineffective assistance of
counsel on appeal or on collateral attack. Moreover, claims of ineffective assistance
of counsel are not required to be raised on direct appeal and may be raised for the
first time in a § 2255 motion. Massaro v. United States, 538 U.S. 500, 504 (2003).
The Sixth Amendment guarantees the right to effective assistance of counsel
in all criminal prosecutions. Yarborough v. Gentry, 540 U.S. 1, 4 (2003). The
standard applicable to claims of ineffective assistance of counsel in post-conviction
motions is well-established: relief will not be granted unless the petitioner can show
not only that counsel’s performance was deficient but also that such deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). More specifically, the movant must show that: (1) his counsel’s
representation fell below an objective standard of reasonableness; and (2) there is a
reasonable probability that, but for his counsel’s unprofessional errors, the result of
the proceeding would have been different. Id. at 687-88. The court need not
“address both components of the inquiry if the defendant makes an insufficient
showing on one.” Id. at 697. In determining whether an attorney’s performance fell

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below the objective standard of reasonableness, the court is highly deferential to
counsel’s decisions and must keep in mind that “a fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged performance,
and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689.
The court must also indulge a strong presumption that counsel’s performance falls
within the “wide range of reasonable professional assistance.” Id. When seeking to
overcome this presumption, a movant cannot rely on bare accusations and
complaints, but instead “must identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional judgment.” Id. at 690.
Strickland’s two part standard is applicable to ineffective-assistance claims
arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57 (1985). With
regard to the prejudice prong in the context of a guilty plea, the defendant must
show “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.” Id. at 59.
A.

The factual basis for Swindle’s guilty plea was sufficient, and
therefore defense counsel was not ineffective for failing to object

Swindle essentially argues that because he never admitted to having violated
the particular federal statutes that criminalize the conduct to which he pled guilty,
the factual basis of his guilty plea was insufficient, and, by extension, his counsel
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was ineffective for failing to object to it. He also appears to contend that because he
was not questioned in detail about his crimes during his plea hearing, there was an
insufficient factual basis for his plea. (See Doc. 1 at 25 (“The Court never asked
Petitioner any questions regarding his description of the crimes, nor was the
prosecution or any law enforcement officer called upon to testify as to what
Petitioner did to establish that all of the essential elements were admitted to by
Petitioner.”).
As an initial matter, Swindle’s claim that the factual basis for his plea was
insufficient is likely barred by the appeal waiver in his plea agreement and thus not
cognizable by this Court on collateral review. Swindle’s efforts to couch the claim
as one of ineffective assistance of counsel in order to avoid the appeal waiver do not
go unnoticed by this Court. Nonetheless, the Court will address the claim.
Before entering judgment on a guilty plea, the court must determine that
there is a factual basis for the plea. Fed. R. Crim. P. 11(b)(3). “The standard for
evaluating challenges to the factual basis for a guilty plea is whether the trial court
was presented with evidence from which it could reasonably find that the defendant
was guilty.” United States v. Frye, 402 F.3d 1123, 1128 (11th Cir. 2005) (quotations
omitted). “There is a strong presumption that the statements made during the
[plea] colloquy are true,” United States v. Medlock, 12 F.3d 185, 187 (11th Cir.

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1994), and “when a defendant makes statements under oath at a plea colloquy, he
bears a heavy burden to show his statements were false,” United States v. Rogers,
848 F.2d 166, 168 (11th Cir. 1988).
In this case, the factual basis of Swindle’s plea agreement plainly proves how
Swindle received and possessed images of child pornography. The factual basis
proves that a computer forensic examination of Swindle’s laptop computer
revealed 75 videos of child pornography and that the images of child pornography
on Swindle’s computer were possessed on September 17, 2014, and received
between roughly March 23, 2014, and April 25, 2014, by Swindle. Swindle initialed
and signed just below the factual basis of the plea agreement acknowledging that
the factual basis establishes that the images of child pornography possessed and
received by Swindle are of real children engaged in sexually explicit conduct,
including but not limited to, actual or simulated sexual intercourse, actual or
simulated masturbation, and the lascivious exhibition of the genitals or pubic area
of a person. Swindle also initialed and signed acknowledging that the factual basis
clearly states how Swindle used the internet to receive and possess images of child
pornography that were produced in other states and traveled in interstate
commerce, via the internet. The factual basis provides sufficient facts for every
element of the crimes to which Swindle pled guilty.

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Further, the Court specifically addressed the factual basis of the plea
agreement at Swindle’s plea hearing, and asked Swindle, “When you signed it
there on page five, were you stipulating and agreeing that the factual basis that
precedes your signature is true and correct and I should rely upon it?” (Doc. 38 at
17.) Swindle responded, “Yes, it is correct.” (Id.)
It follows that defense counsel was not ineffective for failing to object to the
factual basis and allowing Swindle to plead guilty pursuant to the plea agreement.
See, e.g. Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (counsel is not
ineffective for failing to raise a non-meritorious objection).
In sum, this claim is due to be denied without an evidentiary hearing because
it is “affirmatively contradicted by the record.” Holmes, 876 F.2d at 1553.
B.

Swindle entered a knowing and voluntary plea of guilty, and
therefore defense counsel was not ineffective

Swindle also claims that his “understanding when he signed the stipulation
was that the alleged facts contained in the Factual Basis could only be used by the
Court to calculate his sentence and not to determine whether or not he was guilty
of committing each alleged violation.” (Doc. 1 at 25-26.) He thus alleges that his
plea was not knowing and voluntary. Again, Swindle’s claim, which would likely be
barred by the appeal waiver in his plea agreement, is couched in his ineffective

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assistance of counsel claim, i.e., that counsel should not have let him plead. All of
his assertions are refuted by the record.
The plea hearing for Swindle fully satisfied the requirements of Federal Rule
of Criminal Procedure 11. The Court placed Swindle under oath, addressed him
personally in open court, and sufficiently informed Swindle of the nature of the
charges against him and the consequences of a guilty plea. (See generally Doc. 38.)
The Court properly made sure Swindle had sufficient understanding to enter a
knowing and voluntary plea, and properly advised Swindle of all the rights he was
giving up by pleading guilty. Furthermore, the Court specifically inquired as to
whether Swindle was entering a voluntary guilty plea:
THE COURT: All right. I need to make sure this is your free and
voluntary act.
SWINDLE: It is.
THE COURT: You are not being forced to do this; you understand
everything. So I am going to make further explanation and ask you
some more questions. You’re charged—and it’s my understanding
from the plea agreement that you and the government have entered
into an agreement where you are going to plead guilty to count two
and count three of the indictment; is that correct?
SWINDLE: Yes, Your Honor.
(Doc. 38 at 9.) The Court properly confirmed again that Swindle was knowingly
and voluntarily pleading guilty because Swindle was, in fact, guilty:
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THE COURT: Has anybody threatened you, forced you, or coerced
you in any way to get you to plead guilty?
SWINDLE: No, Your Honor.
THE COURT: Are you wanting to plead guilty because you are
guilty?
SWINDLE: Yes.
…
THE COURT: Have you heard anything today that I have said or
otherwise that’s changed your mind and made you not want to plead
guilty?
SWINDLE: Oh, No, Your Honor.
THE COURT: Do you realize that even though you signed all these
documents you can plead not guilty and go to trial?
SWINDLE: Yes, Your Honor.
…
THE COURT: To the offense charged against you in Count II and III
of the Indictment, how do you plead?
SWINDLE: Guilty.
(Id. at 8-19.) Swindle also specifically acknowledged reading and signing the plea
agreement and discussing it with defense counsel. (Id. at 16.) Swindle cannot now

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cast doubt on his sworn testimony by offering conclusory allegations that he did not
understand what he was doing. See e.g., Medlock, 12 F.3d at 187.
Because Swindle’s claim that his plea was not knowing and voluntary is
refuted by the record, his counsel could not have been constitutionally ineffective
for failing to advise him not to plead guilty. In fact, defense counsel effectively and
strategically negotiated, as enumerated in the plea agreement, the dismissal of
Count One of the Indictment: Distribution of Child Pornography. Further, during
the change of plea hearing, Swindle testified under oath that he received adequate
time to consult with defense counsel concerning the charges and consideration of
possible defenses. (Doc. 38 at 3-4.) Swindle also testified under oath that he was
satisfied with defense counsel’s performance:
THE COURT: Let’s talk about your lawyer; he is sitting there with
you. How has he done as far as attorney goes?
SWINDLE: He has been great, Your Honor.
THE COURT: Do you have any complaints about his representation
of you?
SWINDLE: No, Your Honor.
THE COURT: Has he spent what you think to be a sufficient amount
of time helping you with your case?
SWINDLE: Yes, Your Honor.

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(Id. at 3-4.) The evidence was overwhelming, Swindle voluntarily chose to
plead guilty, and the record makes clear that defense counsel was competent in
allowing Swindle to make the reasonable and strategic choice to plead guilty. An
evidentiary hearing is not warranted on this claim because it is “affirmatively
contradicted by the record.” Holmes, 876 F.2d at 1553.
III.

Conclusion
For the foregoing reasons, Swindle’s § 2255 motion is due to be denied.

Additionally, pursuant to Rule 11 of the Rules Governing § 2255 Proceedings, the
Court has evaluated the claims within the petition for suitability for the issuance of
a certificate of appealability (“COA”). Rule 22(b) of the Federal Rules of
Appellate Procedure provides that when an appeal is taken by a petitioner, the
district judge who rendered the judgment “shall” either issue a COA or state the
reasons why such a certificate should not issue.

Pursuant to 28 U.S.C. §

2253(c)(2), a COA may issue only when the petitioner “has made a substantial
showing of the denial of a constitutional right.” This showing can be established by
demonstrating that “reasonable jurists could debate whether (or for that matter,
agree that) the petition should have been resolved in a different manner” or that
the issues were “adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 &

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n.4 (1983)). For procedural rulings, a COA will issue only if reasonable jurists could
debate whether the petition states a valid claim of the denial of a constitutional
right and whether the court’s procedural ruling was correct. Id. The Court finds
that reasonable jurists could not debate its resolution of the claims presented in this
habeas corpus petition. Accordingly, a COA will not issue from this Court.
The Court will enter a separate order in conformity with this Memorandum
of Opinion.
DONE and ORDERED on November 15, 2017.

_____________________________
L. Scott Coogler
United States District Judge
160704

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