Hollingshead v. United States of America

Filing 8

MEMORANDUM AND ORDER re: 1 ORDERED that movant Michael G. Hollingshead's Motion to Vacate, Set Aside, or Correct Judgment pursuant to 28 U.S.C. 2255, (ECF No. 1), is DENIED and DISMISSED WITH PREJUDICE. A separate Order of Dismissal will accomp any this Memorandum and Order. FURTHER ORDERED that, because Movant Michael G. Hollingshead cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability.. Signed by District Judge Jean C. Hamilton on 4/2/14. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL G. HOLLINGSHEAD,
Movant,
v.

UNITED STATES OF AMERICA,
Respondent.

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No. 4:13CV315 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Movant Michael G. Hollingshead’s Motion to Vacate,
Set Aside, or Correct Sentence (“Motion to Vacate”), (ECF No. 1), filed on February 19, 2013
pursuant to 28 U.S.C. § 2255. The matter has been fully briefed and is ready for disposition.
On July 14, 2011, a grand jury indicted Hollingshead on three separate counts of knowing
possession of child pornography produced using materials that traveled in interstate and foreign
commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B). (4:11CR301-JCH, ECF No. 1).
Hollingshead pleaded guilty to all three counts on November 28, 2011 and received a 51-month
sentence on April 4, 2012. (4:11CR301-JCH, ECF Nos. 38, 39, 55). He then filed a notice of
appeal on April 17, 2012. (4:11CR301-JCH, ECF No. 59). On May 31, 2012, the Eighth Circuit
dismissed, on the Government’s motion, Hollingshead’s appeal because he had waived his right
to appeal as part of the Plea Agreement. (Government Response, ECF No. 3, at 3; 4:11CR301JCH, ECF No. 69). Hollingshead filed this Motion to Vacate on February 19, 2013. (ECF No. 1).
Briefing was completed on June 17, 2013. (ECF Nos. 3, 5).
Hollingshead’s Motion to Vacate contains three grounds for relief: 1) ineffective
assistance of counsel for failing to argue for a lower sentence based on 18 U.S.C. 3553(f) and for

failing to make Hollingshead aware that such an argument is possible; 2) ineffective assistance of
counsel for failure to alert Hollingshead of his right to “object to statements/purported facts
during sentencing[;]” and 3) ineffective assistance of counsel and prosecutorial misconduct
based on his own attorney’s and the Government’s failure to present certain exculpatory
evidence. (Motion, ECF No. 1).1
STANDARDS GOVERNING § 2255 MOTIONS
Under § 2255, a federal prisoner may seek relief on the ground that “the sentence was
imposed in violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255. The Court
must hold an evidentiary hearing to consider claims in 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.’”
Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (quoting 28 U.S.C. § 2255(b)). Thus,
a movant is entitled to an evidentiary hearing “‘when the facts alleged, if true, would entitle him
to relief.’”

Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996) (quoting Wade v.

Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)). The Court may dismiss a claim “‘without an
evidentiary hearing if the claim is inadequate on its face or if the record affirmatively refutes the
factual assertions upon which it is based.’” Shaw, 24 F.3d at 1043 (citation omitted).

There is also a fourth claim implied in Hollingshead’s reply—that his counsel was ineffective for falsely
promising Hollingshead would receive only probation if he were to plead guilty. Hollingshead raised that
claim for the first time in his reply, and it is therefore not properly before the Court. Smith v. United
States, 256 Fed. App’x 850, 852 (8th Cir. 2007) (citing Hohn v. United States, 193 F.3d 921, 923-24 (8th
Cir. 1999). Even if it were properly before the Court, the claim is without merit because it is contradicted
by the record. (Plea Transcript, 4:11CR301-JCH ECF No. 75, 9:4-12).
1

INEFFECTIVE ASSISTANCE OF COUNSEL
In order to prevail on an ineffective assistance of counsel claim, a claimant must show
that his attorney’s performance was “deficient,” and “that the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “The benchmark for judging
any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial [or other proceeding at which the defendant
was entitled to effective counsel] cannot be relied on as having produced a just result.” Id. at 686.
Demonstration of the performance prong is not an easy task because counsel is “strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id. at 690. To overcome this presumption, Petitioner
must prove that, “in light of all the circumstances, the identified acts or omissions were outside
the wide range of professionally competent assistance.” Id.
And even if a claimant satisfies the performance component of the analysis, he is not
entitled to relief unless he can prove sufficient prejudice. Id. at 691. To demonstrate sufficient
prejudice, the claimant must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A
reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id.
DISCUSSION
I. Failure to Raise Argument Under 18 U.S.C. § 3553(f)
Hollingshead’s first ineffective assistance claim is unclear. He claims that his attorney
was ineffective for failing to make an argument under 18 U.S.C. § 3553(f), which allows
sentencing courts in certain situations to impose sentences below the statutory minimum for
violations of the Controlled Substances Act and the Controlled Substances Import and Export

Act. Hollingshead was not convicted under either act. As the Government points out, “[i]t is
possible that Hollingshead has confused 18 U.S.C. § 3553(f) with 18 U.S.C. § 3553(a).”
(Government Response at 6). If Hollingshead meant § 3553(a), then his argument would be that
his counsel was ineffective for failing to argue, based on the § 3553(a) sentencing factors, for a
downward variance from the U.S. Sentencing Guidelines (“Guidelines”) recommendation.
Given that Hollingshead did not contest the Government’s interpretation in his Reply, the
Court interprets Hollingshead’s claim to contend that his counsel was ineffective for failing to
argue for a downward variance under § 3553(a). This claim must fail because the parties agreed
in the Plea Agreement “that in exchange for the Government’s agreement to not pursue a fourlevel increase in the offense level due to the fact that the material possessed by defendant
portrayed sadistic and masochistic conduct, neither part shall request a sentence above or below
the U.S. Sentencing Guidelines range[.]” (Plea Agreement, 4:11CR301-JCH ECF No. 39, at 2).
This promise not to argue for a downward variance was binding on Hollingshead. U.S. v. His
Law, 85 F.3d 379 (8th Cir. 1996) (per curiam). Hollingshead’s attorney could not be considered
constitutionally inadequate for failing to make an argument he agreed not to make.
II. Failure to Object to Facts at Sentencing
Hollingshead’s second claim is that his attorney was ineffective for failing to object to
certain facts at the sentencing hearing and for failing to make Hollingshead aware that such
objections were possible. (Motion at 5). Hollingshead sets out only a conclusory version of the
claim in his motion, but he clarified the claim in his Reply by providing some detail.
(Hollingshead Reply, ECF No. 5, at 3). The sentencing court imposed a special condition of
supervised release under which Hollingshead must abstain from the use of alcohol. (Sentencing
Transcript, 4:11CR301-JCH ECF No. 65, 12:12-15). The court based the imposition of the

special condition on Hollingshead’s history of alcohol abuse, “including an arrest for driving
while intoxicated.” Id. Hollingshead now contends that his counsel was ineffective because he
failed to object to the abstinence special condition based on the fact that Hollingshead was never
found guilty of driving while intoxicated. (Hollingshead Reply at 3).
But the arrest was not the sentencing court’s only basis for imposing the special
condition. According to the Presentence Investigation Report (“PSR”), Hollingshead “reported
that at the time the arrest warrant was issued in the instant offense, he was drinking a little more
than six beers a day until he ‘built up a tolerance to it.’” (Final PSR, 4:11CR301-JCH ECF No.
43, ¶ 48). Hollingshead also indicated that at the time of the report, he was drinking up to a six
pack of beer a day, four to five days a week. 2 Id. Based on those findings, the sentencing court’s
conclusion that Hollingshead had a history of alcohol abuse was reasonable, and the special
condition to abstain from alcohol was “reasonably related to . . . the history and characteristics of
the defendant[.]” United States v. Thompson, 653 F.3d 688, 691 (8th Cir. 2011) (internal
quotation marks omitted). Thus, any failure to point out that Hollingshead was not convicted of
driving while intoxicated—a fact already known by the sentencing court from its review of the
PSR—was not constitutionally prejudicial or constitutionally deficient.
III. Failure to Present Exculpatory Evidence
Hollingshead’s final claim contains two subparts. The first is that his attorney was
ineffective for failing to present certain exculpatory evidence. (Motion at 7). The second is that
the Government’s attorneys engaged in prosecutorial misconduct for failure to present the same
evidence. Id. Hollingshead claims that the nature of this evidence was such that it “could have
had enough mitigating weight to have the charges dropped” or would at least have warranted a
Hollingshead did not object to the “Substance Abuse” portion of the PSR even though he was made
aware of his ability to do so at the plea hearing. (Plea Transcript, 4:11CR301-JCH ECF No. 75, 18:1719:1).
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sentence below the Guidelines. Id.; (Hollingshead Reply at 2). While Hollingshead again did not
provide specific examples of exculpatory evidence in his motion, he supplemented the claim in
his Reply with more detail.
A brief examination of what Hollingshead believes to be exculpatory evidence
demonstrates that both his ineffective assistance claim and prosecutorial misconduct claim must
fail. The facts Hollingshead believed to be exculpatory were:
the illicit material being such an insignificant amount compared to the nonillicit material; the Limewire program having been removed from my
computer of my own accord before the search warrant was executed; my
own attempts to remove the illicit material (in progress when the search
warrant was executed); and the abject lack of conduct otherwise detrimental
to minors all connotating [sic] that the possession of the illicit material was
an anomaly, not a harbinger of future conduct, and an unfortunate
coincidence that should be ignored.
(Hollingshead Reply at 1-2).
Police officers found on Hollingshead’s computer and in his mother’s home “216 video
files depicting minors engaged in sexual activity with adults and other minors[.]” (Plea
Agreement at 4). Defendant admitted to possession of eight of those video files. Id. at 4-6. Even
if this could be considered an insignificant amount by some standard, it was still child
pornography, and some of it was contained on discs that had travelled in interstate commerce. Id.
at 4-5. Nor is there any reason to believe that the sentencing court would have reduced its
sentence had Hollingshead presented the cited evidence at the sentencing hearing. In short, the
excluded facts on which Hollingshead bases his third claim could not be considered exculpatory.
Therefore, neither his attorney nor the Government committed constitutional error by failing to
bring it forward.

Accordingly,
IT IS HEREBY ORDERED that movant Michael G. Hollingshead’s Motion to Vacate,
Set Aside, or Correct Judgment pursuant to 28 U.S.C.§ 2255, (ECF No. 1), is DENIED and
DISMISSED WITH PREJUDICE. A separate Order of Dismissal will accompany this
Memorandum and Order.
IT IS FURTHER ORDERED that, because Movant Michael G. Hollingshead cannot
make a substantial showing of the denial of a constitutional right, the Court will not issue a
certificate of appealability. See 28 U.S.C. § 2253(c).

Dated this 2nd day of April, 2014.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE