Reed v. United States of America

Filing 17

ORDER denying 1 Petitioner's Motion to Vacate, Set Aside, or Correct Sentence by a person in federal custody purcuant to 28:2255. A Certificate of Appealability shall not issue. Signed by U.S. District Judge Lawrence L. Piersol on 8/25/14. (DJP)

FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

AUG 252014

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WILLIAM ROBERT JOSEPH REED,
CIV 12-4104
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Petitioner,
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vs.
ORDER
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UNITED STATES OF AMERICA,
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Respondent.
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Petitioner William Robert Joseph Reed has brought an action under 28 U.S.c. § 2255
concerning his conviction for the distribution and possession ofchild pornography. Defendant Reed's
direct appeal was denied by the Eighth Circuit Court ofAppeals in United States v. Reed, 641 F.3d
992 (8th Cir. 2011). Mr. Reed has timely brought this § 2255 action. Petitioner has seven grounds
for ineffective assistance of counsel at the trial and the appellate level.
There has been no showing of ineffective representation in the appeal to the Eighth Circuit.
No issue was identified that counsel on appeal failed to raise which should have been raised and which
could have altered the result of the appeal.
The claim of improper advice by the lawyer with regard to a plea versus going to trial is
contradicted by the Affidavits ofthe defense counsel indicating that Mr. Reed always wanted to go
to trial. Also, defense counsel avered that all plea proposals were presented to Mr. Reed and
explained to him and they were rejected by Mr. Reed.
The second ground is failing to introduce evidence proving others had access to and used
computer. The short answer is that there was testimony at trial that other users had access to
Petitioner's computer even though Petitioner never identified to his counsel a witness that would
testifY that he or she had personally accessed Petitioner's computer. There was no failure to introduce
evidence on this point as whatever evidence was available did get into the record.
There is a claim offailure to understand and clarifY the Motion in Limine which was sustained

by the District Court. Defense counsel appeared to understand the Court's ruling and in fact tried to
skirt around that ruling and after objection by the Government was admonished by the Court not to
do so.
The Defendant agreed to not have the forensic expert who was consulted testifY for the
defense. In this instance as well as any other instance, where the Affidavits of defense counsel
contradict the claims of Petitioner, the Court in each instance credits and accepts the statements of
defense counseL
It is true as alleged by Petitioner that defense counsel mentioned Petitioner's sexuality and had

the Petitioner testifY about his sexuality as a matter of trial tactics. This is a trial tactic the Court
concludes that the Petitioner agreed to and in addition was not an improper or unwise trial tactic.
None of the above claims either individually or cumulatively result in defense counsel
performance that was constitutionally deficient. The Court finds no deficiency in the performance
ofdefense counsel and as a result, the conduct ofdefense counsel could not and did not prejudice the
defense ofPetitioner in the trial and appeal ofthis case. Strickland v. Washington, 466 U. S. 668, 687
(1984); see also Close v. United States, 679 F.3d 714 (8th Cir. 2012). Accordingly,

IT IS ORDERED:
1.

That Petitioner's Motion to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody Pursuant to 28 U.S.C. § 2255, Doc. I, is DENIED
with prejudice.

2.

That a Certificate of Appealability shall not issue.
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Dated this
day of August, 2014.

2:2

rence L. Pierso I
nited States District Judge
ATTEST:

JOSEPH~S,

BY:

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DEPUT