United States District Court, D. Minnesota
Katharine T. Buzicky, United States Attorney counsel for
Roxanne Merrell, defendant pro se.
S. Doty, Judge United States District Court
matter is before the court upon the pro se motion by
defendant Roxanne Merrell to vacate, set aside, or correct
her sentence under 28 U.S.C. § 2255. Based upon a review
of the file, record, and proceedings herein, and for the
following reasons, the court denies the motion and denies a
certificate of appealability.
March 12, 2015, a jury found Merrell guilty of two counts of
production of child pornography, in violation of 18 U.S.C.
§§ 2251(a) and (e). Although Merrell faced a
sentence of 360 months' imprisonment under the
Guidelines, the court applied a downward variance and
sentenced her to 240 months' imprisonment on each count
to run concurrently. Merrell unsuccessfully appealed her
conviction and sentence to the Eighth Circuit Court of
Appeals. See United States v. Merrell, 842 F.3d 577
(8th Cir. 2016). Merrell now moves for relief under §
2255, arguing that her counsel was ineffective during trial
and at sentencing and that the court erred in admitting
certain evidence in the trial.
2255 provides a federal inmate with a limited opportunity to
challenge the constitutionality, legality, or jurisdictional
basis of a sentence imposed by the court. This collateral
relief is an extraordinary remedy, reserved for violations of
constitutional rights that could not have been raised on
direct appeal. United States v. Apfel, 97 F.3d 1074,
1076 (8th Cir. 1996). When considering a § 2255 motion,
a court may hold an evidentiary hearing. See 28
U.S.C. § 2255(b). A hearing is not required, however,
when “(1) the petitioner's allegations, accepted as
true, would not entitle the petitioner to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact.”
Sanders v. United States, 341 F.3d 720, 722 (8th
Cir. 2003) (citation and internal quotation marks omitted).
Here, no hearing is required because the stated grounds for
relief are facially meritless.
Ineffective Assistance of Counsel
establish a claim of ineffective assistance of counsel,
Merrell must meet both prongs of the test set forth in
Strickland v. Washington, 466 U.S. 668 (1984).
First, Merrell must show that her counsel's performance
was so deficient that it fell below the level of
representation guaranteed by the Sixth Amendment.
Id. at 687. Second, she must establish prejudice by
showing “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceedings would have been different.” Id. at
first argues that her counsel was ineffective in failing to
call certain witnesses on her behalf at trial who could
attest to her character and mental state. She also argues
that her counsel failed to interview witnesses with
exculpatory information before trial. As to the latter
argument, Merrell's claim fails because she provides no
detail as to the nature of the alleged exculpatory
information. As to the former, it is well established that
the “decision not to call witnesses is a
‘virtually unchallengeable' decision of trial
strategy.” United States v. Staples, 410 F.3d
484, 488 (8th Cir. 2005) (quoting United States v.
Davidson, 122 F.3d 531, 538 (8th Cir. 1997)). Merrell
has failed to establish that her counsel's decision not
to call certain witnesses was either unreasonable or outcome
determinative. There was ample evidence to support the
conviction, including Merrell's confession, which would
not have been undermined by testimony from witnesses
attesting to her character or mental state.
next argues that her counsel improperly advised her that she
would only receive a fifteen-year sentence if she went to
trial and that her counsel did not adequately prepare for
sentencing. She also argues that her counsel rejected an
offer from the government to plead guilty to transportation
of child ...