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United States v. Merrell

United States District Court, D. Minnesota

January 3, 2017

United States of America, Plaintiff,
v.
Roxanne Merrell, Defendant.

          Katharine T. Buzicky, United States Attorney counsel for plaintiff.

          Roxanne Merrell, defendant pro se.

          ORDER

          David S. Doty, Judge United States District Court

         This 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.

         BACKGROUND

         On 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.[1] 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.

         DISCUSSION

         Section 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.

         I. Ineffective Assistance of Counsel

         To 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 694.

         A. Witnesses

         Merrell 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.[2]

         B. Sentencing

         Merrell 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 ...


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