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United States v. Schmitz

United States District Court, D. Minnesota

February 14, 2019


          Laura M. Provinzino, United States Attorney's Office, for Plaintiff.

          Joel Conrad Schmitz, Pro Se.




         This matter is before the Court on Defendant Joel Conrad Schmitz's Motion to Vacate under 28 U.S.C. § 2255 [Doc. No. 33].[1] In addition, Defendant has filed a Request for Subpoena [Doc. No. 48] as well as a Motion for Appointment of Counsel [Doc. No. 49]. Based on a review of the file, record and proceedings therein, and for the reasons set forth below, the Court denies Defendant's Motion to Vacate under § 2255, and denies as moot his Motion for Appointment of Counsel and his Request for a Subpoena.


         In approximately 2014 and 2015, Schmitz was charged in Meeker County, Minnesota, with state court criminal sexual conduct offenses.[2] (See Def.'s Mem., Ex. 2 (Dec. 16, 2015 Letter at 1-2 [Doc. No. 34-1]).) It appears that the parties were about to enter into a plea agreement in early 2016, but an agreement was not reached. (Id.)

         While the Meeker County charges were still pending, in April 2016, Schmitz received notice that he had been designated as a target of a federal investigation involving the production of child pornography. (Id., Ex. 4 (April 1, 2016 Letter at 1 [Doc. No. 34-1].) On October 14, 2016, Schmitz was charged in federal court by information on one count of production of child pornography in violation of 18 U.S.C. § 2251.

         On November 21, 2016, Schmitz entered a guilty plea in this Court pursuant to a plea agreement (the “Plea Agreement”). (See Nov. 21, 2016 Minute Entry [Doc. No. 6].) The Plea Agreement provided that Schmitz waived his right to appeal if the Court imposed a sentence of 180 months of imprisonment. (Plea Agmt. ¶ 13 [Doc. No. 10].) If, however, the Court imposed a longer sentence, Schmitz preserved his right to appeal. Also, Schmitz expressly waived the right to petition for relief under 28 U.S.C. § 2255. (Id.) That waiver, however, did not apply to a post-conviction collateral attack or a direct appeal based on a claim of ineffective assistance of counsel. (Id.)

         On June 30, 2017, the Court sentenced Schmitz to a term of 180 months in prison. (See June 30, 2017 Minute Entry [Doc. No. 30]; Sentencing J. [Doc. No. 31].) Schmitz did not file a direct appeal. On June 11, 2018, he timely filed the instant pro se motion to vacate under 28 U.S.C. § 2255.


         Under 28 U.S.C. § 2255(a),

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
While § 2255 generally affords relief, it is only available in limited circumstances.

         The Eighth Circuit has held that:

“[r]elief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” ... [A petitioner] may not raise a constitutional issue in the first instance on collateral review “without establishing both cause for the procedural default and actual prejudice resulting from the error.”

Walking Eagle v. United States, 742 F.3d 1079, 1081-82 (8th Cir. 2014) (quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)). The petitioner bears the burden of proof as to each ground for relief. Kress v. United States, 411 F.2d 16, 20 (8th Cir. 1969).

         In his § 2255 motion, Schmitz asserts the following claims: (1) that the Government selectively prosecuted him on the basis of his sexual orientation; (2) that the Government vindictively prosecuted him; and (3) that he received ineffective assistance of counsel. (See Def.'s Mem. at 1-2; 25-27 [Doc. No. 34].)

         As noted, Schmitz waived his right to collaterally attack his sentence except for claims of ineffective assistance of counsel. (Plea Agmt. ¶ 13.) Although plea agreement waivers are generally valid, they “will be strictly construed and any ambiguities in these agreements will be read against the Government and in favor of a defendant's appellate rights.” United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (citing United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001)).

         As a threshold matter, the Court agrees with the parties that Schmitz's guilty plea does not, in this case, bar him from asserting a claim of vindictive prosecution. As recently stated by the Eighth Circuit, prosecutorial vindictiveness that goes “to the very power of the State to bring the defendant into court” is an exception to the general rule that “[a] defendant's knowing and intelligent guilty plea forecloses independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” United States v. Muratella, 843 F.3d 780, 783 (8th Cir. 2016), cert. denied, 137 S.Ct. 1605 (2017) (quoting United States v. Vaughan, 13 F.3d 1186, 1187-88 (8th Cir. 1994)). As this claim goes directly to the power of the U.S. Attorney's Office to bring Schmitz into federal court, it falls within this exception, and the Court addresses it separately.

         While Schmitz also asserts a free-standing claim of selective prosecution, one of the bases for his ineffective assistance claim is that his counsel failed to address selective prosecution. (See Def.'s Mem. at 26.) Although Schmitz may have waived the right to assert an independent post-conviction claim of selective prosecution, the Court examines the underlying merits of this claim in its analysis of the ineffective assistance of counsel claims.

         A. Ineffective Assistance of Counsel

         Schmitz argues that he received ineffective assistance of counsel in four respects. (Id. at 25-26.) Schmitz contends that: (1) he was “misled into accepting a plea”; (2) his counsel failed to appropriately inform him of all of his appellate options; (3) his counsel failed to challenge the alleged selective prosecution; and (4) his counsel failed to challenge federal jurisdiction. (Id.).

         Within the context of § 2255, to establish ineffective assistance of counsel, a movant must satisfy the “heavy burden” of the two-part test of Strickland v. Washington, 466 U.S. 668 (1984). Apfel, 97 F.3d at 1076. Under Strickland, “a convicted defendant must prove both that his counsel's representation was deficient and that the deficient performance prejudiced the defendant's case.” Cheek v. United States, 858 F.2d 1330, 1336 (8th Cir. 1988). This deficient performance must be “so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. A defendant must show that counsel's errors were not the result of “reasonable professional judgment.” Id. at 690.

         Meeting the first prong of Strickland requires proof that counsel's performance “fell below an objective standard of reasonableness.” Id. at 688. The second element requires showing that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In a case involving a plea agreement, this requires a showing 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.” York v. Lockhart, 856 F.2d 61, 63 (8th Cir. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). A court's review of counsel's performance is highly deferential, and there is a strong presumption of adequate assistance. Strickland, 466 U.S. at 690.

         1. “Misled Into ...

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