United States District Court, D. Minnesota
M. Provinzino, United States Attorney's Office, for
Conrad Schmitz, Pro Se.
MEMORANDUM OPINION AND ORDER
RICHARD NELSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Joel Conrad
Schmitz's Motion to Vacate under 28 U.S.C. § 2255
[Doc. No. 33]. 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.
approximately 2014 and 2015, Schmitz was charged in Meeker
County, Minnesota, with state court criminal sexual conduct
offenses. (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.)
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.
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.
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.
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
While § 2255 generally affords relief, it is only
available in limited circumstances.
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
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
§ 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].)
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)).
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
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.
Ineffective Assistance of Counsel
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.).
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.
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.
“Misled Into ...