Final Report and Recommendation — Robert Deutscher v. United States (N.D. Ga., Dkt. 203, August 3, 2023)

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Final Report and Recommendation, Document 203, filed August 3, 2023, in the 28 U.S.C. § 2255 proceeding of Robert Deutscher v. United States, No. 2:19-cr-00002, U.S. District Court for the Northern District of Georgia, Gainesville Division. Deutscher, the movant, challenges a 2021 guilty plea conviction and sentence for one count of conspiracy to advertise the sexual exploitation of children, in violation of 18 U.S.C. §§ 2251(d)(1)(A) and 2251(e). The report reviews the four grounds in the motion, finds that the collateral attack waiver in the plea agreement bars the substantive claims, treats Ground 4 as a request for an advisory opinion, and analyzes the ineffective-assistance claims. It recommends that the § 2255 motion be DENIED and that no certificate of appealability issue.

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Case 2:19-cr-00002-SCJ-JCF Document 203 Filed 08/03/23 Page 1 of 19




             IN THE UNITED STATES DISTRICT COURT
            FOR THE NORTHERN DISTRICT OF GEORGIA
                     GAINESVILLE DIVISION

 ROBERT DEUTSCHER,                   :      MOTION TO VACATE
 BOP Reg. No. 72462019,              :      28 U.S.C. § 2255
      Movant,                        :
                                     :      CIVIL ACTION NO.
       v.                            :      2:22-CV-0008-SCJ-JCF
                                     :
 UNITED STATES OF                    :      CRIMINAL ACTION NO.
 AMERICA,                            :      2:19-CR-0002-SCJ-JCF-2
     Respondent.

              FINAL REPORT AND RECOMMENDATION

       Movant Robert Deutscher, a federal prisoner currently confined at the

 Federal Correctional Institution in Milan, Michigan, has filed a pro se 28

 U.S.C. § 2255 motion to vacate challenging his 2021 guilty plea conviction

 and sentence in this Court for one count of conspiracy to advertise the sexual

 exploitation of children via interstate or foreign commerce, in violation of 18

 U.S.C. §§ 2251(d)(1)(A) and 2251(e). (Doc. 196.) The matter is before the

 Court on the § 2255 motion, the government’s response, and Movant’s reply.

 For the reasons stated below, IT IS RECOMMENDED that the § 2255

 motion be DENIED and that no certificate of appealability issue.
Case 2:19-cr-00002-SCJ-JCF Document 203 Filed 08/03/23 Page 2 of 19




 I.    PROCEDURAL HISTORY

       On August 20, 2019, a federal grand jury returned the operative second

 superseding indictment against movant and five other individuals, charging

 movant with one count of conspiring to advertise child pornography, in

 violation of 18 U.S.C. §§ 2251(d)(1)(A) and (e) (“Count 1”). (Doc. 89 at 1-

 2.) Ultimately, Movant pled guilty to Count 1 pursuant to a written plea

 agreement. (See docs. 163 at 163-1.)

       At the change-of-plea hearing, the government testified that it would

 have presented evidence at trial that Movant was a member of a chatgroup

 created in 2017 by codefendant Terence Dixon for the purpose of distributing,

 sharing, and receiving child pornography. (Doc. 198 at 23-24.) Movant

 posted child pornography to the chatgroup, including multiple images on

 December 18, 2017, one of which involved sex acts performed by an adult

 man on an infant. (Id. at 25.) Movant posted a dropbox, dropbox link, and

 image on December 26 and 27, 2017, in response to a request from

 codefendant Jordan Taff. (Id.) Movant posted additional child pornography

 in January 2018. (Id.) An undercover law enforcement officer embedded in

 the chatgroup opened the links and confirmed that they contained child


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 pornography. (Id.) Movant’s distribution of child pornography and his chats

 with Jordan Taff constituted a notice of advertisement to receive, exchange,

 or distribute child pornography. (Id.) Movant testified that he agreed with

 the government’s factual basis and that he was in fact guilty as charged in

 Count 1. (Id. at 25-26.)

          On January 14, 2021, the District Court sentenced Movant to 180

 months’ imprisonment, to be followed by 15 years’ supervised release. (Doc.

 at 187 at 2-3.) The instant § 2255 motion followed.

 II.      28 U.S.C. § 2255 MOTION

          In his § 2255 motion, Movant enumerates four grounds for relief:1

       1. that the offense of conviction is unconstitutionally overbroad in
          violation of the First Amendment to the extent that it criminalizes
          the mere posting of hyperlinks that are not themselves obscene;

       2. that the offense of conviction is an “aggravating” statute that
          requires a predicate but that he was not charged with any
          underlying substantive child pornography offense;

       3. that he was selectively prosecuted and that unwarranted
          sentencing disparities exist relative to his codefendants; and




          1
              Movant’s claims have been restated for the sake of clarity.
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    4. that the government would remain bound by the plea
       agreement’s promise against further prosecution if he is granted
       habeas relief.

 (Doc. 196 at 2-3, 5-29.) In a section titled “The Conclusion of Grounds 1-3,”

 Movant argues that his plea counsel was ineffective for failing to raise a pre-

 plea challenge to the indictment consistent with Grounds 1 and 2, and for

 failing to challenge his sentence as unwarrantedly disparate from his

 codefendants and the result of selective prosecution after several codefendants

 entered into agreements to plead guilty to lesser charges. (See id. at 34-37.)

 Movant also alleges that his counsel has denied post-conviction discovery by

 withholding part of his casefile. (Id. at 31-32.)

       As an initial matter, the government’s response characterizes grounds

 1 through 4 as claims of substantive plea court error and construes two

 unenumerated claims of ineffective assistance of counsel in that counsel

 rendered ineffective assistance by (5) failing to negotiate a reduction of his

 charges and (6) denying him his discovery. (See doc. 200 at 5-6.) Movant

 replies that all grounds are raised as grounds of ineffective assistance of

 counsel. (Doc. 201 at 4.)

       The Court finds that Movant presents Grounds 1-3 as both claims of

 substantive error and as related claims of ineffective assistance of counsel. As
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 discussed further below, Ground 4 seeks a prospective advisory opinion and

 is not a proper claim for relief. Out of an abundance of caution, the Court will

 also address any potential unenumerated claims related to (5) counsel’s failure

 to negotiate a reduction of charges and (6) counsel’s withholding of

 postconviction “discovery.” See Clisby v. Jones, 960 F.2d 925, 935-36 (11th

 Cir. 1992) (holding that a district court must address all claims for relief

 presented in a habeas corpus petition).

       A.     Collateral Attack Waiver

       Movant’s plea agreement contained the following appeal waiver

 provision:

       LIMITED WAIVER OF APPEAL: To the maximum extent
       permitted by federal law, the Defendant voluntarily and
       expressly waives the right to appeal his conviction and sentence
       and the right to collaterally attack his conviction and sentence in
       any post-conviction proceeding (including, but not limited to,
       motions filed pursuant to 28 U.S.C. § 2255) on any ground,
       except that the Defendant may file a direct appeal of an upward
       departure or upward variance above the sentencing guideline
       range as calculated by the District Court. Claims that the
       Defendant’s counsel rendered constitutionally ineffective
       assistance are excepted from this waiver. The Defendant
       understands that this Plea Agreement does not limit the
       Government’s right to appeal, but if the Government initiates a
       direct appeal of the sentence imposed, the Defendant may file a
       cross-appeal of that same sentence.


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 (Doc. 163-1 at 16.) Movant initialed the page containing the appeal waiver

 and both Movant and his attorney signed the plea agreement. (Id. at 17.)

       At the change-of-plea hearing, the District Court specifically

 questioned Movant about the appeal waiver provision, asking him “[d]o you

 understand that as part of your plea agreement, you are giving up the right to

 appeal your sentence unless there is an upward departure or upward variance

 by the court from the guidelines, an appeal by the government, or a claim of

 ineffective assistance of counsel filed by you?” (Doc. 198 at 21.) Movant

 testified “[y]es, I understand that, your honor.” (Id.) The Court further

 questioned “[d]o you understand you are giving up your right to collaterally

 attack your conviction and sentence in any postconviction proceeding?” (Id.)

 Movant testified “[y]es, your honor,” and further testified that he had not been

 threatened, coerced, or been made any undisclosed promises outside the plea

 agreement in exchange for waiving his collateral attack rights. (Id. at 21-22.)

       A collateral attack waiver will be enforced if it was made knowingly

 and voluntarily. United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir.

 1993). To establish that the waiver was made knowingly and voluntarily, the

 government must show either that (1) the district court specifically questioned


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 the defendant about the waiver during the plea colloquy, or (2) the record

 makes clear that the defendant otherwise understood the full significance of

 the waiver. Id.; see also United States v. Weaver, 275 F.3d 1320, 1333 (11th

 Cir. 2001) (holding that a waiver was valid where it was “referenced” at the

 change-of-plea hearing, and where the district court established that the

 defendant had read and understood “every page and every word” of the plea

 agreement).

       A valid collateral attack waiver applies to difficult or debatable issues

 of law and even blatant error. United States v. Grinard-Henry, 399 F.3d 1294,

 1296 (11th Cir. 2005). A defendant may even waive constitutional issues by

 executing a valid collateral attack waiver, including an Eighth Amendment

 claim that a sentence was cruel and unusual due to its length. United States v.

 Bascomb, 451 F.3d 1292, 1297 (11th Cir. 2006).

       Here, the record establishes that Movant waived his collateral attack

 rights knowingly and voluntarily. The government read the terms of the plea

 agreement into the record, including the full text of the collateral attack waiver,

 and Movant testified that this was the agreement he had entered into with the

 government and that he understood the agreement. (Doc. 198 at 11-15, 21-


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 22.) The plea court also specifically informed Movant that he was waiving

 his collateral attack rights, and he again testified that he understood. (Id.)

 Courts apply a “strong presumption” that statements made by a defendant

 during the plea colloquy are true. United States v. Medlock, 12 F.3d 185, 187

 (11th Cir. 1994). Accordingly, the government has shown that record makes

 clear that the Movant understood the full significance of the collateral attack

 waiver, and that he entered into it knowingly and voluntarily. See Weaver,

 275 F.3d at 1333. To the extent that Movant raises Grounds 1 through 3 as

 claims of substantive plea court error, any such claims are barred by the

 collateral attack waiver in his plea agreement. See Bushert, 997 F.2d at 1351.

       B.     Enforceability of Plea Agreement

       In Ground 4, Movant asserts that, in the event he is granted habeas relief

 and his conviction is vacated, the plea agreement would remain enforceable

 and would preclude the government from further prosecuting him for the

 conduct underlying his present conviction. (Doc. 196 at 38-41.) To that end,

 Movant seeks a prospective declaration that the plea agreement would bar any

 future prosecution for the same offense(s) if his § 2255 motion is granted.

 (Doc. 196 at 41, see also doc. 201 at 19.)


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       Here, Movant’s Ground 4 does not allege any basis for habeas relief.

 Notably, Movant does not allege that the government has breached the plea

 agreement in any way. (See generally doc. 196; doc. 201.) Moreover, Movant

 has not been granted § 2255 relief, and the government is not presently

 attempting to further prosecute or re-prosecute him. Consequently, Ground 4

 does not implicate any live case or controversy before this Court, and what

 Movant is seeking is an impermissible prospective advisory opinion about

 whether theoretical further prosecution would breach the plea agreement. See,

 e.g., Miller v. FCC, 66 F.3d 1140, 1145 (11th Cir. 1995) (explaining that

 Article III of the Constitution limits the jurisdiction of federal courts to

 resolving actual cases or controversies between adverse parties and that “[t]he

 prohibition on advisory opinions is a logical corollary of the case or

 controversy requirement”). Ground 4 is noncognizable in a § 2255 motion.

       C.     Ineffective Assistance of Counsel

       Movant argues that his plea counsel was ineffective for failing to raise

 a pre-plea challenge to the indictment on the grounds that (1) the statute of

 conviction is unconstitutionally overbroad in violation of the First

 Amendment such that Movant is actually innocent, and (2) that he was not


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 charged with any valid predicate sufficient to support the “aggravating”

 § 2251(d)(1)(A) offense, and (3) for failing challenge his sentence as

 unwarrantedly disparate from his codefendants and the result of selective

 prosecution. (Doc. 196 at 34-36.) Movant asserts that the factual and legal

 predicates underlying these claims were available to counsel prior to his plea

 and that it was unreasonable for counsel to advise Movant to plead guilty to a

 constitutionally deficient indictment. (Id. at 35.) Movant contends that, but

 for counsel’s deficient advice, he would not have pled guilty and would have

 sought a directed verdict at trial. (Id. at 36.) Movant also asserts that his

 counsel has denied him access to post-conviction discovery by failing to

 provide Movant with a copy of a CD referenced in Movant’s casefile. (Id. at

 31-32.)

       The Sixth Amendment right to counsel includes the right to the

 effective assistance of competent counsel. McMann v. Richardson, 397 U.S.

 759, 771 & n.14 (1970). To make a successful claim of ineffective assistance

 of counsel, a petitioner must show that (1) his counsel’s performance was

 deficient, and (2) the deficient performance prejudiced his defense. Strickland

 v. Washington, 466 U.S. 668, 687 (1984). Counsel’s performance is deficient


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 only if it falls below the wide range of competence demanded of attorneys in

 criminal cases. See Strickland, 466 U.S. at 687-88. Prejudice occurs when

 there is a “reasonable probability that, but for counsel’s unprofessional errors,

 the result of the proceeding would have been different.” Id. at 694.

       Strickland’s two-part test applies in the context of guilty pleas. Lafler

 v. Cooper, 566 U.S. 156, 162-64 (2012). Because a voluntary, unconditional

 guilty plea generally waives all nonjurisdictional defects in the proceedings,

 a defendant who enters a guilty plea can attack only “the voluntary and

 knowing nature of the plea.” Wilson v. United States, 962 F.2d 996, 997 (11th

 Cir. 1992). A defendant can overcome the otherwise voluntary and intelligent

 character of his guilty plea only if he can establish that the advice that he

 received from counsel in relation to the plea was not within the range of

 competence demanded of attorneys in criminal cases, in violation of

 Strickland. Premo v. Moore, 562 U.S. 115, 121, 126 (2011). In order to

 establish prejudice in the context of a guilty plea, a defendant must show 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.” Id. at 129

 (quotations omitted). This means that “a petitioner must convince the court


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 that a decision to reject the plea bargain would have been rational under the

 circumstances.” Diveroli v. United States, 803 F.3d 1258, 1263 (11th Cir.

 2015).

       In evaluating the knowingness and voluntariness of a plea, the

 representations of the defendant at the plea hearing, as well as any findings

 made by the judge accepting the plea, “constitute a formidable barrier in any

 subsequent collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 74

 (1977). Courts apply a “strong presumption” that statements made by a

 defendant during the plea colloquy are true. United States v. Medlock, 12

 F.3d 185, 187 (11th Cir. 1994).

       Here, the plea court conducted a lengthy and thorough plea colloquy.

 (See Doc. 198.) Movant testified that he was pleading guilty of his own

 volition because he was in fact guilty, that he understood the elements of the

 charge against him and the penalties he faced, and described the conduct to

 which he was pleading guilty on Count 1 in his own words as “I had child

 pornography on my computer. I was asking others to receive other child

 pornography. I was displaying it on the internet.” (Id. at 6-8, 11, 15-21, 23-

 26.) Movant testified that he was satisfied with counsel’s representation. (Id.


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 at 17.) Movant has not carried his heavy burden to show that his plea colloquy

 testimony was false. See Blackledge, 431 U.S. at 74; Medlock, 12 F.3d at

 187; see also United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988)

 (“When a defendant makes statements under oath at a plea colloquy, he bears

 a heavy burden to show his statements were false.”).

       Movant has not otherwise shown that the advice he received from

 counsel was so deficient as to render his plea involuntary. Courts repeatedly

 have found that § 2251(d) is not unconstitutionally vague or overbroad,

 particularly as applied to conduct like Movant’s in this case. See, e.g., United

 States v. Cox, 963 F.3d 915, 922-23 (9th Cir. 2020) (holding that

 § 2251(d)(1)(A) was not unconstitutionally vague as applied to defendant who

 posted links to child pornography); United States v. Bledsoe, 177 F. App’x

 311, 312 (4th Cir. 2006) (rejecting constitutional overbreadth challenge to

 § 2251(d)); see also United States v. Petersen, No. CR-13-30-M-DWM, 2014

 WL 2807420 at (D. Mont. June 20, 2014) (denying motion to dismiss

 indictment   and    determining    that    §§ 2251(d)   and    (e)   were   not

 unconstitutionally ambiguous, overbroad, or vague); United States v. Yong

 Wang, No. 11 Cr. 730(PGG), 2013 WL 452215 at *18-*19 (S.D.N.Y Feb. 5,


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 2013) (Denying motion to dismiss indictment and determining that § 2251(d)

 was not unconstitutionally vague as applied to defendant who allegedly posted

 links leading to internal pages containing child pornography on websites that

 he owned and operated) United States v. Pabon-Cruz, 255 F.Supp.2d at 211-

 12 (S.D.N.Y. 2003) (denying motion for judgment of acquittal and finding

 that § 2251(d)(1)(A) conviction did not implicate First Amendment concerns

 where defendant posted links in chatrooms to images that he knew to be of

 actual children engaged in sexual activity). Further, nothing in the plain

 language of § 2251(d)(1)(A) requires a predicate offense. See 18 U.S.C.

 § 2251(d)(1)(A). Counsel was not ineffective for failing to raise meritless

 objections. See Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994)

 (“[I]t is axiomatic that the failure to raise nonmeritorious issues does not

 constitute ineffective assistance.”). Movant’s Grounds 1-2 do not warrant

 relief.

           To the extent that Movant alleges in Grounds 3 and 5 that counsel was

 ineffective pre-plea for failing object to selective prosecution and/or failing to

 negotiate a more favorable plea agreement, these claims arise from the fact

 that codefendants Ronnie Boggs, Matthew Peltz, Jordan Taff, and Tyler


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 Collado all ultimately negotiated pleas where they pled guilty to receipt of

 child pornography in violation of 18 U.S.C. § 2252(a)(2) and received

 sentences between 60 and 87 months’ imprisonment. (See doc. 196 at 26.)

 Movant asserts that he was similarly situated to these codefendants and

 complains that his counsel was not able to obtain the same deal. (See id.)

 Movant states that the government was unwilling to make a similar offer in

 his case due to the age of the children involved in some of the images

 distributed by Movant.      (See id. at 27.)      Movant contends that the

 government’s comparatively harsher treatment of him for “trafficking of

 prepubescent      and   infant    child     pornography”     constituted    an

 “unconstitutionally arbitrary classification” with respect to his codefendants.

 (Id. at 29-30.)

       Similarly, to the extent that Movant alleges that counsel was ineffective

 at sentencing for failing to object that that his sentence was unwarrantedly

 disparate from codefendants Boggs, Peltz, Taff, and Collado, Movant does

 not dispute that he was subject to a higher base offense level based on a

 different crime of conviction nor does he argue that any specific Sentencing

 Guidelines enhancements for the ages of the minors involved, the number of


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 images involved, consideration he received for sharing images, sadistic or

 masochistic content, and the use of a computer were erroneously applied. (See

 id.) Rather, Movant apparently argues that discriminating at all between

 different “types” of child pornography for sentencing purposes is

 unconstitutionally arbitrary. (See id. at 27-28.)

       Here, Movant has not shown deficient performance by his counsel.

 Movant presents nothing to suggest that a better deal may have been available

 to him. As movant tacitly admits, the government refused to make him the

 same plea offer because Movant’s offense conduct was comparatively severe,

 involving the distribution of images depicting prepubescent and infant

 children, and the balance of aggravating and mitigating factors was different

 in each case, which the Court considered explicitly at sentencing. (See doc.

 198 at 25; doc. 199 at 11-14, 17-19.) Indeed, codefendant Terence Dixon, the

 creator of the chatroom, was not offered any plea except to the § 2251(d)

 offense and received a 300-month sentence. (See doc. 176.) Movant falls far

 short of carrying his “demanding burden” to show that the government abused

 its charging discretion. See United States v. Smith, 231 F.3d 800, 807-08

 (11th Cir. 2000) (“In order to dispel the presumption that a prosecutor has not


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 violated equal protection, a criminal defendant must present clear evidence to

 the contrary.”) (quoting United States v. Armstrong, 517 U.S. 456, 464 (1996)

 (emphasis in original). Movant cannot satisfy his burden with speculation,

 and, in any event, individuals who “traffick[ed] … prepubescent and infant

 child pornography” is simply not an arbitrary suspect classification

 tantamount to race or religion. Cf. id. Consequently, counsel did not render

 deficient performance during plea negotiations, or by failing to make meritless

 objections that Movant’s was selectively prosecuted or that his sentence was

 longer than some of his codefendants who pled guilty to a different offense.

 Further, Movant has not shown that he was prejudiced by counsel’s

 performance at sentencing where the Court varied downwards to a statutory-

 minimum 180-month sentence. (See doc. 199 at 17-19.)

       Finally, as to Movant’s Ground 6 stating that his counsel denied him

 discovery, the events underlying this claim occurred postconviction and do

 not state a claim for habeas relief. See Carroll v. Sec’y, Dep’t of Corr., et al.,

 574 F.3d 1354, 1365 (11th Cir. 2009) (explaining that habeas corpus is not an

 appropriate remedy for challenges that do not undermine the legality of the

 detention or imprisonment—i.e., the conviction itself).


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        Accordingly, because none of the grounds presented warrant relief, IT

 IS RECOMMENDED that the § 2255 motion be DENIED.

 III.   CERTIFICATE OF APPEALABILITY

        Pursuant to Rule 11(a) of the Rules Governing Section 2255

 Proceedings, “[t]he district court must issue or deny a certificate of

 appealability when it enters a final order adverse to the applicant. . . . If the

 court issues a certificate, the court must state the specific issue or issues that

 satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Section 2253(c)(2)

 states that a certificate of appealability may issue “only if the applicant has

 made a substantial showing of the denial of a constitutional right.”            A

 substantial showing of the denial of a constitutional right “includes showing

 that reasonable jurists could debate whether (or, for that matter, agree that) the

 [motion to vacate] should have been resolved in a different manner or that the

 issues presented were adequate to deserve encouragement to proceed further.”

 Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks

 omitted). Because reasonable jurists would not debate the resolution of the

 issues presented, IT IS FURTHER RECOMMENDED that a COA be

 DENIED. See id. If the District Judge adopts this recommendation and


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 denies a COA, Movant is advised that he “may not appeal the denial but may

 seek a certificate from the court of appeals under Federal Rule of Appellate

 Procedure 22.” 28 U.S.C. foll. § 2255, Rule 11(a).

 IV.   CONCLUSION

       For the reasons stated above, IT IS RECOMMENDED that the 28

 U.S.C. § 2255 motion [196] be DENIED, and that no certificate of

 appealability issue.

       SO RECOMMENDED, this 3rd day of August, 2023.

                                             /s/ J. Clay Fuller
                                             J. Clay Fuller
                                             United States Magistrate Judge




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