I. Procedural and Factual Background Bell and co-defendant, Patrick Mullane Maxfield ("Maxfield"), were indicted by a federal grand jury on September 11, 2012, and charged in Count One with conspiring to produce child pornography in violation of 18 U.S.C. §§ 2251(a), and in Count Three with conspiracy to transport and distribute child pornography in violation of 18 U.S.C. § 2251(a). Bell was charged in Count Two with producing child pornography in violation of 18 U.S.C. § 2251(a) and in Count Four with transportion and distribution of child pornography in violation of 18 U.S.C. §§2252A(a)(1) and (a)(2). Bell was not charged in Count Five of the indictment.
After being arrested in the District of Colorado, Bell made her initial appearance in this district on November 8, 2012. [Doc. 7]. Counsel was appointed to represent her, [Doc. 7, 20]. A negotiated plea agreement was filed with the Court on March 12, 2013, [Doc. 34]. Pursuant to the plea agreement, petitioner pled guilty on March 27 to Count Four, the knowing transportation and distribution of child pornography. [Doc. 43]. The government agreed to dismiss the other charges. The plea agreement also contained a waiver of petitioner's right to file a direct appeal as long as her sentence was within "the sentencing guideline range or any applicable mandatory minimum sentence (whichever is greater) as determined by the district court," and her right to collaterally attack her conviction or sentence, except for claims of ineffective assistance of counsel or prosecutorial misconduct. [Id. at ¶ 10].
The Court ordered a presentence investigation report ("PSR") and scheduled a sentencing hearing for August 26, 2013. Petitioner faced a statutory mandatory minimum of five years of imprisonment to a maximum term of 20 years. The PSR established her guideline range for imprisonment at 97 to 121 months, [PSR, ¶¶ 79, 83], and a range of five years to life on supervised release. [Id. at ¶ 92]. At sentencing on September 9, 2013, the Court adopted the PSR, varied upward, and sentenced petitioner to a 188-month term of imprisonment, imposed a lifetime term of supervised release, ordered restitution in the amount of $6,910.00, and imposed a $100.00 mandatory assessment. Among other conditions of supervised release, the Court ordered that petitioner have no contact with her co-defendant, Maxfield. [Doc. 62]. Judgment was entered on September 13, 2013, [Id.].
Bell filed a notice of appeal on September 15, 2013, [Doc. 63]. The Sixth Circuit granted the government's motion to dismiss the appeal on the basis of the appellate-waiver provisions ofpetitioner's plea agreement on April 23, 2014, but also found that "the district court neither abused its discretion nor committed plain error in imposing the [no-contact] condition because the condition addresses a valid concern regarding the safety and welfare of Bell."2 Petitioner did not seek a writ of certiorari to the United States Supreme Court.. The instant § 2255 motion was then timely filed on August 18, 2014, and the amended § 2255 motion on July 17, 2015, the same day as Maxfield filed a § 2255 motion, [see Doc. 100].
Bell's plea agreement contained the following stipulated statement of facts:
a) The defendant met co-defendant Patrick Maxfield in November 2008 via an online internet chatroom. At that time, the defendant resided in Johnson County, Tennessee and Maxfield resided in El Paso County, Colorado. This relationship continued until the defendant and Maxfield were arrested on the instant charges in September 2012.
b) The relationship between defendant and Bell progressed and the defendant traveled from the Eastern District of Tennessee to Maxfield's home at 1145 Modell Drive, Colorado Springs, in El Paso County, Colorado. The defendant and Maxfield became intimate. The defendant and Maxfield periodically met at Maxfield's home. When they were not physically together, the defendant and Maxfield communicated with each other on a regular basis via telephones, electronic mail, text messaging, instant messaging, and other means of electronic communications. The parties agree that these communications traveled in interstate commerce from the Eastern District of Tennessee to the District of Colorado and vice-versa.
c) At all relevant times, the defendant operated a personal computer from her home in the Eastern District of Tennessee, with access to the internet provided by Sprint, an internet service provider.
d) From on or about August 1, 2009 to on or about October 31, 2009, the defendant downloaded seven images of child pornography onto her personal computer located at 394 Old Butler Road, Apartment B, Mountain City, Johnson County, in the Eastern District of Tennessee. The defendant provided the sevenimages of child pornography to Maxfield by remotely accessing Maxfield's computer and storing these images on Maxfield's computer. At the time she transmitted these images to Maxfield's computer, the defendant knew that the seven images would be transported from the Eastern District of Tennessee to Colorado.
e) The parties agree that between August 1, 2009 and February 1, 2011, Maxfield received the seven images of child pornography sent from the defendant's computer. The parties agree that the defendant knew Maxfield received the seven images of child pornography on his computer contemporaneously with these events.
f) The parties agree that defendant knowingly transported and distributed seven images of child pornography to Maxfield between August 1, 2009 and February 1, 2011 via the internet, which is a means of interstate commerce.
g) The parties agree that the seven distributed images depict an actual minor engaged in sexually explicit conduct as defined in 18 U.S.C. § 2256(2)(A)(v) to include the lascivious exhibition of the genitals or pubic area of a minor.
h) The defendant admits that at the time she distributed the seven images of child pornography, she was aware of their sexually explicit nature and character and she was aware that they depict an actual minor engaged in sexually explicit conduct, including the lascivious exhibition of the genitals or pubic area of a minor.
i) The parties agree that the defendant transported the seven images of child pornography transported in interstate commerce from the Eastern District of Tennessee to the District of Colorado.
[Doc. 34, ¶¶ 4(a) - 4(i)]. The PSR contained the following unobjected to statement of additional facts:
The investigation in this case began in February of 2011, when a hospital health care worker in Colorado Springs, Colorado, reported that the defendant appeared to be a victim of violent domestic abuse. The El Paso County, Colorado, Sheriff's Office interviewed the defendant, who admitted that the numerous bruises, lacerations, and injuries she received had been inflicted byher boyfriend and co-defendant, Patrick Maxfield.
Defendant Bell reported that she was a resident of Johnson County, Tennessee, who had met Maxfield via an adult online chat room in late 2008/early 2009. The relationship eventually became sexual, after Maxfield financed Bell's trip to Colorado Springs, Colorado. For approximately two years (2009-2011), the defendant periodically flew from east Tennessee to Colorado Springs, where she cohabitated with Maxfield for 10 to 14 days each time. They engaged in consensual sexual intercourse during these visits.
During 2010, it appeared the relationship evolved into the classical battered wife syndrome. Maxfield found fault with the defendant's behavior, beat her, she apologized and accepted punishment from him in the form of more beatings and written "improvement contracts." Maxfield allegedly beat the defendant with a 2-inch wooden dowel, an aluminum baseball bat, a crowbar, and a fire extinguisher. He kept separate sets of work gloves in his apartment, labeled for different types of beatings he inflicted on the defendant (for example, this is for the bitch when she doesn't do her chores). Maxfield left written notes to the defendant, and the defendant signed other written notes as, "MWPS," which is an acronym for "Most Worthless Piece of Shit."
The defendant is the mother of [AB], whose date of birth is ___ ___, 2004. The defendant left [AB] in the custody of her parents when she visited Maxfield in Colorado.
Based on Bell's interview, the El Paso County Sheriff's Office obtained a state court search warrant to search Maxfield's apartment in Colorado Springs for the instruments of domestic violence. They executed the first search warrant on February 7, 2011, and during the course of the search, they found the first of multiple "contracts" between Bell and Maxfield which were suggestive of extreme violence. The Sheriff's Office obtained a second search warrant for indicia of ownership, indicia of occupancy, indicia of abuse, documents bearing evidence of physiological or physical abuse, which was executed on February 7, 2011. During the course of the second search warrant, the officers found inter alia, a copy of the birth certificate and identification card for [AB] and a deeply disturbing document
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