Erskine v. United States
Decision Date | 29 August 2018 |
Docket Number | CRIMINAL NO. 14-0274-KD,CRIMINAL NO. 15-0079-KD,CIVIL ACTION NO. 18-0236-KD-MU |
Court | U.S. District Court — Southern District of Alabama |
Parties | MICHAEL ROBERT ERSKINE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
This cause is before the Court on Petitioner Michael Robert Erskine's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, filed only in Criminal No. 14-0274-KD (see Doc. 82). The Court treats the motion as having been filed in Criminal No. 15-0079-KD as well (see id. ( )), as with the government's response in opposition (Doc. 84).1 This action has been referred to the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a)(2)(R). Following consideration of all relevant pleadings in this case, it is recommended that Erskine's conclusory § 2255 motion be DENIED without an evidentiary hearing. Compare, e.g., Rosin v. United States, 786 F.3d 873, 878 (11th Cir.) (), cert. denied, ___ U.S. ___, 136 S.Ct. 429, 193 L.Ed.2d 320 (2015), and United States v. Bejacmar, 217 Fed.Appx. 919, 921 (11th Cir. Feb. 15, 2007) () with Means v. Secretary, Dep't of Corrections, 433 Fed.Appx. 852, 855 (11th Cir. July 12, 2011) () (citation omitted)), cert. denied, 565 U.S. 1217, 132 S.Ct. 1580, 182 L.Ed.2d 198 (2012) and Allen v. Secretary, Florida Dep't of Corrections, 611 F.3d 740, 745 (11th Cir. 2010) (), cert. denied, 563 U.S. 976, 131 S.Ct. 2898, 179 L.Ed.2d 1192 (2011).
On November 25, 2014, Erskine was charged by indictment with one count of failing to register and update a registration as required by the Sex Offender Registration and Notification Act (SORNA—42 U.S.C § 16901 et seq.), in violation of 18 U.S.C. § 2250(a). (Doc. 1 in Criminal No. 14-0274-KD, at 1 ()).2 Erskine's case was continued for a number of trial terms (see Docs. 24, 28, 31, 37 & 39 in Criminal No. 14-0274-KD). In the meantime, on April 30, 2015, Erskine was charged by separate indictment with one count of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1). See United States v. Erskine, Criminal No. 15-0079-KD, Doc. 1, at 1 ().3
Erskine filed written notices of intent to plead guilty to the sole count of the indictment in Criminal No. 14-0274-KD on June 16, 2015 (Doc. 45) and to the sole count of the indictment in Criminal No. 15-0079-KD (see Doc. 16). Erskine signed the negotiated Plea Agreement, which addressed both charges, on June 18, 2015 (see, e.g., Doc. 48 in Criminal No. 14-0274-KD, at 10 ( 4 . Erskine entered a counseledguilty plea to those charges on June 23, 2015 (see, e.g., Doc. 79 in Criminal No. 14-0274-KD). During the change of plea hearing, Erskine acknowledged receiving copies of the indictments, fully discussing the charges—and possible defenses to thosecharges—with his attorney, and stated he understood the charges pending against him. (See id. at 5-6.)5 Importantly, Erskine acknowledged that with respect to the receipt of child pornography charge that if the Government was correct in its assessment and the Court found that he had a qualifying offense and the 15-year minimum mandatory enhancement applied to his case, he was facing a 15 to 40-year sentence. (Id. at 6-7; see also Doc. 48 in Criminal No. 14-0274-KD, at 4 ()).
(Doc. 79 in Criminal No. 14-0274-KD, at 7; see also id. at 9 () ). Erskine also acknowledged that he read the plea agreement and discussed it with counsel before signing it; that he was not promised anything not included in the plea agreement; and that no one tried to force him to plead guilty. (Id. at 7-8.) Before stating affirmatively on the record that he wanted to plead guilty to the charges (id. at 9), Erskine also acknowledge the rights he was waiving—including the right to a trial by jury and all rights attendant thereto—by entering a guilty plea (see id. at 8-9). And after the Government placed on the record the elements of each charge and the facts underlying the propriety of the charges, the same content as that previously outlined and contained in the Factual Resume (compare id. at 9-12 with Doc. 48 in Criminal No. 14-0274-KD, Factual Resume), Erskine specifically stated on the record that the Government could prove those facts and pled guilty to the charges (Doc. 79 in Criminal No. 14-0274-KD, at 12).
Before sentencing, Erskine, through his attorney, initially filed the following position with respect to the Presentence Investigation Report on September 14, 2015, in Criminal No. 15-0079-KD:
(Doc. 23). On October 6, 2015, Erskine, through counsel, filed his amended position with regard to the Presentence Investigation Report in both Criminal No. 14-0274-KD and Criminal No. 15-0079-KD. (Compare Doc. 56 in Criminal No. 14-0274-KD with Doc. 29 in Criminal No. 15-0079-KD).
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