Risler v. United States
| Decision Date | 03 January 2022 |
| Docket Number | 3:17-cr-497 |
| Court | U.S. District Court — Northern District of Ohio |
| Parties | Mark Stevan Risler, Petitioner-Defendant, v. United States of America, Respondent-Plaintiff. |
Petitioner Mark Stevan Risler filed a motion for relief under 28 U.S.C § 2255, asserting his sentence should be reduced because his attorney allegedly provided ineffective assistance. (Doc. No. 29). The government opposes Risler's motion. (Doc. No. 32).
Risler also has filed a motion for the appointment of counsel, (Doc. No. 28), a motion for reconsideration of his sentence, (Doc. No. 34), a motion for modification of the conditions of his supervised release, (Doc. No. 39), a motion for compassionate release, (Doc. No. 41), and a motion for a ruling on his motions. (Doc. No. 43).
For the reasons stated below, I deny Risler's motions.
On December 6, 2017, Risler was charged by indictment with one count of knowingly receiving and distributing child pornography in violation of 18 U.S.C. § 2252(a)(2). (Doc. No. 1). Risler subsequently pled guilty without a plea agreement on May 10, 2018. (See non-document entry dated May 11, 2018). Risler faced a minimum mandatory term of five years in prison and a maximum term of twenty years. (Doc. No. 18 at 17). His Guideline imprisonment range was calculated at 151 to 188 months. (Id.). I ultimately varied downward from the Guideline range and sentenced Risler to 84 months in prison, along with a 5-year term of supervised release. (Doc. No. 26). I also ordered Risler to pay restitution in the amount of $41, 500. (Id.). Risler did not appeal.
Risler filed a motion for the appointment of counsel to assist him with a § 2255 motion to reduce his sentence on July 23, 2019, (Doc. No. 28), and his § 2255 motion on August 7, 2019. (Doc. No. 29). The government filed a brief in opposition to Risler's § 2255 motion, (Doc. No. 32), and Risler filed a brief in reply. (Doc. No. 33). Risler later filed what he described as a motion for reconsideration of his sentence, arguing the Supreme Court's decision in Holguin-Hernandez v. United States, 140 S.Ct. 762 (2020), justifies the reduction of his sentence from 84 to 60 months.[1] (Doc. No. 34).
Defendants do not have a constitutional right to counsel in postconviction proceedings. See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). “Some of the factors the court should consider when making the decision to appoint counsel include the viability or frivolity of the indigent [defendant']s claims, the nature and complexity of the case, and the indigent [defendant']s ability to present the case.” Sellers v. United States, 316 F.Supp.2d 516, 522 (E.D. Mich. 2004) (). I conclude the appointment of counsel is not warranted in this case because Risler has shown he is able to present his arguments without the assistance of counsel and, as I discuss below, his claims lack merit.
Section 2255 permits a defendant to challenge the sentence he received through a claim that the defendant's sentence was “imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). Defendants challenging their sentence under § 2255 must identify a constitutional error, “a fundamental defect which inherently results in a complete miscarriage of justice, . . . an omission inconsistent with the rudimentary demands of fair procedure[, or] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Hill v. United States, 368 U.S. 424, 428 (1962) (citations and internal quotation marks omitted).
Risler asserts one ground for relief - ineffective assistance of trial counsel. In support of his claim, he asserts:
(Doc. No. 29 at 4). Risler requests that his sentence be reduced by two years and the restitution order be reduced due to financial hardship. (Doc. No. 29 at 12).
Risler alleges his attorney “protested that it was an inconvenience for him to travel 3 hours to [Risler's] detention facility to visit/or discuss discovery” and failed to return phone calls or letters. (Id.). He further alleges his attorney told him “the overwhelming evidence by the prosecutor was such that the court would sentence me to an increased time as [opposed] to the guideline.” (Id.). Finally, Risler contends his attorney provided ineffective assistance by failing to object to the government's assertion that he “possessed more videos than had been presented, ” and that this allegedly nonfactual information “ultimately resulted in an increase of [his] sentence by 2 years.” (Id.).
Defendants in criminal proceedings have a Sixth Amendment right to the effective assistance of counsel, including during the plea-bargaining process. See, e.g., Lafler v. Cooper, 566 U.S. 156, 162 (2012). A defendant who asserts he received the ineffective assistance of counsel must prove “counsel's representation fell below an objective standard of reasonableness, ” and “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
While Risler offers various complaints about his attorney's performance before Risler entered his guilty plea, Risler does not allege he would have proceeded to trial had his attorney met with him more frequently or responded more promptly to Risler's calls and letters. (See Doc. No. 33 at 2-4). Thus, to the extent Risler's ineffective-assistance claim addresses events both before and after he pled guilty to the sole count in the indictment, I conclude Risler fails to establish the second Strickland prong with respect to his guilty plea. Hill v. Lockhart, 474 U.S. 52, 59 (1985) (“[I]n order to satisfy the ‘prejudice' requirement, the 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.”).
Risler also claims he received ineffective assistance of counsel when his attorney failed to object to the government's statement that the case involved a large number of images and videos. (See Doc. No. 33 at 4 ()). Risler fails to establish either prong of the Strickland test with respect to his sentencing proceedings.
Risler claims I indicated during his sentencing hearing that “but for the additional 500 videos (suggested by the prosecutor), ” I would have sentenced him to the mandatory minimum term of 60 months in prison. (Id.). Risler's recollection of the hearing is incorrect. To the contrary, I specifically stated during the sentencing hearing that (Doc. No. 37 at 23).
Moreover, Risler's suggestion that there was no proof of these “additional 500 videos” is disproven by the record evidence. The forensic examination of electronic devices seized from Risler's residence uncovered 1, 117 image files and 541 video files. (Doc. No. 18 at 5).
Beyond this, Risler fails to acknowledge his attorney offered a specific objection to the five-level enhancement resulting from the number of images Risler possessed. The presentence report indicated Risler was subject to the five-level enhancement “[b]ecause the offense involved 1, 117 images, which is 600 or more images pursuant to USSG §2G2.2(b)(7)(D).” (Doc. No. 18 at 11). Trial counsel submitted a written objection, citing to case law and arguing “[a] five-point enhancement . . . does not accurately portray the scope of the Defendant's act and its inclusion is unnecessarily severe.” (Id. at 27). Counsel also reiterated this objection during Risler's sentencing hearing. (Doc. No. 37 at 16-17). Thus, Risler's contention that his attorney “offered no rebuttal argument or objection, ” (Doc. No. 33 at 4), is disproven by the record.[2]
Risler also claims his attorney was ineffective in failing to file a direct appeal. (Doc. No. 33 at 4). But “the Constitution is only implicated when a defendant actually requests an appeal, and his counsel disregards the request.” Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) (emphasis added). Risler has not alleged he actually requested that his trial attorney file an appeal. Therefore, Risler fails to show his attorney violated his Sixth Amendment right to counsel by not filing a notice of appeal.
Risler fails to show his attorney's performance was objectively unreasonable or that he suffered prejudice due to his attorney's performance. Therefore, I deny his motion to reduce his sentence on this basis.
Risler also argues I should reduce his sentence from 84 months to 60 months based upon the Supreme Court's decision in Holguin-Hernandez v. United States, 140 S.Ct. 762 (2020). He contends that...
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