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Heath v. United States

United States District Court, Eighth Circuit

November 20, 2013

RYAN HEATH, Movant,
v.
UNITED STATES OF AMERICA

ORDER

LINDA R. READE, District Judge.

I. INTRODUCTION

This matter appears before the court on Ryan Heath's ("the movant") motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 ("motion") (civil docket no. 1). The movant filed the motion on April 30, 2012. On February 27, 2013, the court, among other things, directed the government to brief the claims that the movant included in the motion. See February 27, 2013 Order (civil docket no. 2). On March 26, 2013, Brent D. Rosenberg, the movant's counsel, [1] filed an affidavit (civil docket no. 4). On April 26, 2013, the government filed a resistance to the motion (civil docket no. 5). On May 14, 2013, the movant filed a reply (civil docket no. 7). The motion is fully submitted and ready for decision.

II. RELEVANT BACKGROUND

A. Procedural History

On January 28, 2009, the government filed a two-count indictment against the movant. The indictment charged the movant with producing and attempting to produce visual depictions of minors engaging in sexually explicit conduct in violation of 18 U.S.C. § 2251(a), 18 U.S.C. § 2251(e) and 18 U.S.C. § 2 (Count I) and knowingly possessing and attempting to possess a visual depiction of minors engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252A(a)(5)(B), 18 U.S.C. § 2252A(b)(2) and 18 U.S.C. § 2 (Count II). See Indictment (criminal docket no. 1). On March 5, 2009, the movant filed a motion to suppress certain items that law enforcement seized while searching the movant's home on April 26, 2007. See Motion to Suppress (criminal docket no. 14). On March 20, 2009, United States Chief Magistrate Judge Jon S. Scoles held a hearing on the motion to suppress and reserved ruling. See March 20, 2009 Minute Entry (criminal docket no. 24). On March 23, 2009, the movant filed a motion, pursuant to Federal Rule of Criminal Procedure 12(b)(2), asking the court to rule on whether a mistake-of-age defense was available under 18 U.S.C. § 2251(a) and (e), the underlying statute for Count I, and, if so, that the jury be instructed that a reasonable mistake-of-age was an affirmative defense. See Motion for Ruling (criminal docket no. 26). On that same date, the movant notified the court of his intent to enter a conditional guilty plea pursuant to a plea agreement. See Notice of Intent to Enter Guilty Plea (criminal docket no. 25). In the plea agreement, the movant preserved his right to withdraw his guilty plea if the court were to allow a mistake-of-age defense prior to sentencing and also to contest the court's decision on appeal if it did not allow the mistake-of-age defense. See Plea Agreement (criminal docket no. 33-1) at 1. On March 24, 2009, Judge Scoles filed a Report and Recommendation in which he recommended that the undersigned deny the motion to suppress as moot in light of the movant's intent to enter a guilty plea. See March 24, 2009 Report and Recommendation (criminal docket no. 28). On March 30, 2009, the movant, pursuant to the plea agreement, entered a conditional guilty plea as to Count I of the indictment before Judge Scoles. See March 30, 2009 Minute Entry (criminal docket no. 33). On that same date, Judge Scoles filed a Report and Recommendation in which he recommended that the undersigned accept the movant's conditional guilty plea. See March 30, 2009 Report and Recommendation (criminal docket no. 34). On April 7, 2009, the undersigned adopted Judge Scoles's March 30, 2009 Report and Recommendation, thereby accepting the movant's conditional guilty plea. See April 7, 2009 Order (criminal docket no. 37). On April 22, 2009, the undersigned adopted Judge Scoles's March 24, 2009 Report and Recommendation, thereby denying the movant's motion to suppress. See April 22, 2009 Order (criminal docket no. 39). On May 1, 2009, the undersigned denied the movant's Motion for Ruling to the extent that it requested that a mistake-of-age defense was constitutionally mandated and that it should be included in a jury instruction. See May 1, 2009 Order (criminal docket no. 40).

On September 17, 2009, the movant's counsel filed a sealed motion to withdraw from representing the movant. See Ex Parte Sealed Motion (criminal docket no. 53). On that same date, the court granted counsel's motion and continued the movant's sentencing hearing. See September 17, 2009 Amended Minute Entry (criminal docket no. 54-1). On September 25, 2009, Alfred E. Willett appeared on behalf of the movant, and he represented the movant in the sentencing and appellate proceedings. See Appearance (criminal docket no. 56). On January 28, 2010, the court entered judgment against the movant, sentencing him to 293 months in prison and ten years of supervised release following his term of imprisonment. See Judgment (criminal docket no. 90).

On February 9, 2010, the movant filed a notice of appeal. See Notice of Appeal (criminal docket no. 92). On direct appeal, the movant argued that the court erred by not allowing the movant to present a mistake-of-age defense and that his sentence was procedurally unsound and substantively unreasonable. On November 16, 2010, the Eighth Circuit Court of Appeals rejected the movant's arguments that he was entitled to a mistake-of-age defense and that the court erred in sentencing the movant. See United States v. Heath, 624 F.3d 884, 886, 889 (8th Cir. 2010). On April 25, 2011, the United States Supreme Court denied the movant's petition for a writ of certiorari. See Heath v. United States, 131 S.Ct. 2164, 2164 (2011).

In his 28 U.S.C. § 2255 motion, the movant asserts that he was denied effective assistance of counsel because counsel induced a guilty plea by improper misrepresentation and promises. Specifically, the movant claims his guilty plea was not knowing, intelligent and voluntary because he only pled guilty due to counsel allegedly promising that the movant would only serve the statutory minimum of fifteen years if he pled guilty, that the movant would be sentenced to a term of imprisonment above the statutory maximum if found guilty at trial, that the undersigned would personally assist the movant's counsel in preparing a brief that would convince the Eighth Circuit Court of Appeals to recognize a mistake-of-age-defense and remand the case, and that, once remanded, the movant would be acquitted at trial. Due to the nature of the movant's allegations, the court finds it appropriate to summarize the movant's allegations and counsel's response.

B. The Movant's Allegations

On September 3, 2008, when counsel first met the movant, counsel allegedly told the movant that if the case were brought to federal court, he could "fix these types of problems" and "make all this go away" because he had connections to the undersigned as counsel's father had helped the undersigned get appointed as a federal judge. Allegedly, counsel told the movant that the undersigned "owes everything to my family" and that the undersigned was "in his pocket." Brief in support of the motion (civil docket no. 1-1) at 15-16. The movant asserts that these statements led him to notify his attorney who was representing him on the state court charges, Alfredo Parrish, that counsel was taking over the case. The movant then paid counsel a $20, 000 retainer.

On January 28, 2009, the government filed an indictment in federal court. Over the next few months, counsel met with the movant to discuss trial strategies and allegedly asked the movant for another $25, 000 "to pay the piper, refer[ring] to [the undersigned]." Id. at 16. On February 5, 2009, the movant pled not guilty before Judge Scoles, and between that date and the third week of March 2009, the movant asserts that he reiterated to counsel that he did not want to plead guilty and wanted to prove at trial that the women whom he produced sexually explicit images of had represented that they were not minors.

On March 20, 2009, the same day as the motion in limine hearing before Judge Scoles, the movant claims to have learned that counsel had been talking with the movant's family about a guilty plea. The movant states that he was confused by the change of strategy as he had consistently expressed his desire to go to trial. Counsel then told the movant that the mistake-of-age defense was likely foreclosed by a prior Eighth Circuit Court of Appeals ruling, which would make an acquittal at trial unlikely. The movant claims to have asked counsel about his arrangement with the undersigned and the substantial amount of money he had paid counsel, and the movant states that he insisted on going to trial.

The movant alleges that counsel then "hounded [the movant] to enter into a plea of guilty.... [A]fter a while, [the movant] felt the relentless mental overbearing, it was so overbearing that it overcame the will of [the movant]. It wasn't long before [counsel] began to threaten [the movant]. At one point [counsel] told [the movant] that [the undersigned] was going to sentence him to [thirty] years." Id. at 18-19. The movant states that he asked counsel why he had to plead guilty if the undersigned was "in our corner, " and counsel allegedly stated that the undersigned could not help the movant unless he pled guilty because if the undersigned helped the movant during trial it would look too suspicious. Id. at 19.

The movant states that counsel then threatened him that the undersigned would sentence him to thirty years for Count I and twenty years for Count II if he did not plead guilty. Eventually, counsel allegedly told the movant that he had spoken with the undersigned, who said she would sentence the movant to 200 years if the movant were found guilty at trial. Allegedly, counsel also assured the movant that if he pled guilty, then ten months after his sentencing, the Eighth Circuit Court of Appeals would remand the case to the district court, where the undersigned could then assist the movant in getting an acquittal. The movant also states that counsel promised the movant that the undersigned would assist in drafting the appellate brief upon which the Eighth Circuit Court of Appeals would rule. Counsel allegedly shook the movant's hand and "promised [the movant] that he would be sentenced to a [fifteen-year] sentence and approximately [ten] months later the case would be back before [the undersigned] and [the movant] would be going home after the trial." Id. at 20.

Prior to his guilty plea hearing, the movant states that counsel warned the movant that Judge Scoles would ask if him if he made any deals and that the movant had to do his part and deny that he made any deals with the undersigned. When the movant said that he could not admit something he did not do, counsel allegedly said that if he did not plead guilty or indicated that he made a deal with the undersigned, the movant would get life imprisonment.

In the following months after pleading guilty, counsel communicated with the movant regarding the pre-sentence investigation report ("PSIR") and sentencing. The movant allegedly asked counsel why this all mattered given their agreement with the undersigned. In July 2009, the movant states that counsel met with the movant at the Bremer County jail and asked for $25, 000 in cash, which counsel allegedly said was for the undersigned. The movant states that counsel had already asked the movant's father, Greg Heath, for the $25, 000 prior to the meeting. The movant states that he got into an argument with counsel because the movant had already paid him $45, 000, and the movant refused to pay anything more. Counsel then allegedly yelled at the movant and insisted that there must be more money. The movant states that when he continued to say he would not pay anything else, counsel gave the movant a form to apply for court-appointed counsel and also said he would go to the movant's family for the $25, 000.

On September 17, 2009, Jay Roberts, the Heath family attorney, sent a letter to counsel addressing the financial form that counsel provided to the movant. In the letter, Roberts questioned why counsel was withdrawing from representing the movant so close to sentencing and stated that the decision to withdraw arose "after you told [the movant] you had [the undersigned] in your pocket because your dad got her her judgeship. Unfortunately, there are more than one or two witnesses to what you have said." September 17, 2009 Letter (civil docket no. 1-5) at 1. Roberts went on to say that "[i]t appears to me that what is going on here is that you made a number of promises and elicited a large amount of money... and now you can't live up to your promises." Id.

On that same date, counsel withdrew as the movant's counsel in a proceeding before the court. In his motion to withdraw, counsel cited Iowa Rules of Professional Conduct 32:1.6, 32:3.3 and 32:3.7. See Motion to Withdraw (criminal docket no. 53). Prior to the hearing, counsel allegedly told the movant that he could still "salvage" the ordeal if he received $25, 000 for the undersigned. Brief in support of the motion at 27. The movant states that he refused to pay the money. The undersigned then granted counsel's motion to withdraw at the hearing. See September 17, 2009 Amended Minute Entry. During the hearing, the movant states that he "had the firm belief that it was best to just agree to release [counsel] without making a scene or provoking the court.... [The movant] doesn't know if [counsel] did or did not have an agreement with the court, whether [counsel] was lying to him about the agreement, the money, the appeal or any other guarantees extended by [counsel]. [The movant] regrets not placing this whole ordeal on record before this court." Brief in support of the motion at 27.

A year later, on September 3, 2010, Roberts wrote a letter to Kent A. Simmons, who assisted the movant on appeal, that indicated that counsel stated that "he had Judge Reade in his pocket" in front of Greg Heath; Amy Long, the movant's girlfriend; and John VanHauen, a family friend. September 3, 2010 Letter (civil docket no. 1-6) at 3. Roberts indicated that counsel told him, "I [am] the best deal [the movant] has because I have control of [the undersigned]." Id. Roberts also wrote that counsel at one point said to Greg Heath, Long, VanHauen and possibly others that "I may need [$25, 000] in cash" and if he received it, that this would "all go away." Id.

C. Counsel's Affidavit

Counsel states that when he met the movant on September 3, 2008, he told the movant that he had known the undersigned since law school, that the undersigned had been a partner in his father's former law firm and that the undersigned and his father remained friends. Counsel also states that he discussed with the movant the undersigned's temperament and judicial philosophy, specifically with regard to child pornography cases. Counsel states that he told the movant how he thought legal and factual issues should be presented to the court in light of his knowledge and experience litigating before the undersigned. However, counsel denies that he said anything that could imply to a reasonable person that he had an undue influence ...


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