United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Joseph F. Bataillon, Senior United States District Judge
This matter is before the court after an evidentiary hearing on September 24, 2015, on defendant's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Filing No. 71. In his § 2255 motion, Bohlen contends that his counsel "was ineffective when he caused mentally challenged Petitioner [to accept] a plea deal on changes of receipt of child pornography instead of possession of child pornography thereby exposing Petitioner to a mandatory minimum sentence" and "counsel did not preserve the issues for appeal nor did he allow an appeal to go forth."
The record shows that Christopher Bohlen was charged with two counts of child pornography on January 23, 2013. Filing No. 1, Indictment. Count I charged that Bohlen knowingly received digital and computer images depicting a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252A(a)(2). Id. Count II charged that Bohlen knowingly possessed one or more images of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Id. Bohlen appeared before the Honorable F. A. Gossett, United States Magistrate Judge, on January 30, 2013, and entered a plea of not guilty. Filing No. 11, text minute entry.
On March 6, 2013, he filed a Motion to Suppress Evidence and Statements. Filing No. 28. An evidentiary hearing was held on April 16, 2013. Filing No. 40, Suppression Hearing Transcript ("Suppression H'rg Tr."). At the conclusion of the hearing, the magistrate judge found United States Postal Inspector Linda Jensen to be a credible witness. Id. at 63. The magistrate judge determined Bohlen was not in custody during a “knock and talk” conducted at Bohlen’s residence. Id. at 68. He found the statements given by Bohlen during the encounter were “free, voluntarily, knowingly, and intelligently made” and recommended that the district court deny Bohlen’s Motion to Suppress Id. at 70-72; Filing No. 38, Findings and Recommendation ("F&R"). Bohlen objected to the F&R, but his objection was overruled and the court adopted the magistrate judge’s F&R. Filing No. 43, Objection; Filing No. 45, Memorandum and Order.
Thereafter, Bohlen appeared before the undersigned and pleaded guilty to both counts of the Indictment without a plea agreement. Filing No. 50, text minute entry; Filing No. 77, Change of Plea Transcript ("Plea Hr'g Tr."). At the change of plea hearing, the court engaged in a lengthy colloquy with Bohlen to make sure he was mentally capable of making the decision to change his plea. Id. at 2-7. The court inquired if Bohlen was taking any medication at the time, and Bohlen and defense counsel advised that Bohlen was then taking medication for his thyroid condition, his blood pressure, his arthritis, a muscle relaxer, and for sleeping. Id. at 4-5. Bohlen stated he had had enough time to discuss his guilty plea with his lawyer and that he was thinking clearly enough to enter his guilty plea. Id. at 6-7.
The court advised Bohlen that by pleading guilty he was admitting he committed the two offenses and was also “giving up [his] right to challenge the lawfulness of any evidence the government [had] about [his] guilt.” Id. at 15. Bohlen then asked to confer with defense counsel. Id. After conferring, defense counsel explained to the court that Bohlen disagreed with the outcome of his motion to suppress. Id. Defense counsel explained,
Judge, I can . . . tell you what a bit of the problem is. We did have a motion to suppress in this case. A lot of it came down to the credibility of the officers and my client doesn't agree with that and that's something that's-kind of still sticks. And I’ve explained to [Bohlen] the difference, that that’s not a trial issue, and that if I thought there was something there that had a chance of winning on appeal that I would-we would handle the plea differently in order to make sure that right remained, but that’s- that’s his biggest problem.
Id. at 15-16. The court directly asked Bohlen if he understood that by pleading guilty he was “giv[ing] up any challenge that [he had] about the way the investigators took evidence, ” to which Bohlen stated, “Yes, sir.” Id.
The court found Bohlen was competent to enter a plea of guilty, found that he Bohlen willingly, voluntarily, knowingly and intelligently waived his rights; and that he "fully underst[ood] the consequences of waiving his rights.” Id. at 17. Defendant was sentenced on January 3, 2014, to 60 months incarceration as to Count I and a year and a day as to Count II to be served concurrently. Filing No. 75, Transcript of Sentencing proceedings ("Sent. Tr.") at 22-23; Filing No. 63, Judgment at 2. Bohlen was allowed to self-surrender. Filing No. 75, Sent. Tr. at 26.
The court specifically advised the defendant of his right to appeal and told the defendant he had 14 days to do so. Filing No. 75, Sent. Tr. at 25-26. Bohlen was directed to talk to defense counsel Shannon O'Connor if he wanted to appeal and was informed that if he did not have enough money to pay for a lawyer or the cost of the appeal, he should talk to Mr. O'Connor, who would get the paperwork together. Id.
Bohlen later timely filed this motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Filing No. 71. The court set a hearing on the motion, pursuant to Franco v. United States, 762 F.3d 761, 765 (8th Cir.2014). (stating that when a district court receives conflicting statements-one from a § 2255 petitioner and one from her former counsel-the court cannot “mak[e] a factual determination based on the relative credibility of [these individuals] without the benefit of an evidentiary hearing.”)
An evidentiary hearing on Bohlen's § 2255 motion was held on September 24, 2015. The defendant appeared telephonically and was represented by appointed counsel, Matthew M. Munderloh. Bohlen testified that he understood before entering his plea and before his sentencing that his sentence would likely be the mandatory minimum sentence of five years. He stated that he thought that after sentencing he told his counsel, federal public defender Shannon P. O'Connor, to call him when the judge signed the papers just to see if Bohlen wanted to file an appeal. He acknowledged that he did not tell Mr. O'Connor that he wanted to appeal. He also testified that he did not tell O'Connor not to file an appeal.
He stated that Mr. O'Connor did not discuss with him the possibility of filing a conditional plea agreement, under which he could preserve his right to appeal the denial of his motion to suppress. He also testified that if he had been told he could file a conditional appeal, he would have done so. He testified that O'Connor told him five years was the best sentence he could get and the government was not going to offer him anything less. He did not ...