United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE .
Anthony Wireman has moved to vacate his sentence under 28
U.S.C. § 2255, setting forth a single argument: that his
counsel was ineffective in failing to present evidence of
mitigation. (Dkt. 59, ¶ 12). In light of the record, the
court finds that Wireman's conclusory argument is wholly
without merit, and accordingly denies the motion.
Indictment charged Wireman with five counts of distribution
of child pornography in violation of 18 U.S.C. §
2252(a)(2) and (b)(1) and one count of possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B).
The defendant pled guilty to all six counts. The plea was
free and voluntary. (Dkt. 31, ¶¶ 5, 19, 20, 23,
25). The Presentence Investigation Report determined that
Wireman's presumptive advisory sentence was 210 to 262
months imprisonment, based on a Total Offense Level of 34 and
Criminal History Category of IV. Contrary to his present
argument asserting that counsel was deficient, the defendant
on November 10, 2015 moved for a downward variance which
included evidence of mitigation. (Dkt. 39).
court sentenced the defendant to 240 months imprisonment,
with a 10 year period of supervised release. (Dkt. 41).
appealed his sentence. During the appeal he expressly
indicated he was satisfied with the performance of his trial
attorney, and again cited evidence of mitigation. The Tenth
Circuit affirmed the defendant's sentence and conviction,
explicitly observing during its opinion that trial counsel
for the defendant had argued for a reduced sentence based on
mitigating factors. See United States v. Wireman,
849 F.3d 956, 960 (10th Cir. 2017) (Wireman's sentencing
memorandum “argued ... that his individual
circumstances-including a traumatizing childhood where he was
repeatedly sexually abused by family members and the fact
that in this instance he shared a relatively small amount of
child pornography with only one of his friends-warranted a
indicated above, the defendant repeatedly emphasized in his
request to plead guilty that his decision was free and
voluntary. Further, by careful and detailed colloquy during
the plea hearing, the court ensured that defendant understood
all the charges against him, and that he was freely and
voluntarily pleading guilty. (Dkt. 54, at 10-12). Wireman
understood the effect of his plea, and all the rights he was
waiving. (Id. at 16-19). He understood the potential
sentence. (Id. at 14-15). He pled guilty because he
was guilty, and made his decision freely. (Id. at
defendant having freely and voluntarily pled guilty, the
resulting judgment is not subject to collateral attack.
See United States v. Broce, 488 U.S. 563, 569
(1989); Crow v. United States, 397 F.2d 284, 285
(10th Cir. 1968). The defendant's claim of ineffective
assistance of counsel does not warrant any different result,
since the defendant fails to show either that counsel was
actually deficient in any particular way, or that any
different approach would have yielded a different result.
See Strickland v. Washington, 466 U.S. 668, 687
(1984) (defendant must show both that counsel's deficient
performance was “so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment [and] that counsel's
errors were so serious as to deprive the defendant of a fair
defendant when he pled guilty was satisfied with
counsel's performance. (Dkt. 54, at 9). As noted above,
the defendant's counsel actively argued for a reduced
sentence based on mitigating factors. (Dkt. 49, at 26-35).
Counsel was in no way deficient. Further, no prejudice
resulted to the defendant, as the sentence imposed by the
court was fair and appropriate under all the circumstances of
the case. (Dkt. 49, at 35-40). There is no reasonable
probability that different counsel would have obtained a
better result. See United States v. Ruth, 100 F.3d
111, 113 (10th Cir. 1996).
the fair, appropriate and just sentence, the court hereby
denies the defendant's request for relief. See Hill
v. United States, 368 U.S. 424, 428 (1962) (Section 2255
is a vehicle for relief where defendant shows “a
fundamental defect which inherently results in a complete
miscarriage of justice” or “an omission
inconsistent with the rudimentary demands of fair
procedure”). The record before the court establishes
that defendant is not entitled to the requested relief.
addition, the court will not issue a certificate of
appealability under 28 U.S.C. § 2253(c)(1)(B). Such a
certificate may be granted only if defendant makes a
substantial showing of denial of a constitutional right or
raises an issue that is debatable among jurists of reason or
deserving of further proceedings. As noted above, the record
shows conclusively that the defendant is not entitled to the
relief sought. The court also denies defendant's request
for appointment of counsel (Dkt. 61), finding that the
defendant's underlying argument lacks merit, and
appointment of counsel could yield no different result.
ACCORDINGLY ORDERED this 12th day of October,
2017, that defendant's Motion to Proceed In Forma
Pauperis (Dkt. 60) is granted; his Motions to Vacate (Dkt.
59) and for Appointment of Counsel ...