Slayman v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CHRISTINE ALYCE SLAYMAN,

Petitioner,

v. Case No.: 3:20-cv-434-TJC-PDB

3:18-cr-44-TJC-PDB

UNITED STATES OF AMERICA,

Respondent.

ORDER

Petitioner Christine Alyce Slayman, through counsel, moves under 28

U.S.C. § 2255 to vacate her convictions and sentence for two counts of producing

child pornography. (Civ. Doc. 1, § 2255 Motion; see also Civ. Doc. 1-1,

Memorandum.)1 She pleaded guilty to both offenses in 2018 and was sentenced

to 480 months’ imprisonment. Petitioner challenges her convictions and

sentence based on the alleged ineffective assistance of counsel. The United

States responded in opposition. (Civ. Doc. 5, Response.) Petitioner did not reply,

although she was granted leave to do so. (See Civ. Doc. 4, Briefing Order.) Thus,

the case is now ripe for review.

1 “Civ. Doc. #” refers to docket entries in the § 2255 case, No. 3:20-cv-434-TJC-PDB.

“Crim. Doc. #” refers to docket entries in the criminal case, No. 3:18-cr-44-TJC-PDB. Unless

otherwise noted, page numbers refer to the number designated by CM/ECF.

Under Rule 8(a) of the Rules Governing Section 2255 Proceedings, the

Court has determined that an evidentiary hearing is unnecessary to decide the

matter. No evidentiary hearing is required because Petitioner’s allegations are

affirmatively contradicted by the record, patently frivolous, or would not entitle

her to relief even if the facts she alleges are assumed to be true. See Rosin v.

United States, 786 F.3d 873, 877 (11th Cir. 2015).

I. Background

On February 25, 2018, the Jacksonville Sheriff’s Office (“JSO”) received a

tip from a concerned informant about a USB thumb drive in Petitioner’s

residence, which reportedly contained video files of Petitioner engaged in sexual

acts with her prepubescent son, C.A. (Crim. Doc. 39, Presentence Investigation

Report [PSR] ¶ 16.)2 The informant, who babysat for C.A., recognized Petitioner

and C.A. as the individuals depicted in the videos. (Id.) The informant created

a copy of the video files, returned the thumb drive to where she found it, and

gave a copy of the files to JSO. (Id.)

JSO officers executed a search warrant the next day. (Id. ¶ 17.) While

executing the warrant, officers located a 16 gigabyte USB thumb drive in

Petitioner’s bathroom vanity, where the informant advised she had found and

returned the thumb drive. Id. The Department of Homeland Security

2 Petitioner did not object to the facts in the PSR. (See Crim. Doc. 41, Sentencing

Memorandum; Crim. Doc. 64, Sentencing Transcript Vol. I at 6.)

forensically examined the thumb drive and found that it contained eighteen

videos depicting Petitioner engaged in sexual acts with C.A., who was six years

old when the recordings were made. (Id. ¶ 18.) The videos depicted Petitioner

and C.A. nude while Petitioner directed C.A. to use sex toys on her. (Id. ¶ 19;

see also Crim. Doc. 33, Plea Agreement at 22–23.) In some videos, Petitioner

held the recording device herself, and in others the recording device was placed

in a stationary position. (PSR ¶ 18.) The files’ metadata reflected that the videos

were produced near King William, Virginia (where Petitioner and her son used

to live) using an Apple iPhone 6. (Id.)

During later interviews with law enforcement, Petitioner admitted that

she produced the videos with C.A. at her residence in King William, Virginia,

when they lived there in 2015. (Id. ¶ 20.) Petitioner said that her then-

boyfriend, Kevin Hight, asked her to produce the videos, and that she sent him

copies of the videos from her iPhone for his consumption. (Id.) Petitioner stated

that she deleted the videos from her phone about a month after creating them

and later got a new iPhone. (Id.) According to Petitioner, Hight copied the files

onto the thumb drive, and the last time she had seen the thumb drive in her

Jacksonville, Florida apartment was in March or April 2017. (Id.)

Petitioner was arrested on February 28, 2018, and shortly afterward, a

federal grand jury indicted her on one count of possession of child pornography.

(Crim. Doc. 9, Indictment.) Assisted by privately retained counsel, Dale Carson,

Petitioner pleaded not guilty to the charge. (Crim. Doc. 12, Minute Entry of

Arraignment.) A United States Magistrate Judge ordered that Petitioner be

detained pending trial (Crim. Doc. 15), and later determined that Petitioner

was competent to stand trial (Crim. Doc. 24, Order Finding Petitioner

Competent; Crim. Doc. 23, Stipulation Regarding Competency).

On August 29, 2018, the United States filed a superseding information

charging Petitioner with two counts of producing child pornography. (Crim.

Doc. 28, Superseding Information.) The next day, Petitioner executed a waiver

of indictment in open court (Crim. Doc. 31) and pleaded guilty to both charges

under a written plea agreement (see generally Crim. Doc. 33, Plea Agreement;

Crim. Doc. 63, Plea Transcript). The Magistrate Judge who presided over the

plea colloquy recommended:

After cautioning her and examining her under oath concerning each Rule

11 matter, I found that her pleas were intelligently, knowingly, and

voluntarily made, and that the facts that she admitted establish the

elements of the charged offenses. I therefore recommend that the Court

accept her pleas and adjudicate her guilty of counts one and two of the

superseding information.

(Crim. Doc. 35, Report and Recommendation Concerning Guilty Pleas at 1.)

Without objection, the Court accepted Petitioner’s guilty pleas and adjudicated

her guilty of the two counts in the Superseding Information. (Crim. Doc. 37.)

According to a Presentence Investigation Report, Petitioner’s advisory

sentencing guidelines range was life imprisonment, based on a total offense

level of 46 (which maxed out at 43 under U.S.S.G. § 5A) and a Criminal History

Category of I. (PSR ¶¶ 50–53, 57, 94.) Because the total statutory maximum

sentence was 60 years (720 months) in prison, that became her guidelines

range. (Id. ¶ 94.) Neither party objected to the PSR or the guidelines calculation,

which the Court adopted. (Crim. Doc. 64, Sentencing Transcript Vol. I at 6;

Crim. Doc. 65, Sentencing Transcript Vol. II at 3–4.)

Petitioner, through counsel, urged the Court to impose the mandatory

minimum sentence of 15 years’ imprisonment, concurrent for both counts. (See

Crim. Doc. 41, Sentencing Memorandum; Crim. Doc. 64 at 92–102.) Petitioner

argued that her conduct stemmed from her relationship with Hight, who

allegedly pressured her to create the videos involving C.A. and then used

existing videos to blackmail her into creating more. (Crim. Doc. 41 at 1–2; Crim.

Doc. 64 at 103–10 (Petitioner’s statement in allocution).) Defense counsel

pointed to Petitioner’s history of depression and low self-esteem, her prompt

cooperation with law enforcement, her acceptance of responsibility, and her

remorse as mitigating factors. (See generally Crim. Doc. 41.) At sentencing,

Petitioner also presented statements and testimony from three witnesses: her

mother, Kathleen Slayman (Crim. Doc. 64 at 41–56); her aunt, Kimberly Mills

(id. at 57–65); and a psychologist who evaluated her, Dr. Harry Krop (id. at 66–

90). The witnesses described the collapse of Petitioner’s relationship with her

father at a young age as a traumatic event that may have propelled her to seek

the attention and approval of men. That event purportedly explained why she

created the videos, which were allegedly part of an effort to please Hight.

Petitioner’s mother and aunt also stated that, except for the criminal conduct

and Petitioner’s relationship with Hight, she was a loving mother who provided

for C.A.

The government urged the Court to impose the guideline sentence of 60

years in prison, citing the egregious facts of the crime. (Id. at 6–37.) The

government countered Petitioner’s argument that Hight compelled her to create

the videos involving C.A., pointing out that Hight lived several states away, and

Petitioner had known him for only about a month, when she started creating

the videos. (Id. at 10, 27.) The government also introduced other evidence to

counter Petitioner’s attempt to pin the blame on Hight. The government

introduced text messages sent by Petitioner to a man named “Josh,” in which

she referenced committing incest with her son, suggested that she derived

pleasure from it, and suggested that she hoped to commit incest with C.A. as he

grew older. (See id. at 34–36, 37 (discussing Government’s Sealed Exhibit 8).)

And, the government argued, the videos showed that Petitioner directed C.A.’s

activities, she seemed to enjoy herself, and the videos showed no signs of her

being coerced. (Id. at 10–13.) The government also pointed out that the thumb

drive containing the videos was found in Petitioner’s bathroom vanity, near her

makeup, six months after Hight had moved out of the apartment. (Id. at 25–26;

see also Gov’t Sentencing Exs. 4, 5.)

The Court ultimately sentenced Petitioner to a term of 480 months’

imprisonment, consisting of 300 months as to Count One and a consecutive term

of 180 months as to Count Two. (Crim. Doc. 65 at 19; Crim. Doc. 46, Judgment.)

Describing the case as “one of the more disturbing cases” it had seen in over 20

years, the Court cited the nature and circumstances of the offense, as well as

the need to reflect the seriousness of the offense, provide just punishment,

afford adequate deterrence, and protect the public, as justifying a lengthy

prison term. (Crim. Doc. 65 at 4–19.) The Court rejected Petitioner’s argument

that Hight pressured her to make the illicit videos, noting that Hight lived

hundreds of miles away when she started creating them. (Id. at 8–10.) The

Court also observed that Petitioner sent text messages reflecting that she

derived pleasure from sexually abusing C.A., she repeatedly chose to violate

C.A. by creating eighteen videos, and that “ultimately there’s insufficient

evidence of coercion, either physical or emotional, to shift responsibility from

Ms. Slayman’s criminal acts.” (Id. at 9–10.) But the Court noted that Petitioner

lacked any criminal history, was affected by domestic issues as a child (which

may have included sexual abuse), had a longstanding history of depression, had

tried to provide a good home for her son, and pleaded guilty. (Id. at 10–11, 12,

14.) Thus, the Court imposed a term of imprisonment that was 20 years below

the guidelines sentence of 60 years in prison. The United States objected to the

sentence, but Petitioner did not. (Id. at 23.)

Petitioner filed a notice of appeal. Her appellate attorney moved to

withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967). After

an independent examination of the record, the Eleventh Circuit found “no

arguable issues of merit” and affirmed Petitioner’s convictions and sentences.

United States v. Slayman, 788 F. App’x 708, 708 (11th Cir. 2019).

Petitioner did not seek certiorari review from the Supreme Court. These

§ 2255 proceedings timely followed.

II. Discussion

Under 28 U.S.C. § 2255, a person in federal custody may move to vacate,

set aside, or correct his sentence. Section 2255 authorizes a district court to

grant relief on four grounds: (1) the sentence was imposed in violation of the

Constitution or laws of the United States; (2) the court lacked jurisdiction to

impose the sentence; (3) the sentence exceeds the maximum authorized by law;

or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C § 2255(a).

Only jurisdictional claims, constitutional claims, and claims of error that are so

fundamental as to cause a complete miscarriage of justice will warrant relief

through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86

(1979); Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc).

A § 2255 movant “bears the burden to prove the claims in his § 2255

motion.” Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015); see also

Beeman v. United States, 871 F.3d 1215, 1221–23 (11th Cir. 2017). If “the

evidence does not clearly explain what happened … the party with the burden

loses.” Beeman, 871 F.3d at 1225 (internal quotation marks and citation

omitted). A § 2255 movant will not be entitled to relief, or an evidentiary

hearing, “when [her] claims are merely ‘conclusory allegations unsupported by

specifics’ or ‘contentions that in the face of the record are wholly incredible.’”

Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (citation omitted).

“[A] collateral attack is the preferred vehicle for an ineffective-assistance

claim.” United States v. Padgett, 917 F.3d 1312, 1318 (11th Cir. 2019). To

establish ineffective assistance of counsel, a § 2255 petitioner must show both:

(1) that her counsel’s performance was constitutionally deficient, and (2) that

counsel’s deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687 (1984); Martin v. United States, 949 F.3d 662,

667 (11th Cir. 2020). In determining whether counsel was deficient, “[t]he

standard for effective assistance of counsel is reasonableness, not perfection.”

Brewster v. Hetzel, 913 F.3d 1042, 1056 (11th Cir. 2019) (citing Strickland, 466

U.S. at 687). “In the light of the ‘strong presumption’ that counsel's actions [fell]

within the wide range of constitutionally adequate assistance, a movant ‘must

establish that no competent counsel would have taken the [challenged] action.’”

Khan v. United States, 928 F.3d 1264, 1272 (11th Cir. 2019) (quoting Chandler

v. United States, 218 F.3d 1305, 1314-15 (11th Cir. 2000) (en banc)). To

establish prejudice, the petitioner must show a reasonable likelihood that the

result of the proceeding would have been different but for counsel’s error.

Martin, 949 F.3d at 667 (citing Padilla v. Kentucky, 559 U.S. 356, 366 (2010)).

The Court considers the totality of the evidence in determining whether a

petitioner has established deficient performance and prejudice. Strickland, 466

U.S. at 695. However, because both prongs are necessary, “there is no reason

for a court… to approach the inquiry in the same order or even to address both

components of the inquiry if the defendant makes an insufficient showing on

one.” Id. at 697.

A. First Ground: Counsel’s advice to sit for a pre-plea interview

Before she pleaded guilty, Petitioner gave an interview to law

enforcement in which she admitted she had produced pornographic videos with

C.A. at her residence in King William, Virginia, in 2015. (See PSR ¶ 20.)

Investigators already knew this because they had examined the video files and

metadata on the thumb drive that was retrieved from her residence. (See id. ¶¶

18–19.) Petitioner also told investigators that she made the videos at the

request of her ex-boyfriend, Kevin Hight, and that Hight copied the files onto

the thumb drive. (Id. ¶ 20.)

Petitioner alleges that her attorney gave ineffective assistance because

he advised her to give the interview without first securing some type of

agreement to ensure she benefited from her cooperation. (See Civ. Doc. 1 at 5;

Civ. Doc. 1-1 at 8–10.) According to Petitioner,

Counsel set up the proffer with the government and advised [Petitioner]

to be honest to reduce the severity of her charges. Based on counsel’s

erroneous advice, [Petitioner] believed she would receive a 5K1.1

reduction for her cooperation with [the] government at the proffer. What

trial counsel had failed to do beforehand was negotiate any sort of

preliminary agreement with the government to that extent. Instead,

[Petitioner] was left with an admission on record only to be told later that

a 5K1.1 reduction was unavailable to her, regardless of her cooperation

with the government. Trial counsel grossly mischaracterized the

proceeding. The government, for its part, denied that the meeting in

which [Petitioner] provided further information about her own case and

others, including Hight, was never [sic] intended as a proffer.

(Id. at 9 (internal citations omitted); see also Civ. Doc. 1-8, Petitioner’s Affidavit,

p. 2.)3 Petitioner says she was left without “any benefit or protection due to

counsel’s failure to negotiate a reciprocal agreement with the government for

what only he had incorrectly deemed a ‘proffer.’” (Civ. Doc. 1-1 at 10.) Petitioner

alleges that she was prejudiced “because but for counsel’s poor advice to offer

information to the government without any sort of reciprocal benefit or

collateral agreement, [Petitioner] would never have cooperated with the

government to the extent she did, forcing her to make a plea.” (Id.) Thus,

Petitioner claims she would not have pleaded guilty but for counsel’s advice to

give the interview.

1. Effect on Petitioner’s guilty pleas

“Defendants have a Sixth Amendment right to counsel, a right that

extends to the plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162

3 Citations to Petitioner’s Affidavit refer to the page number in the lower righthand

corner.

(2012). So, “[d]uring plea negotiations defendants are ‘entitled to the effective

assistance of competent counsel.’” Id. (quoting McMann v. Richardson, 397 U.S.

759, 771 (1970)). Strickland’s two-part framework “applies to challenges to

guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474

U.S. 52, 57 (1985). First, a petitioner “must show that counsel’s representation

fell below an objective standard of reasonableness.” Id. at 57 (internal quotation

marks and citation omitted). Second, in the context of a guilty plea, a petitioner

“can show prejudice only if ‘there is a reasonable probability that, but for

counsel’s errors, [s]he would not have pleaded guilty and would have insisted

on going to trial.’” Winthrop-Redin v. United States, 767 F.3d 1210, 1219 (11th

Cir. 2014) (quoting Hill, 474 U.S. at 59). The Supreme Court warns that

“[c]ourts should not upset a plea solely because of post hoc assertions from a

defendant about how [s]he would have pleaded but for [her] attorney’s

deficiencies.” Lee v. United States, 137 S. Ct. 1958, 1967 (2017). Instead, judges

should “look to contemporaneous evidence to substantiate a defendant’s

expressed preferences.” Id.; see also Diaz v. United States, 930 F.2d 832, 835

(11th Cir. 1991) (“[A]fter the fact testimony concerning [a defendant’s] desire to

plead, without more, is insufficient to establish that but for counsel’s alleged

advice or inaction” a defendant would have accepted or rejected a plea).

To the extent Petitioner alleges that counsel was ineffective for not

securing a cooperation agreement before she interviewed with law enforcement,

that by itself would not necessarily establish deficient performance. United

States v. Pina, No. 1:17-cr-08, 2017 WL 3667661, at *3 (W.D. Mich. Aug. 23,

2017) (rejecting claim that defense attorney was ineffective for advising

defendant to make a statement to police without a proffer agreement). But

Petitioner also alleges that “counsel grossly mischaracterized the [pre-plea

interview]” and led her to “believe[ ] she would receive a 5K1.1 reduction for her

cooperation with [the] government at the proffer,” even though counsel had

secured no such promise from the government. (Civ. Doc. 1-1 at 9.) If counsel

misinformed Petitioner about the nature of the pre-plea interview or promised

that she would receive a substantial assistance reduction for her cooperation,

such advice would “f[a]ll below an objective standard of reasonableness.” Hill,

474 U.S. at 57 (quoting Strickland, 466 U.S. at 687–88). But even if counsel

performed deficiently, Petitioner must show “a reasonable probability that, but

for counsel’s errors, [s]he would not have pleaded guilty and would have insisted

on going to trial.” Id. at 59.

Petitioner alleges that she was prejudiced “because but for counsel’s poor

advice to offer information to the government without any sort of reciprocal

benefit or collateral agreement, [Petitioner] would never have cooperated with

the government to the extent she did, forcing her to make a plea.” (Civ. Doc. 1-

1 at 10.) But Petitioner does not flesh out this conclusory allegation. She does

not explain how or why her cooperation with the government “forc[ed] her to

make a plea.” As the government observes, “all of the evidence of the offenses

of conviction,” including the facts supporting her guilty pleas, were “gathered

separate[ly] … from any statements by [Petitioner]. Ultimately, [Petitioner]

filmed herself committing the crime. No statements by [Petitioner] were

necessary to secure a conviction.” (Civ. Doc. 5 at 12; see also Crim. Doc. 33 at

22–23 (factual basis)). Petitioner’s affidavit, while leveling several complaints

against counsel (some of which are not tied to any claim in the § 2255 Motion),

also fails to address how counsel’s advice about the proffer “forc[ed]” her to plead

guilty. (See Civ. Doc. 1-8.) And Petitioner does not point to any

“contemporaneous evidence to substantiate” her post hoc assertion that she

would not have pleaded guilty but for counsel’s advice to give the pre-plea

interview. Lee, 137 S. Ct. at 1967. Petitioner’s conclusory allegation that

counsel’s advice to cooperate forced her to plead guilty is not enough to warrant

relief from her guilty plea. See Tejada, 941 F.2d at 1559.4

The record also refutes Petitioner’s allegation that counsel’s advice to

cooperate forced her into a guilty plea. When Petitioner pleaded guilty, she

already knew she had given an unconditional pre-plea interview and that she

4 Petitioner’s conclusory claim of prejudice is especially problematic because she alleges

that, if not for counsel’s advice, she would not have cooperated with the government “to the

extent she did.” That implies she would have cooperated with the government anyway, only

to a lesser extent. But Petitioner does not describe the difference between how much

cooperation she did offer and how much cooperation she would have offered no matter her

attorney’s advice. As a result, Petitioner makes it impossible to measure the effect of counsel’s

advice on the extent of her cooperation, and thus on her decision to plead guilty.

was not guaranteed a substantial assistance reduction for her cooperation. At

the change-of-plea hearing, Petitioner stated under oath that she had read and

understood every part of the Plea Agreement, including the cooperation

provision (Crim. Doc. 63 at 7, 33–34, 36), that she pleaded guilty knowingly,

voluntarily, and free of any form of coercion, (id. at 42–44), and that she was

satisfied with her attorney, with whom she had discussed the case (id. at 43–

44). The Plea Agreement included a section on cooperation, under which the

government promised to consider––within its sole discretion––whether

Petitioner’s cooperation qualified as substantial assistance to warrant a motion

for a downward departure or a below-mandatory minimum sentence under 18

U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. (Crim. Doc. 33 at 7–8.) Petitioner

affirmed that she understood this provision, including the government’s total

discretion to decide whether to file a substantial assistance motion. (Crim. Doc.

63 at 29–30, 36.) And she affirmed nobody had promised her anything outside

the Plea Agreement. (Id. at 42–43; see also Crim. Doc. 33 at 18–19.) All the

same, Petitioner reaffirmed it was her desire to plead guilty. (Crim. Doc. 63 at

44–46.) Petitioner voiced no complaint about the voluntariness of her plea,

counsel’s advice to sit for the pre-plea interview, or the Plea Agreement’s

cooperation provision.

When “a defendant makes statements under oath at a plea colloquy,” as

Petitioner did, she “bears a heavy burden to show [her] statements were false.”

United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). That is because

“[m]ore often than not a prisoner has everything to gain and nothing to lose

from filing a collateral attack upon [her] guilty plea.” Blackledge v. Allison, 431

U.S. 63, 71 (1977). Thus, “[s]olemn declarations in open court carry a strong

presumption of verity,” id. at 74, and “the representations of the defendant,

[her] lawyer, and the prosecutor at [a plea] hearing, as well as any findings

made by the judge accepting the plea, constitute a formidable barrier in any

subsequent collateral proceedings,” id. at 73–74. “The subsequent presentation

of conclusory allegations unsupported by specifics is subject to summary

dismissal, as are contentions that in the face of the record are wholly

incredible.” Id. at 74; see Winthrop-Redin, 767 F.3d at 1216–20. Petitioner’s

conclusory and factually unsupported allegation that she was forced to plead

guilty because of counsel’s advice to sit for the pre-plea interview is not enough

to overcome her sworn statements at the change-of-plea colloquy.5

5 While a defendant usually “will not be heard to refute [her] testimony given under oath

when pleading guilty,” “where the defendant offers specific factual allegations supported by

the affidavit of a reliable third person, [s]he is entitled to a hearing on [her] allegations.”

United States v. Sanderson, 595 F.2d 1021, 1021 (5th Cir. 1979) (internal citations and

footnote omitted); see also Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir.

1981) (en banc) (adopting decisions of the former Fifth Circuit issued before the close of

business on September 30, 1981, as binding in the Eleventh Circuit). That is not the case here.

Petitioner tenders only her own conclusory and self-serving allegations and affidavit to

counter her directly inconsistent former testimony. This is not enough to overcome the strong

presumption that her sworn statements at the plea colloquy were true. See Winthrop-Redin,

767 F.3d at 1217.

Beyond the change-of-plea colloquy itself, the sentencing record also

sheds light on why Petitioner pleaded guilty, contradicting her current

allegations. At sentencing, the prosecutor said “[w]e could have chosen to

proceed with charging her [with] 18 counts, each of which carried … a 30-year

statutory maximum,” but instead “[w]e chose to charge her with two. And she

was fully informed that I would be requesting a 60-year term of imprisonment,

which is running each of those consecutive.” (Crim. Doc. 64 at 36.) Petitioner’s

counsel then said:

We are here today in large measure because the potential penalty

of going to trial is so significant were it not for a reasonable prosecutor,

someone who understands the dynamic––and, believe me, 60 years is a

long time to spend in custody.

I will tell you that we couldn’t go to trial. The Government has the

ability, as you full well know, to show the actual videotape of the

molestation of the child to the jury. I don’t know in any other

circumstance where the court would allow, in a narcotics trial, the

opportunity for the jurors to actually sample the narcotics to see whether

or not it was really real.

I mean, child pornography is criminal. The possession, the

showing of it is criminal. Yet here we’re in the position where we have to

take a plea. So the courts can never address this. By taking a plea, as you

full well know, we can’t appeal anything, we’re just stuck where we are.

(Id. at 95.) Counsel later clarified that he did not mean Petitioner was “forced”

to plead guilty in some way. (Id. at 111.) Petitioner was present for all these

remarks and never contradicted them. The prosecutor’s and defense counsel’s

unrebutted comments suggest that Petitioner’s decision to plead guilty followed

from (1) the risk that the government could bring up to eighteen charges against

her if the case went to trial, (2) the opportunity for Petitioner to avoid the

sentencing exposure of additional charges, and (3) the potency of the

government’s evidence, which included the ability to show a jury the videos in

which Petitioner recorded herself sexually abusing her six-year-old son.

Thus, the record refutes Petitioner’s allegation that counsel’s advice to sit

for the pre-plea interview “force[d]” her into a guilty plea. Petitioner fails to

show a reasonable probability that, but for counsel’s advice to give the pre-plea

interview, she would not have pleaded guilty and would have gone to trial. Hill,

474 U.S. at 59. Relief on this claim will be denied.

2. Effect on Petitioner’s sentence

Petitioner alleges that her attorney deviated from standard practice and

performed deficiently by advising her to sit for a pre-plea interview without first

securing a “reciprocal agreement” that would have ensured Petitioner benefited

from her cooperation. (Civ. Doc. 1-1 at 8–9.) Petitioner says that after she

interviewed with the government, she was “bereft of any benefit or protection

due to counsel’s failure to negotiate a reciprocal agreement with the government

for what only he had incorrectly deemed a ‘proffer.’” (Id. at 10.) Later, Petitioner

learned “that a 5K1.1 reduction was unavailable to her, regardless of her

cooperation with the government.” (Id. at 9.) The Court construes these

allegations as asserting that Petitioner would have obtained a lower sentence

or a substantial assistance reduction if not for counsel’s failure to negotiate a

“reciprocal agreement” before Petitioner cooperated.

It is neither unheard of nor inherently deficient for an attorney to advise

a defendant to cooperate with law enforcement without securing a “reciprocal

agreement” beforehand. See, e.g., Pina, 2017 WL 3667661, at *3. And even if

counsel deviated from standard practice by advising Petitioner to cooperate

without a preliminary agreement, that would not, by itself, show that counsel’s

performance fell outside the wide range of professionally reasonable assistance.

See Chandler v. United States, 218 F.3d 1305, 1317 (11th Cir. 2000) (en banc)

(“No absolute rules dictate what is reasonable performance for lawyers.” (citing

Strickland, 466 U.S. at 688)). If Petitioner did not intend to go to trial (which

defense counsel’s remarks at sentencing suggest was the case (see Crim. Doc.

64 at 95)), a reasonable attorney could have advised Petitioner to interview with

the government before negotiating a plea deal or cooperation agreement.

Counsel could have reasonably believed that (1) providing early and timely

information was Petitioner’s best chance to earn a motion for a substantial

assistance reduction, (2) the government might offer a more favorable plea

agreement if Petitioner provided early and timely information first, and (3) at

the least, cooperating with the government early on would weigh in Petitioner’s

favor when the Court considered the § 3553(a) factors at sentencing. See

Chandler, 218 F.3d at 1315 (because “[t]he reasonableness of a counsel’s

performance is an objective inquiry,” an ineffective assistance claim fails if a

court can conceive of reasonable strategic motives for counsel’s actions (citing

Darden v. Wainwright, 477 U.S. 168, 186 (1986); United States v. Fortson, 194

F.3d 730, 736 (6th Cir. 1999))). Although Petitioner did not earn a substantial

assistance reduction, “the fact that a particular [strategy] ultimately proved to

be unsuccessful [does not] demonstrate ineffectiveness.” Id. at 1314.

In any event, Petitioner fails to establish prejudice. Even if counsel should

have tried to secure a “reciprocal agreement” before Petitioner gave the

interview, Petitioner does not allege facts showing a reasonable probability that

her ultimate sentence would have been lower. See Strickland, 466 U.S. at 694.

Petitioner points to nothing showing that her attorney could have secured a

more favorable cooperation agreement than the one she obtained under her Plea

Agreement. Nor does Petitioner point to anything supporting a conclusion that,

even if counsel had secured a cooperation agreement before the interview, the

government would have considered the information she gave worthy of a

substantial assistance reduction. Because speculative and unsupported

generalizations are not enough to warrant habeas relief, relief on this claim will

be denied. See Tejada, 941 F.2d at 1559

B. Second Ground: Counsel’s promise of a 15-year sentence

Petitioner alleges that her attorney gave ineffective assistance by

promising her she would receive a guaranteed sentence if she pleaded guilty.

(Civ. Doc. 1-1 at 10–12.) According to Petitioner, “counsel insisted that

[Petitioner] would not receive a greater sentence than fifteen years if she

entered a plea. In fact, counsel guaranteed [Petitioner] that if she pled, her

maximum sentence would be fifteen years.” (Id. at 11 (internal citations

omitted); see also Civ. Doc. 1-8, pp. 1, 2.) Petitioner alleges that she “had

discussed her defenses with counsel and was prepared to argue battered woman

syndrome, low self-esteem, and mental instability at trial.” (Civ. Doc. 1-1 at 12.)

“However, counsel’s insistence that trial would result in a higher sentence than

the guaranteed fifteen-year sentence she would receive if she pleaded guilty led

[Petitioner] to believe entering a plea to forgo trial was her best option.” (Id.)

Thus, Petitioner asserts that but for counsel’s erroneous advice, she “would

have insisted on trial.” (Id.)

The record contradicts these allegations. The Plea Agreement warned

Petitioner she could be sentenced to up to 60 years in prison and contained no

promise that she would receive a particular sentence. (Crim. Doc. 33 at 3.) The

agreement included a merger clause that stated, “This plea agreement

constitutes the entire agreement between the government and the defendant

with respect to the aforementioned guilty plea and no other promises,

agreements, or representations exist or have been made to the defendant or

defendant’s attorney with regard to such guilty plea.” (Id. at 18–19.) Petitioner

initialed each page and signed the Plea Agreement, which was also signed by

Petitioner’s attorney and two Assistant United States Attorneys. (Id. at 19.)

Then, during the change-of-plea colloquy, Petitioner denied under oath

that anybody (including her attorney) had promised her a specific sentence in

exchange for her guilty plea:

THE COURT: Are you pleading guilty because you are guilty?

[PETITIONER]: Yes.

***

THE COURT: Has anyone made a promise or assurance to you of

any kind to get you to plead guilty, other than what’s

in your plea agreement?

[PETITIONER]: No.

THE COURT: Are you relying on any agreement, discussion,

promise, or understanding with anyone concerning

what sentence will be imposed if you plead guilty,

other than what’s in your plea agreement?

[PETITIONER]: No.

THE COURT: At this time, do you understand that you can’t know

the exact sentence you’ll receive?

[PETITIONER]: Yes.

THE COURT: Has anyone promised that you’ll receive a light

sentence or otherwise be rewarded for pleading guilty

other than what’s in your plea agreement?

[PETITIONER]: No.

(Crim. Doc. 63 at 42–43.) The prosecutor and defense counsel similarly assured

the Court that no promises had been given to Petitioner in exchange for her

guilty pleas, outside the promises in the Plea Agreement. (Id. at 43.) And

Petitioner affirmed she had told the truth at the hearing. (Id. at 44.)

Petitioner also understood that the Court could impose a sentence up to

the statutory maximum, and that she would remain bound by her guilty plea

even if her sentence turned out to be harsher than expected:

THE COURT: …. The district judge is bound not by the guidelines

range, but by the statutory range. He can impose a

sentence that is more severe or less severe than what

the guidelines recommend. Again, he’s only bound by

statute, not by guidelines.

Do you understand that?

[PETITIONER]: Yes.

***

THE COURT: …. You should know the sentence the district judge

imposes might be different from any estimated

sentence that Mr. Carson or anyone else has given to

you. In fact, it could be higher than you expect.

If it’s higher than you expect, or for whatever reason,

you’re still going to be bound by your guilty plea and

won’t have a right to withdraw your guilty plea.

Do you understand all of this?

[PETITIONER]: Yes.

(Id. at 28–29). And Petitioner knew that if the Court stacked the maximum

sentences for each count, she could be sentenced to up to 60 years in prison. (Id.

at 18–20, 31.)

Thus, Petitioner’s sworn statements at the plea colloquy, and those of her

counsel and the prosecutor, squarely contradict her current allegations that

counsel promised her a 15-year sentence and that she counted on that promise.

These statements “carry a strong presumption of verity,” Blackledge, 431 U.S.

at 74, and “constitute a formidable barrier” to collateral relief, id. at 73–74.

Petitioner “bears a heavy burden to show [her] statements were false,” Rogers,

848 F.2d at 168, and she fails to carry that burden. Petitioner filed no objections

to the acceptance of her guilty pleas and raised no objection at sentencing when

the Court pronounced the 40-year term of imprisonment. Then, nearly two

years after pleading guilty, after all other avenues for relief from her sentence

were exhausted, she submits only her own affidavit to counter her directly

inconsistent former testimony. And Petitioner’s allegations are conclusory. She

does not provide details to support her claim, such as when counsel purportedly

promised her a 15-year sentence, how or where counsel delivered this promise,

or what evidence Petitioner would adduce in support of her claim. “The district

court is entitled to discredit a defendant’s newly-minted story about being

[promised a certain sentence] when that story is supported only by the

defendant’s conclusory [and self-serving] statements.” Winthrop-Redin, 767

F.3d at 1217. Because the record refutes Petitioner’s belated and conclusory

allegation that she pleaded guilty because counsel promised her a 15-year

sentence, relief on this claim will be denied.

C. Third Ground: Failure to object to PSR

Next, Petitioner alleges that counsel gave ineffective assistance by failing

to object to the PSR. (Civ. Doc. 1 at 5.) In her affidavit, she says “there were

plenty of objections made by myself that should have been presented.” (Civ. Doc.

1-8, p. 2.) Petitioner identifies two guidelines enhancements she believes

counsel should have disputed. First, she argues that counsel should have

objected to a two-level enhancement under U.S.S.G. § 2G2.1(b)(3) for the

distribution of child pornography. (Id., pp. 2–3; see also PSR ¶ 39.) She believes

she should not have received the distribution enhancement because Kevin

Hight was never charged with a crime and because she did not “deliver or

transfer possession” of child pornography. (Civ. Doc. 1-8, pp. 2–3.) Instead,

Hight allegedly placed the thumb drive containing child pornography in a U-

Haul when Petitioner, Hight, and her son moved from Virginia to Florida. (See

id., p. 3.) Second, Petitioner argues that counsel should have objected to a five-

level enhancement under U.S.S.G. § 4B1.5(b)(1) for being a repeat and

dangerous sex offender. (Id.; see also PSR ¶ 49.) She contends she was ineligible

for this enhancement because “USSG § 5B1.5(b)[6] [sic] states that the pattern

of activity requires that the defendant engaged in prohibited conduct on at least

two separate occasions AND that at least two minors were victims of the

conduct.” (Civ. Doc. 1-8, p. 3.)

Petitioner says she asked counsel to object to these enhancements and to

present mitigating factors, that she was told counsel would do so, but that

6 There is no § 5B1.5 in the Sentencing Guidelines. Presumably, Petitioner meant to say

§ 4B1.5.

counsel failed to make the objections. (Id., p. 3.) Petitioner says she only learned

that counsel had filed no objections to the PSR from speaking with her appellate

attorney. (Id., p. 2.)

The record refutes these allegations. Petitioner was standing next to

counsel when, at the opening of the sentencing hearing, counsel announced he

had no objections to the PSR or the guidelines calculation. (Crim. Doc. 64 at 6.)

When it was her opportunity to speak, Petitioner voiced no objection to the

guideline calculation or her counsel’s lack of objections to it. (See id. at 103–10.)

Rather than litigate the guidelines calculation, Petitioner’s attorney focused on

presenting mitigating evidence. Counsel presented testimony from two family

members and a psychologist, who described Petitioner’s struggles with low self-

esteem, depression, and a traumatic family history, and how these might have

influenced her conduct. (Id. at 41–90.) Counsel’s presentation persuaded the

Court to impose a sentence 20 years below the guidelines range, for a total of

40 years’ imprisonment. The sentence drew an objection from the United States,

but not from Petitioner. (Crim. Doc. 65 at 23.)

Petitioner’s objections to the distribution and repeat sex offender

enhancements are misplaced, and her attorney was not ineffective for not

raising them. Under U.S.S.G. § 2G2.1, two offense levels are added “[i]f the

defendant knowingly engaged in [the] distribution” of child pornography.

U.S.S.G. § 2G2.1(b)(3). “Distribution” “means any act, including possession with

intent to distribute, production, transmission, advertisement, and

transportation, related to the transfer of material involving the sexual

exploitation of a minor.” Id., § 2G2.1, cmt. 1. For purposes of the enhancement,

“the defendant ‘knowingly engaged in distribution’ if the defendant (A)

knowingly committed the distribution, (B) aided, abetted, counseled,

commanded, induced, procured, or willfully caused the distribution, or (C)

conspired to distribute.” Id., § 2G2.1, cmt. 3. When Petitioner pleaded guilty,

she admitted to producing the pornographic videos of her and her son and

admitted that “[a]fter producing these videos, [she] sent them to a man with the

initials K.H. by text message.” (Crim. Doc. 33 at 23.) Because Petitioner

admitted that she transmitted child pornography to another person by text

message, her attorney had no reasonable basis to contest the distribution

enhancement. See Freeman v. Att’y Gen., 536 F.3d 1225, 1233 (11th Cir. 2008)

(“A lawyer cannot be deficient for failing to raise a meritless claim.”).

As for the five-level repeat sex offender enhancement, the sentencing

guidelines provide:

(b) In any case in which the defendant’s instant offense of conviction is a

covered sex crime, neither § 4B1.1 nor subsection (a) of this guideline

applies, and the defendant engaged in a pattern of activity involving

prohibited sexual conduct:

(1) The offense level shall be 5 plus the offense level

determined under Chapters Two and Three. However, if the

resulting offense level is less than level 22, the offense level

shall be level 22, decreased by the number of levels

corresponding to any applicable adjustment from § 3E1.1.

(2) The criminal history category shall be the criminal

history category determined under Chapter Four, Part A.

U.S.S.G. § 4B1.5(b). Petitioner argues that the enhancement does not apply to

her because it requires that someone be “a REPEAT and dangerous sex offender

against minor(s) plural” and requires “that at least two minors were victims of

the [prohibited] conduct.” (Civ. Doc. 1-8, p. 3.) Petitioner is mistaken. The

guideline’s commentary states:

(B) Determination of Pattern of Activity.--

(i) In General.--For purposes of subsection (b), the

defendant engaged in a pattern of activity involving

prohibited sexual conduct if on at least two separate

occasions, the defendant engaged in prohibited sexual

conduct with a minor.

(ii) Occasion of Prohibited Sexual Conduct.--An

occasion of prohibited sexual conduct may be considered for

purposes of subsection (b) without regard to whether the

occasion (I) occurred during the course of the instant

offense; or (II) resulted in a conviction for the conduct that

occurred on that occasion.

U.S.S.G. § 4B1.5, cmt. 4(B) (emphasis added).

Contrary to Petitioner’s assertion, the enhancement does not require the

existence of two or more underage victims. Rather, the guideline requires that

the defendant engaged “in a pattern of activity involving prohibited sexual

conduct”––meaning at least two separate occasions of prohibited sexual conduct

with “a minor”––no matter if those occasions occurred during the course of the

offense or resulted in a conviction. Id. Petitioner satisfied these criteria. She

admitted to producing two videos on different dates––July 18, 2015, and August

16, 2015––depicting her and C.A. engaged in sexually explicit conduct. (Crim.

Doc. 33 at 22–23.) Altogether, Petitioner created eighteen videos of her and C.A.

between July 18 and September 21, 2015. (PSR ¶ 18.) Petitioner’s conduct was

part of a pattern in which she created sexually explicit videos with C.A. and

sent them to her boyfriend’s cell phone for his consumption. (Id. ¶ 20.) Thus, the

enhancement was properly applied, counsel had no basis for objecting to it, and

counsel did not perform deficiently by not raising such an objection. Freeman,

536 F.3d at 1233.

Because Petitioner’s allegations and the record show she is not entitled

to relief as a matter of law, relief on this claim will be denied.

D. Fourth Ground: Failure to seek dismissal of the Indictment

Finally, Petitioner alleges that her attorney gave ineffective assistance by

failing to move to dismiss the Indictment. (Civ. Doc. 1 at 5; Civ. Doc. 1-1 at 12–

14.) Petitioner argues that, “In this case, [she] was indicted for the shipping and

transportation of illegal matter in violation of 18 U.S.C. §§ 2252(a)(4)(B) and

(b)(2).” (Civ. Doc. 1-1 at 13.) That was wrong, Petitioner argues, because it was

her allegedly abusive ex-boyfriend, Kevin Hight, who “was in sole possession of

the matter as his personal item” and was responsible for transporting it across

state lines. (Id.) Thus, Petitioner argues that her counsel should have

challenged the “veracity of the Indictment” and moved to dismiss it based on

factual inaccuracies. (Id. at 14.)

This claim fails for several reasons. First, the Indictment did not charge

Petitioner with “the shipping and transportation” of child pornography. Rather,

the Indictment charged her with possessing a matter containing child

pornography––i.e., the USB thumb drive––“that had been shipped and

transported in and affecting interstate and foreign commerce and had been

produced using materials that had been shipped and transported in and

affecting interstate and foreign commerce.” (Crim. Doc. 9 at 1.) Here, the USB

thumb drive that stored child pornography moved from Virginia to Florida. It

is irrelevant if Petitioner herself did not transport the thumb drive across state

lines; what matters is that it did move across state lines. See United States v.

Penton, 380 F. App’x 818, 820 (11th Cir. 2010) (“We have held that the

Government can satisfy the interstate-commerce requirement of child

pornography statutes by showing that the computer equipment on which the

images are stored traveled in interstate commerce, regardless of how the images

themselves were originally produced.” (citing United States v. Maxwell, 446

F.3d 1210, 1211–12, 1219 (11th Cir. 2006))).

Second, even if the Indictment contained factual inaccuracies in

Petitioner’s eyes, that is not a basis for seeking dismissal of the Indictment. The

Federal Rules of Criminal Procedure contain no provision for dismissing an

indictment simply because the defendant contends it is factually inaccurate.

See Fed. R. Crim. P. 12(b). That is the whole purpose of a trial: for a jury to test

an indictment’s factual accuracy. So, a dispute about the indictment’s factual

correctness is not a reason to seek its dismissal short of trial.

Third, Petitioner was not convicted under the Indictment anyway.

Instead, she waived her right to require a superseding indictment (Crim. Doc.

31) and pleaded guilty to the two counts in the Superseding Information (Crim.

Doc. 28). Through her guilty plea she admitted the truth of the charges in the

Superseding Information, rendering moot any defect in the earlier Indictment.

“A defendant who enters a plea of guilty waives all nonjurisdictional challenges

to the constitutionality of the conviction,” including pre-plea claims of

ineffective assistance, “and only an attack on the voluntary and knowing nature

of the plea can be sustained.” Wilson v. United States, 962 F.2d 996, 997 (11th

Cir. 1992) (citation omitted). This “claim of ineffective assistance is not about

[Petitioner’s] decision to plead guilty” and the record “fully reflect[s] the

voluntariness of [her] plea.” Id. Plus, an alleged factual error in the indictment

is not jurisdictional. See United States v. Brown, 752 F.3d 1344, 1354 (11th Cir.

2014) (“So long as the indictment charges the defendant with violating a valid

federal statute as enacted in the United States Code, it alleges an ‘offense

against the laws of the United States’ and, thereby, invokes the district court's

subject-matter jurisdiction.”). Thus, Petitioner waived this claim by entering a

knowing and voluntary guilty plea.

IV. Conclusion

Having considered each of Petitioner’s claims, and finding that none

warrants relief under 28 U.S.C. § 2255, it is ORDERED:

1. Petitioner Christine Alyce Slayman’s Motion Under 28 U.S.C. § 2255

to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1) is DENIED.

2. The Clerk will enter judgment for the United States and against

Petitioner, and close the file.

3. If Petitioner appeals this Order, the Court denies a certificate of

appealability (COA). Because this Court has determined that a COA

is not warranted, the Clerk will terminate from the pending motions

report any motion to proceed on appeal as a pauper that may be filed.

Such termination will serve as a denial of the motion.’

DONE AND ORDERED at Jacksonville, Florida this 7th day of

November, 2022.

a Gmothy Corrigan

YW. TIMOTHY J. CORRIGAN

United States District Judge

7 The Court should issue a COA only if Petitioner makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial showing,

Petitioner “must demonstrate that reasonable jurists would find the district court's

assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274,

282 (2004) (quoting Slack v. McDaniel, 529 U.S. 4738, 484 (2000)), or that “the issues presented

were ‘adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.

322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after

consideration of the record as a whole, the Court will deny a certificate of appealability.

32

lc 19

C:

Counsel of record

Christine Alyce Slayman