LaFever

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) Case No. CR-21-50-G

) Case No. CIV-23-104-G

CHRISTOPHER JAMES LAFEVER, )

)

Defendant. )

ORDER

Now before the Court is Defendant Christopher James LaFever’s pro se Motion

Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. No. 60). The

Government has filed a Response (Doc. No. 65). After careful consideration of the parties’

arguments, the relevant authorities, and the case record, the Court determines that no

evidentiary hearing is necessary and that the Motion should be denied on the existing

record.1

I. Background

On March 2, 2021, a federal grand jury charged Defendant with distribution and

possession of child pornography. See Indictment (Doc. No. 17). Defendant was

represented by retained counsel Edward Blau in this case. See Doc. No. 14.

On June 3, 2021, the parties presented to the Court a signed plea agreement,

pursuant to which Defendant would plead guilty to one count of distribution of child

1 No evidentiary hearing is required where “the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also

United States v. Lopez, 100 F.3d 113, 121 (10th Cir. 1996).

pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). See Plea Agreement (Doc. No.

37). In the plea agreement, Defendant agreed to waive: “the right to appeal Defendant’s

guilty plea . . . and any other aspect of Defendant’s conviction”; “the right to appeal

Defendant’s sentence as imposed by the Court . . . and the manner in which the sentence is

determined” (subject to one inapplicable exception); and “the right to collaterally challenge

or move to modify (under 28 U.S.C. § 2255 . . . or any other ground) Defendant’s

conviction or sentence, . . . except with respect to claims of ineffective assistance of

counsel.” Id. at 7.

Prior to accepting the plea agreement and guilty plea, the Court pursuant to Federal

Rule of Criminal Procedure 11 conducted an extensive colloquy with Defendant, who was

under oath. See Plea Hr’g Tr. (Doc. No. 63). The Court inquired of counsel for the

Government, counsel for Defendant, and Defendant himself as to the competency of

Defendant, including by asking Defendant if he had “ever been treated for any mental

health illness or [had] any mental health condition that would prevent [him] from fully

understanding what’s going on and making good choices,” to which Defendant answered,

“No, sir.” Id. at 5:25-6:20. Defendant was advised of the charge at issue, the range of

punishment that Defendant would face upon pleading guilty, and the rights Defendant

would waive by pleading guilty. See id. at 6:21-16:8.

The Court expressly inquired as to Defendant’s competency to enter into the plea

agreement, asking Defendant if he was “under the influence of any alcohol or drugs or

medication or subject to any mental health condition at the time you signed that agreement

that would have affected your ability to understand what was going on?,” to which

Defendant answered, “No, sir.” Id. at 13:1-5. Defendant represented to the Court that he

had the opportunity to review and discuss the plea agreement with his attorney prior to

signing the agreement, that he understood all statements contained in the plea agreement,

and that he understood that he was waiving rights in the plea agreement, including his right

to appeal the conviction and sentence except under limited circumstances. See id. at 12:19-

14:8. After discussing these and other aspects of the plea agreement with Defendant, the

Court asked whether Defendant was choosing to “reaffirm the waivers we discussed and

ask the Court to accept the plea agreement?,” to which Defendant answered, “Yes, sir.” Id.

at 14:5-8.

After confirming that Defendant had not been threated or promised any sort of

benefit and that Defendant was “totally satisfied with the quality of services provided to

[Defendant] by [his attorney],” the Court accepted the plea, finding that Defendant was

“fully competent” to enter a plea of guilty, that he understood the charge and the potential

punishment on that charge, that he was knowingly, voluntarily, and intelligently entering a

plea of guilty to the charge, and that there was a factual basis for the plea of guilty. Id. at

15:16-21, 16:9-17, 17:22-18:7.

At the sentencing hearing of January 6, 2022, the Court determined that the advisory

imprisonment range under the United States Sentencing Guidelines was 240 months. See

Sent’g Tr. 6:20-7:25 (Doc. No. 64). The Court imposed a sentence of 240 months’

imprisonment followed by 20 years of supervised release. See id. at 34:7-35:5; J. (Doc.

No. 57) at 2-3.

II. 28 U.S.C. § 2255

Liberally construed, Defendant presents four grounds for relief in his § 2255

Motion. See Def.’s Mot. at 4-9. Under 28 U.S.C. § 2255, a prisoner in custody serving a

federal sentence may move to vacate, set aside, or correct his or her sentence “upon the

ground that the sentence was imposed in violation of the Constitution or laws of the United

States, or that the court was without jurisdiction to impose such sentence, or that the

sentence was in excess of the maximum authorized by law, or is otherwise subject to

collateral attack.” 28 U.S.C. § 2255(a). “Section 2255 is available to correct errors of

constitutional or jurisdictional dimension, or fundamental errors which result in a complete

miscarriage of justice.” Brown v. United States, 34 F.3d 990, 991 (10th Cir. 1994); see also

United States v. Addonizio, 442 U.S. 178, 184-86 (1979).

III. Discussion

A. Ground One: Knowing and Voluntary Plea

“To enter a plea that is knowing and voluntary, the defendant must have a full

understanding of what the plea connotes and of its consequence.” United States v. Hurlich,

293 F.3d 1223, 1230 (10th Cir. 2002) (internal quotation marks omitted).

Defendant argues that his guilty plea “was not knowing and intelligent” because he

“was not mentally stable” when he accepted the plea. Def.’s Mot. at 5. The Government

objects that, through his plea agreement, Defendant waived the ability to bring this claim.

See Gov’t’s Resp. at 6.

“[A] waiver of collateral attack rights brought under § 2255 is generally enforceable

where the waiver is expressly stated in the plea agreement and where both the plea and the

waiver were knowingly and voluntarily made.” United States v. Cockerham, 237 F.3d

1179, 1183 (10th Cir. 2001). Courts consider the following factors when deciding whether

to enforce a waiver of collateral attack rights: (1) whether the § 2255 motion falls within

the scope of the waiver, (2) whether the defendant knowingly and voluntarily waived his

or her right to bring a § 2255 motion, and (3) whether enforcing the waiver would result in

a miscarriage of justice. See id.; United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.

2004); United States v. Walker, No. CR-16-39-D, 2022 WL 2019972, at *1 (W.D. Okla.

June 6, 2022).

1. Scope of Waiver

In the plea agreement, Defendant waived his right to collaterally challenge his

conviction or sentence under 28 U.S.C. § 2255, except on the ground of ineffective

assistance of counsel. See Plea Agreement at 7. The Court agrees with the Government

that Defendant’s Ground One falls within the scope of this collateral-attack waiver.

2. Knowing and Voluntary Waiver

With respect to this second factor, “[t]he defendant bears the burden to demonstrate

that [his] waiver was not knowing and voluntary.” United States v. Smith, 500 F.3d 1206,

1210 (10th Cir. 2007). The Court considers two factors when assessing a defendant’s

waiver. See id. First, the Court examines “‘whether the language of the Plea Agreement

states that the defendant entered the plea agreement knowingly and voluntarily.’” Id. at

1210-11 (quoting Hahn, 359 F.3d at 1324).2 Second, the Court examines the adequacy of

the advisements and statements made during the Rule 11 colloquy. Id. at 1211.

Here, Defendant’s plea agreement certified that “Defendant knowingly and

voluntarily waive[d]” his right to collaterally attack his conviction or sentence. Plea

Agreement at 7. And the Court conducted a lengthy Rule 11 colloquy, during which it

ensured that Defendant was competent and understood the charge against him, the potential

punishment on that charge, the sentencing process, the terms of the plea agreement, and in

particular Defendant’s waiver of rights in the plea agreement. See Plea Hr’g Tr. 4:12-

17:21. Defendant stated on the record that he had reviewed the plea agreement, discussed

it with his attorney, and understood its terms. See id. at 12:19-13:5. Defendant further

stated that he understood the rights that he was waiving and that he wished to plead guilty

anyway. See id. at 13:6-14:8. Following the colloquy and questioning by the Government

regarding the factual basis of the plea, the Court found that Defendant’s guilty plea was

knowing, intelligent, and voluntary. See id. at 17:22-18:5. Accordingly, the Court

accepted Defendant’s guilty plea and the plea agreement. See id. at 18:6-7.

“In considering the totality of the circumstances, either the express language of the

plea agreement, if sufficiently clear, detailed, and comprehensive, or the probing inquiry

2 “A plea is ‘knowing’ if the defendant has a full understanding of what the plea connotes

and of its consequences.” United States v. Vidal, 561 F.3d 1113, 1119 (10th Cir. 2009)

(internal quotation marks omitted). “[A] plea of guilty entered by one fully aware of the

direct consequences of the plea is voluntary in a constitutional sense unless induced by

threats, misrepresentation, or perhaps by promises that are by their nature improper as

having no proper relationship to the prosecutor’s business.” Bousley v. United States, 523

U.S. 614, 619 (1998) (omissions and internal quotation marks omitted).

of a proper Rule 11 colloquy could be enough to conclude the waiver was knowing and

voluntary. But the synergistic effect of both will often be conclusive.” United States v.

Tanner, 721 F.3d 1231, 1234 (10th Cir. 2013). Here, the agreement and colloquy

demonstrate that Defendant’s waiver was knowingly and voluntarily made.

3. Whether Enforcing the Waiver Would Result in a Miscarriage of

Justice

Finally, the Court must “determine whether enforcing the waiver will result in a

miscarriage of justice.” Hahn, 359 F.3d at 1327. To show that enforcing a waiver of

collateral attack rights would result in a miscarriage of justice, Defendant must demonstrate

one of the following: (1) that the district court relied on an impermissible factor such as

race; (2) that the defendant received ineffective assistance of counsel in conjunction with

negotiation of the waiver; (3) that the sentence exceeds the statutory maximum; or (4) that

the waiver is otherwise unlawful in the sense that it suffers from error that seriously affects

the fairness, integrity, or public reputation of judicial proceedings. See id.; United States

v. Anderson, 374 F.3d 955, 959 (10th Cir. 2004); Walker, 2022 WL 2019972, at *2.

Here, Defendant’s arguments do not implicate the first or third of the listed ways of

showing a miscarriage of justice. As to the second way of showing a miscarriage of justice,

Defendant argues that he did not receive effective assistance of counsel but does not

specifically contend that his counsel was ineffective in negotiating the plea agreement or

the waivers in that agreement. As to the fourth way of showing a miscarriage of justice,

Defendant does not contend that the plea agreement or the waivers in the plea agreement

are, in and of themselves, unlawful. Accordingly, Defendant has not shown that

enforcement of the waiver of Defendant’s right to collaterally attack his conviction or

sentence would result in a miscarriage of justice.

4. Conclusion Regarding Waiver

Having fully considered the motion, reviewed the record in this case, and applied

the relevant factors, the Court finds that the waiver contained in the plea agreement is valid

and enforceable and that Defendant has waived his right to bring Ground One through a 28

U.S.C. § 2255 motion. See Hahn, 359 F.3d at 1325-27; see also United States v. Leon, 476

F.3d 829, 831-32, 834 (10th Cir. 2007) (enforcing plea agreement’s appeal waiver against

defendant who alleged he “was not mentally competent during his guilty plea” where the

record reflected that the waiver was knowingly and voluntarily made).3

3 Alternatively, Defendant’s Ground One would fail even if considered on the merits. As

noted, Defendant alleges only that he “was not mentally stable” when he accepted the plea.

Def.’s Mot. at 5. Defendant offers no support or explanation for this assertion, and the

Court is “not required to fashion Defendant’s arguments for him where his allegations are

merely conclusory in nature and without supporting factual averments.” United States v.

Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).

In addition, this claim is undermined by the relevant record. At the plea hearing, Defendant

denied being under the influence of any substance or subject to any mental health condition

that would have affected his ability to understand the decision he was making, either when

he signed the plea agreement or at the time of the hearing itself. See Plea Hr’g Tr. 5:25-

6:20, 13:1-5. Defendant offers no factual support, or explanation, for why these denials

were untrue or otherwise should be disregarded by the Court. “Defendant could have

placed the issue of his competency before the Court at his plea hearing or at his sentencing

hearing. He did not do so.” United States v. Curtis, No. CR-18-204-D, 2022 WL 1748259,

at *5 (W.D. Okla. May 31, 2022). Accordingly, the Court finds that Defendant “does not,

now, raise any legitimate question of his competence to enter the guilty plea.” Id.

B. Grounds Two, Three, and Four: Ineffective Assistance of Counsel

In his remaining claims, Defendant seeks relief on the basis that his retained attorney

rendered constitutionally ineffective assistance. See Def.’s Mot. at 4-5, 7-9. The

Government responds that each of Defendant’s claims of ineffective assistance is without

merit because Defendant has failed to show that his counsel’s performance fell below an

objective standard of reasonableness or that Defendant was prejudiced as a result of his

counsel’s deficient performance. See Gov’t Resp. at 6-8.

To show that his counsel’s performance was constitutionally ineffective, Defendant

must demonstrate that the performance of counsel was deficient and that such deficiency

prejudiced the outcome of the case. See Strickland v. Washington, 466 U.S. 668, 687

(1984). To establish the first prong of the Strickland test, Defendant must show that

counsel’s performance was unreasonable under “prevailing professional norms.” Id. at

688. The Supreme Court shuns specific guidelines for measuring deficient performance,

as “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account

of the variety of circumstances faced by defense counsel or the range of legitimate

decisions regarding how best to represent a criminal defendant.” Id. at 688-89. Defendant

must overcome the presumption that the “challenged action ‘might be considered sound

trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). “For

counsel’s performance to be constitutionally ineffective, it must have been completely

unreasonable, not merely wrong.” Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999).

If Defendant shows deficient performance, he must also show prejudice by

establishing “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “When

a defendant challenges a conviction, the question is whether there is a reasonable

probability that, absent the errors, the factfinder would have had a reasonable doubt

respecting guilt.” Id. at 695. In making that determination, the Court must “tak[e] the

unaffected findings as a given” and decide whether the outcome “would reasonably likely

have been different absent the errors.” Id. at 696.

The Court “may address the performance and prejudice components in any order”

and “need not address both if [Defendant] fails to make a sufficient showing of one.”

Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998).

1. Counsel’s Failure to Object to Certain Information in the PSR

Defendant first argues that his attorney’s performance was deficient because

counsel failed to object to the admission of the Government’s “cell phone text messages .

. . not related to the charge.” Def.’s Mot. at 4.

This appears to be a reference to messages that were identified in Paragraph 21a of

the Third Revised Final Presentence Investigation Report (“PSR”) (Doc. No. 54). The PSR

excerpted a Facebook Messenger chat between Defendant and another adult relating to a

May 24, 2020 pornographic video (which depicts the adult associate sexually abusing

minor victims more particularly described in the PSR) found on Defendant’s cell phone.

See PSR ¶ 21a. On December 15, 2020, Defendant stated to the other adult, “I want to

fuck you all lol,” and made other statements reflecting a desire by Defendant to have sex

with the adult associate, his wife, and the minor victims who are depicted in the May 24,

2020 video. Id.

The PSR found the May 24, 2020 video, along with Defendant’s December 15, 2020

messages, to be relevant conduct to Defendant’s offense of conviction: distribution of child

pornography between June 28, 2020, and July 2, 2020. See id.; Indictment at 1. Defendant

has not shown why this finding should have been rejected. See U.S.S.G. § 1B1.3(a)(1)(A)

(defining “relevant conduct” to include “all acts . . . committed . . . by the defendant . . .

that occurred during the commission of the offense of conviction, in preparation for that

offense, or in the course of attempting to avoid detection or responsibility for that offense”).

And, even if not considered as relevant conduct, the messages were plainly information

that the Court could consider in determining an appropriate sentence under 18 U.S.C. §

3553. See 18 U.S.C. § 3553(a). These messages would obviously inform the Court’s

consideration of the § 3553 factors, including “the history and characteristics of the

defendant” and “the need for the sentence imposed . . . to afford adequate deterrence to

criminal conduct” and “protect the public from further crimes of the defendant.” Id. §

3553(a)(1), (2). There is no suggestion that the PSR did not accurately characterize the

chat or its context.

It follows that defense counsel’s “strategic decision[]” not to object to Paragraph

21a of the PSR has not been shown to have been objectively unreasonable; therefore, such

decision was not constitutionally ineffective under Strickland. Parker v. Jones, 423 F.

App’x 824, 828 (10th Cir. 2011) (“[S]trategic decisions are constitutionally ineffective

only if they are completely unreasonable, not merely wrong, so that they bear no

relationship to a possible defense strategy.” (alteration and internal quotation marks

omitted)).4

2. Counsel’s Argument as to an Appropriate Sentence

Defendant claims that his counsel was ineffective for “fail[ing] to argue against” the

20-year sentence imposed by the Court. Def.’s Mot. at 7. This factual assertion is belied

by the record: defense counsel argued extensively for a lower sentence in a written

Sentencing Memorandum and at the hearing. See Sent’g Mem. (Doc. No. 49) at 4-10;

Sent’g Tr. 12:4-18:19; see also United States v. Clark, 650 F. App’x 569, 571 (10th Cir.

2016) (rejecting the defendant’s contention “that counsel was ineffective for failing to

object to his criminal-history calculation” where the record showed that counsel did in fact

object to the calculation).

3. Counsel’s Failure to Request That Defendant’s Family Members

Speak at the Sentencing Hearing

Defendant also claims ineffective assistance because his attorney did “not hav[e]”

Defendant’s family speak at the sentencing hearing on behalf of Defendant. Def.’s Mot.

at 7 (asserting that Defendant’s family “was not allowed to” speak at the proceeding). As

a threshold matter, Defendant provides no details regarding these allegations. The Court

will not “fashion Defendant’s arguments for him where his allegations are merely

4 The PSR also quotes text messages made between Defendant and minor children that

were connected to Defendant’s prior criminal charges and convictions. See PSR ¶¶ 45-46.

As these messages were likewise relevant to Defendant’s history and characteristics, as

well as his criminal history calculation under the Sentencing Guidelines, any claim that

defense counsel performed deficiently by failing to object to the inclusion of these

messages in the PSR also fails under Strickland.

conclusory in nature and without supporting factual averments.” Fisher, 38 F.3d at 1147.

Moreover, while at the sentencing hearing a defendant has a right to speak and any victim

has the right to be reasonably heard, there is no entitlement for a defendant’s family

member to speak. See Fed. R. Crim. P. 32(i)(4).

In addition, the Court here “reviewed all the [letters] that were submitted,” which

included “a large variety of letters of support from [Defendant’s] friends and family and

coworkers,” and specifically referenced those letters in announcing Defendant’s criminal

sentence. Sent’g Tr. 4:14-19, 31:22-32-4, 37:19-22. Defendant does not explain what his

family members would have stated at the hearing or why such statements would have

changed the outcome.

Accordingly, Defendant does not show “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

4. Counsel’s Failure to Challenge the Search Warrant or Other

Evidence

In Ground Four, Defendant argues as follows:

The warrant and affidavit w[ere] invalid. Ineffective assistance.

The warrant’s scope was exceeded. The affidavit was facially invalid.

Counsel did not challenge this.

Def.’s Mot. at 8.

Again, the Court will not “fashion Defendant’s arguments for him” when

Defendant’s contentions are conclusory and not supported by specific factual allegations.

Fisher, 38 F.3d at 1147. Such “[c]onclusory allegations” and “vague descriptions of the

alleged deficient performance” do not suffice to establish the deficiency prong of

Strickland. United States v. Davis, No. CR-16-119-R-7, 2018 WL 3077801, at *3 (W.D.

Okla. June 21, 2018). Defendant’s general disagreement with his attorney’s decisions does

not “overcome the presumption that, under the circumstances, the challenged action might

be considered sound trial strategy” and therefore fails to establish ineffective assistance as

to Ground Four. Strickland, 466 U.S. at 689 (internal quotation marks omitted).

CONCLUSION

For the reasons explained above, Defendant Christopher James LaFever’s Motion

Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. No. 60) is

DENIED.

Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings, the Court

must issue or deny a certificate of appealability (“COA”) when it enters a final order

adverse to a defendant. A COA may issue only upon “a substantial showing of the denial

of a constitutional right.” See 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard

by demonstrating that jurists of reason could disagree with the district court’s resolution of

his constitutional claims or that jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327

(2003). Upon consideration, the Court concludes that the requisite standard is not met in

this case. Therefore, a COA is denied.

A separate judgment shall be entered.

IT IS SO ORDERED this 5th day of March, 2026.

CHARLES B. GOODWIN

United States District Judge

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