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Scholtes v. United States

United States District Court, Seventh Circuit

October 15, 2013



ROBERT W. GETTLEMAN, District Judge.

Petitioner Timothy Scholtes has filed a pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255, claiming ineffective assistance of trial counsel. The government opposes petitioner's motion. For the reasons described below, the motion is denied.


In 2009, petitioner was charged in a three-count information for sexual exploitation of a child, in violation of 18 U.S.C. § 2251(a) (Count One); and receiving images of child pornography, in violation of 18 U.S.C. § 2251(a)(2)(A) (Counts Two and Three). At his arraignment, petitioner waived indictment, and the prosecution tendered a draft plea agreement to petitioner's counsel. According to the government, the draft plea agreement set out the statutory penalties for each offense and the anticipated Guidelines calculations. Under the draft plea agreement, the parties were free to recommend any sentence they deemed appropriate.

After several weeks, petitioner and his counsel met with the prosecutor to discuss the possibility of a plea. At the meeting, petitioner also had the opportunity to conduct open file discovery and see the evidence the government intended to offer in its case in chief. The prosecutor advised petitioner that he needed to make a decision regarding the plea by the next status date or the government would seek additional charges in anticipation of trial.

Eight days later, at the next status hearing, petitioner's counsel indicated that petitioner had not yet reached a decision. After a brief private conversation, petitioner's counsel advised the court that petitioner intended to enter a blind plea. The court recessed and reconvened two hours later for a change of plea. At the change of plea, the court conducted the standard colloquy. Because the plea was a blind plea, the court went through the factual basis of the plea in very specific detail, reviewing the factual basis for each charge and confirming with petitioner that those supporting facts were correct.

Regarding Count One, petitioner agreed that on August 17, 2007, he had transported a 10 year old boy to and from a baseball game, and that while the boy was in his car, petitioner took a picture of the boy's genitals. Petitioner admitted that he downloaded the image into his computer a few days later and printed a copy of the photograph. Regarding Counts Two and Three, petitioner admitted that he received an email that contained a link to a child pornography website and that he followed that link. Petitioner further stated that he entered his personal and credit card information on that website in order to subscribe to it, and that he selected various pornographic images of children to receive. The record demonstrates that petitioner equivocated numerous times and initially denied his guilt on Counts Two and Three, but eventually stated that his reluctance was due to how difficult it was to admit the conduct and not any disagreement with the facts alleged. The court ultimately accepted his plea.

Four months later, after the presentence interview was completed, petitioner moved to substitute counsel, which the court granted, and moved to withdraw his guilty plea, arguing that he had not understood the elements of the crimes he was charged with or the standard of proof required to prove those elements. The court took briefing, held a hearing, and ultimately denied the motion. Petitioner was subsequently sentenced to the statutory maximum of 30 years on Count One, and consecutive ten-year sentences on Counts Two and Three.

Petitioner appealed his sentence, and his appellate counsel moved to withdraw based on Anders v. California , 386 U.S. 738 (1967). The Seventh Circuit granted counsel's motion and denied petitioner's appeal. The appellate court specifically affirmed that petitioner's plea was voluntary and not coerced by threats from his counsel or the government, and that petitioner was competent to plead at the change of plea proceeding.

Petitioner now files a § 2255 motion, arguing that his initial counsel, Steven Komie, was ineffective. Petitioner cites eight grounds supporting his claim of ineffective assistance of counsel: (1) failure to apprise petitioner of the existence of a plea agreement and its benefits; (2) failure to request a mental examination prior to plea; (3) failure to prepare for the change of plea hearing; (4) withholding discovery from petitioner; (5) failure to consult with petitioner; (6) failure to do any pretrial investigation; (7) failure to challenge the search warrant; and (8) failure to challenge the arrest warrant.

For the reasons described below, the court denies petitioner's motion.


A. § 2255 Petitions

Section 2255 allows a person convicted of a federal crime to seek to vacate, set aside, or correct his sentence. This relief is available only in limited circumstances, such as where an error is jurisdictional, constitutional, or there has been a "complete miscarriage of justice." See Harris v. United States , 366 F.3d 593, 594 (7th Cir. 2004); Bischel v. United States , 32 F.3d 259, 263 (7th Cir. 1994) (internal quotations and citations omitted). The record is reviewed and all reasonable inferences are drawn in favor of the ...

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