United States v. Lombard , 44 F. Supp. 3d 14 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMIA
FRANK B. LOMARD,
Petitioner,
v. : Criminal Case No. 09-313 (GK)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION
Petitioner Frank Lombard (“Lombard” or Petitioner) has
filed a Motion to vacate his criminal sentence pursuant to 28
U.S.C. § 2255 [Dkt. No. 34]. Lombard argues that his sentence
of 327 months imprisonment for sexual exploitation of a ndnor
should be vacated because his attorney rendered ineffective
assistance during plea negotiations with the Government, at
sentencing, and on direct appeal. Upon consideration of the
Motion, Opposition [Dkt. No. 48], Reply [Dkt. No. 5l],
Petitioner’s Response to the Court’s April 25, 2014 Order [Dkt.
No. 54], the Government’s Response to the Court's Order [Dkt.
No. 55], and the entire record herein, and for the reasons set
forth below, Petitioner’s Motion shall be denied.
I. Background
A. The Offense and Plea Agreement
On December l7, 2009, Lombard pleaded guilty to one count
of sexual exploitation of a child in violation of 18 U.S.C. §
225l(a). §ee Plea Agreement [Dkt. No. l6]. The Statement of
the Offense, which Lombard signed and agreed “fairly and
accurately describe[d] [his] actions,” stated that he sexually
molested his five-year old adopted son on several occasions over
a period of two years. Statement of the Offense TI 5, 8 [Dkt.
No. l7]; see also Plea Agreement I 5. lt further stated that he
broadcast webcam videos of these activities to other pedophiles
in Internet chat rooms using the moniker “perv dad for fun” and,
on at least one occasion, invited other Internet pedophiles to
come to his home to molest his son as well. Statement of the
Offense II 6, 8. lt also indicated that Lombard told the
undercover officer investigating the offense that “the abuse of
the child was easier when the child was too young to talk or
know what was happening,” and that, as the child grew older, he
“had drugged the child with Benadryl during the molestation” to
make it easier. §§; T 4.
In exchange for Lombard's admission of guilt, the
Government promised that, at Lombard's sentencing, it would
advocate for a sentence in the “low end” of the Sentencing
Guidelines range, which the parties agreed was 262-327 months.
However, the Plea Agreement expressly stated that the
Government's sentencing position would not be binding on the
Court. Plea Agreement at 4. The Agreement emphasized that
Lombard's sentence would be “determined solely by the Court,”
and that “[t]he Government cannot, and does not, make any
promise or representation as to what sentence [Lombard] will
receive.” ld; In signing the Agreement, Lombard represented
that he had read the Agreement in its entirety, agreed that the
facts set forth in it were accurate, discussed it with his
attorney, fully understood it, was satisfied with the legal
services provided by his attorney, and was acting voluntarily
and of his own free will. ld; at 8.
B. Sentencing Submissions
In advance of Lombard's sentencing, both parties submitted
sentencing memoranda and the Probation Office prepared a
Presentence lnvestigation Report (“PSR”), which included a
detailed account of Lombard's criminal conduct and his personal
and familial circumstances, education, professional background,
and mental health history. §§e generally PSR II l-58.
The PSR stated that Lombard was a licensed clinical
psychologist with a bachelor's degree in psychology and a Master
of Social Work, and that, at the time of his arrest, he worked
as an Associate Director for the Center for Health Policy at
Duke University; that he was in a long-term relationship with a
committed partner who was unaware of his criminal activities;
and that he had two adopted sons, ages five and thirteen (the
younger of which was the victim of Lombard's offense). PSR IT
45, 54-58. The PSR further indicated that Lombard reported
having had loving parents and “a good childhood in which all of
his material/emotional needs were met.” PSR I 42. However, he
told the probation officer that, during his adolescence, he was
sexually molested by a teacher on one occasion and raped by two
older men on another occasion, neither of which he ever reported
to his parents or law enforcement. PSR IT 43-44.
The Government filed a Sentencing Memorandum acknowledging
that Lombard had taken responsibility for his criminal conduct
and that it had agreed to cap its sentencing allocution to the
“low end” of the Sentencing Guidelines range. §§e Gov’t’s Sent.
Mem. II l, l6 [Dkt. No. 27]. The Government later submitted a
Supplemental Sentencing Memorandum for a Downward Departure
under Section 5Kl.l of the Sentencing Guidelines based on
Lombard's assistance to law enforcement authorities.
Nevertheless, the Government emphasized its view that Lombard
had “betrayed the trust of his adopted child in the most
\\
deplorable way imaginable” and [n]othing in [his] background
justifies the indignity to which he subjected his child.” Id.
at 9.
Lombard filed a Sentencing Memorandum asking the Court to
impose the statutory minimum sentence of l8O months in light of
his acceptance of responsibility, cooperation with authorities,
lack of any prior criminal record, and the fact that he himself
had been a victim of child sexual abuse. §ee Def.'s Request for
lmposition of a Sentence Outside of the Sentencing Guideline
Range at l [Dkt. No. 23]. Lombard also submitted letters from
both of his parents.
C. The Sentencing Hearing
Lombard's sentencing hearing took place on March 29, 20lO.
At the outset, the Court stated that it had read and closely
considered all of the materials submitted by the parties and the
probation office. Transcript of Sentencing Hearing (“Tr.”) 4.
Counsel for the Government then summarized the evidence of the
offense, which included the reports of an undercover officer and
a confidential source, lnternet chat session logs, archived
computer images, and the Petitioner’s own admissions. Tr. 7-9.
In response to questioning from the Court, counsel for the
Government confirmed that Lombard's activities formed a “pattern
of conduct” that had persisted for well over a year. Tr. l2.
He also explained that the harm to Lombard's adopted son was
especially pernicious and long-lasting because “once someone has
distributed a child[‘s] pornographic picture or video over the
internet, there is no getting it back. . . . [I]mages can
simply be traded, and traded, and traded . . . . lt is just out
on, the lnternet, and tradable, distributable, and viewable to
whoever comes across it.” Tr. lO.
Lombard's attorney, Christopher Shella, argued that Lombard
should receive a lenient sentence because he “took
responsibility for this case from day one when he was first
arrested” and “immediately spoke to the investigators, gave them
information[] [and] was willing to do what was required, what
was right in this case.” Tr. 15-l6. Shella emphasized that
Lombard_ was still available to render such assistance to law
enforcement. Tr. l6. He also pointed out that Lombard had been
sexually abused himself and recently had. been diagnosed with
bipolar disorder. Tr. l8. Shella further stated that he firmly
believed Lombard had come into a “self-realization” of his
wrongdoing and had accepted responsibility for it. Tr. l7-l8.
Lombard addressed the Court, acknowledging that his actions
were “reprehensible,” and that he had hurt his “kids,” parents,
siblings, neighbors, church, co-workers, and “really everyone
that ll have ever cared about.” Tr. l9-20. Lombard indicated
that he was in psychiatric treatment, which had helped him see
that, although he could not undo his conduct, he could “try to
ll
make sure that l never do it again, and he promised that, “if l
get out of prison l won’t ever hurt anyone again.” Tr. 2l.
The Court then made its findings. lt agreed with the
parties that the recommended. range of prison terms under the
Sentencing Guidelines was 262 to 327 nmnths and the n@ndatory
minimum sentence was fifteen years. Tr. 2l. Turning to the
factors outlined in 18 U.S.C. § 3553(a), it remarked that there
was no “need to go through in the record right now all of the
sordid details of this offense” because Lombard had agreed with
the facts contained in the Plea Agreement, all of which were
“very explicit and very specific” and there was “no reason not
to accept all of those facts as true.” Tr. 22.
The Court stressed that it was not dealing with “one
incident or two incidents,” but rather with carefully planned
conduct spanning a period of more than a year, which it could
not attribute to Lombard's “recent diagnosis of bipolar
disorder/d Tr. 27. The Court also explained that it found
Lombard's extensive training in psychology and social work to be
significant, because “Lombard doesn’t have the excuse that he
didn’t realize what was happening. He . . . had to have known
that what he was doing was sick, that it would horribly impact
the little boy[.]” Tr. 25.
The Court observed. that Lombard had a ¢duty “to love and
protect” his son, which was violated in the most “depraved and
1 Defendant arranged to engage in the conduct to which he pled
guilty when his partner was away on travel required by his
employment. See Statement of the Offense l 4.
_7_
perverted” way when he sexually abused the child, filmed the
abuse with knowledge that the “images are going to be out on the
lnternet forever,” and. solicited others to molest his son as
well. Tr. 25. The Court reflected that this conduct must have
gravely impacted, not only the younger son, but also Lombard's
older son and parents. Tr. 24, 27.
The Court considered the requirement, under 18 U.S.C. §
3553(a), that its sentence both adequately protect the public
and also serve the goals of specific and general deterrence, and
it concluded. that it could “not in good conscience” sentence
Lombard at the bottom or ndddle of the Guidelines range. Tr.
29. lt stated that, “after many, many years on the bench, this
is one of the worst offenses l have ever seen,” Tr. 25, and
explained that the 20-year sentence requested by the Government
would result in Lombard being released “somewhere between the
age of 57 or 58 . . . maybe even younger,” at a time when there
was “[n]o question in my mind that he would still be a great
danger to the public.” Tr. 27-28. Based on these
considerations, the Court denied the Government's Motion for a
downward departure and imposed the nmximum Guidelines sentence
of 327 months. Tr. 29.
D. Post-Conviction Proceedings
On April 8, 2010, Lombard appealed his sentence, arguing
that the Court failed to explain its rationale for denying the
Government's motion for a downward departure under Section 5K1.1
of the Sentencing Guidelines and did not appropriately consider
mitigating factors under 18 U.S.C. § 3553(a). On May 24, 2011,
the Court of Appeals rejected these arguments and affirmed.
United States v. Lombard, 424 F. App’x 5, 6-7 (D.C. Cir. 2011).
On October 31, 2011, the United States Supreme Court denied
certiorari. Lombard v. United States, 132 S. Ct. 534 (2011).
On October 19, 2012, Lombard filed this Motion to Vacate
pursuant to 28 U.S.C. § 2255, contending that Shella provided
ineffective legal assistance during plea negotiations, at
sentencing, and on direct appeal [Dkt. No. 34]. On March 11,
2013, the Government filed_ its Opposition [Dkt. No. 48]. On
April 16, 2013, Lombard filed his Reply [Dkt. No. 51].2 On April
24, 2014, the Court held a status conference and directed the
parties to submit additional written statements describing the
arguments or evidence they' wished. to present at a hearing on
Petitioner's Motion, if any. On May 14, 2014, Petitioner
submitted his Response (“Pet’r’s 5/14 Resp.”) [Dkt. No. 54]. On
May 21, 2014, the Government submitted. its Response (“Gov’t's
5/21 Resp.”) [Dkt. No. 55].
2Lombard filed his Petition pro se, but subsequently retained new
counsel and has been assisted by such counsel on his Reply.
{Dkt. Nos. 42 & 47].
II. LEGAL STANDARD
A. Standard Under 28 U.S.C. § 2255
A prisoner in custody under sentence of a federal court may
move the sentencing court to vacate, set aside, or correct its
sentence if the prisoner believes that “the sentence was imposed
in violation of the Constitution or laws of the United States,
or is otherwise subject to collateral attack.” 28 U.S.C. §
2255(a). The petitioner bears the burden of proving his
entitlement to relief by a preponderance of the evidence.
United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973).
Section 2255 requires a district judge to hold a hearing on
the petition unless “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, ln interpreting this requirement,
our Court of Appeals has held that:
the judge's recollection of the events at issue may
enable [her] summarily to dismiss a § 2255 motion;
indeed, [her] ability to do so is one of the
advantages of § 2255 relative to habeas corpus for
state prisoners. Only where the § 2255 motion raises
“detailed and specific” factual allegations whose
resolution requires information outside of the record
or the judge's “personal knowledge or recollection”
must a hearing be held. Even if the files and records
of the case do not clearly rebut the allegations of
the prisoner, no hearing is required where his claims
are “vague, conclusory, or palpably incredible.”
United States v. Pollard, 959 F.2d 101l, 1030-31 (D.C. Cir.
1992) (citations omitted).
B. Ineffective Assistance of Counsel Standard
Under the Sixth Amendment of the Constitution, an accused
has the right to “reasonably effective assistance” of counsel.
Strickland v. Washington, 466 U.S. 668, 687 (l984). This
guarantee applies at all critical stages of a criminal
proceeding, including sentencing' and on direct appeal. See,
e.g., Lafler v. Cooper, 132 S. Ct. l376, 1385-86 (20l2)
(citations omitted).
To obtain relief, a prisoner must satisfy a two-part test.
First, he or she must show that counsel's performance was
objectively deficient. The Supreme Court has not articulated
specific guidelines for appropriate attorney conduct and instead
has emphasized that “[t]he proper measure of attorney
performance remains simply reasonableness under prevailing
professional norms.” Strickland, 466 U.S. at 688. “Judicial
scrutiny of counsel's performance must be highly deferential,
and a court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance.” Knowles v. Mirzayance, 556 U.S. 111, 124 (2009)
(citations and punctuation omitted).
Second, the petitioner must show that the “deficient
performance prejudiced the defense.” Strickland, 466 U.S. at
687-88. “Prejudice means a “reasonable probability that, but
for counsel's unprofessional errors, the result of the
_ 11 _
proceeding would have been different.” United States v.
Poynter, 509 F. App'x 2, 3 (D.C. Cir. 2013) (citing Strickland,
466 U.S. at 694). “A reasonable probability is a probability
sufficient 133 undermine confidence ill the outcome.” Knowles,
556 U.S. at 127.
“Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the ineffectiveness
claim.” Strickland, 466 U.S. at 700.
III . DISCUSSION
A. Ineffective Assistance During the Plea Process
Petitioner claims that his attorney, Christopher Shella,
was ineffective during the plea process because he “failed to
timely investigate and negotiate . . . a favorable plea
agreement.” Mot. at 5. ln particular, Lombard complains that
the Plea Agreement was entered pursuant to Fed. R. Crim. P.
1l(c)(1)(B), which meant that it was not binding on the Court,
rather than pursuant to Rule 11(c)(1)(C), “which would have
bound both the government and the court to the sentence
contemplated” in the Plea Agreement. ld; at Statement of Claim
il 35.3
3 Lombard also asserts that Shella failed to “keep him advised”
of plea discussions or “any opportunities for a favorable plea
agreement.” Pet. at Statement of Clain1 I 34. However, he
provides no details regarding this alleged failure or how it
prejudiced him.
l. Lombard Has Not Identified Any Deficiencies in
Shella's Performance During the Plea Process
lt is well-established that the Sixth Amendment’s guarantee
of effective counsel is applicable to representation during the
plea process. For example, the Supreme Court has recently held
that a. defense attorney’s failure to advise a. defendant of a
plea offer extended by the Government may constitute deficient
performance under Strickland. Missouri v. Frye, 132 S. Ct. 1399(2012). The Supreme Court has likewise held that errors of law
that lead defense counsel to give improvident advice about
whether a defendant should accept or reject a plea offer may
render such assistance ineffective. §ee Lafler, 132 S. Ct. at
1376; Hill v. Lockhart, 474 U.S. 52 (1985); United States v.
Rashad, 331 F.3d 908, 909 (D.C. Cir. 2003). To prevail on this
claim, however, Lombard must demonstrate that Shella's
performance during the plea process fell below an objective
standard of reasonableness. Further, the Supreme Court has
recognized, in the context of plea negotiations in particular,
that negotiation is an “art” with myriad “alternative courses
and. tactics,” §rye, 132 S. Ct. at l408, and that the Sixth
Amendment does not require counsel to pursue “every available
nonfrivolous” path in such negotiations. Knowles, 556 U.S. at
l27.
Lombard does not offer any specific reason why it was
professionally unreasonable for Shella to advise him to enter a
non-binding plea agreement. He does not suggest, as in §§ye,
that the Government ever extended him a binding plea offer that
Shella failed to communicate to him. Frye, 132 S. Ct. at 1408;
see also Lafler, 132 S. Ct. at 1387 (“lf no plea offer is made,
the issue raised here simply does not arise.”). Nor does
he point to any legal errors by Shella during the plea process
that affected his decision to accept a non-binding plea, as in
Lafler.4 §ee Lafler, 132 S. Ct. at 1383. lnstead, he merely
takes issue with the fact that the final plea agreement was non-
binding, which ultimately operated_ to his detriment when the
Court sentenced him to a higher sentence than the one
contemplated by the Plea Agreement, although within the
Guidelines.
Moreover, nonbinding pleas are specifically authorized
under the Federal Rules of Criminal Procedure. The ABA
Standards for Criminal Justice, which the Supreme Court has
recognized state the prevailing norms of criminal defense
practice, Padilla v. Kentucky, 559 U.S. 356, 366-67 (2010),
indicate that nonbinding' pleas are commonly ‘used_ in the plea
bargaining process. See ABA Standard 14-3.1(c)(i) (in exchange
4 As discussed, the non-binding nature of the plea was spelled in
the Plea Agreement itself, which Lombard indicated that he had
read and discussed with his attorney. Plea Agreement at 4, 8.
_ 14 _
for guilty plea, prosecuting attorney may agree “to make or not
to oppose favorable recommendations or to remain silent as to
the sentence which should be imposed if the defendant enters a
plea of guilty”). Thus, there is nothing inherently
unreasonable about Shella's advice that Lombard enter a non-
binding plea agreement.
Nor was a non-binding plea agreement objectively
unreasonable simply because the Court ultimately rejected the
parties' proposed. sentence, An attorney’s effectiveness does
not turn on the final outcome of the proceeding but on whether
counsel exercised “reasonable professional judgment” based on
“prevailing professional norms” and “counsel's perspective at
the time.” Rompilla v. Beard, 545 U.S. 374, 380-81 (2005)
(citations omitted) (emphasis added). Lombard has not pointed
to any circumstances that would have rendered a non-binding plea
agreement for the mandatory minimum sentence unreasonable at the
time it was entered.
Because nonbinding pleas are not inherently unreasonable
and Lombard has not explained how or why Shella's advice to
enter a nonbinding plea was objectively unreasonable at the
time, his claim fails the first prong of Strickland.
2. Lombard Has Not Shown Prejudice
Even if Petitioner could show a specific, objective
deficiency of his trial counsel during the plea process, he has
_15_
not shown any prejudice resulting from that deficiency. To do
so, he must demonstrate a reasonable probability that both the
Government and the Court would have agreed tx) a binding plea
deal on terms he would have accepted more readily than the
agreement he did accept. §§e §ry§, 132 S. Ct. at 1410 (noting
that the prejudice inquiry turns on “whether [the petitioner]
would have accepted the offer to plead pursuant to the
[different] terms” and whether the court and prosecutor would
also have agreed to the deal); see also United States v.
Williams, No. 88-410-CR (SSH), 1999 WL 1212883, at *5 (D.D.C.
Oct. 25, 1999) (“[E]ven assuming that the government would have
consented to a conditional plea, it in all likelihood would have
modified the terms of its original plea offer to reflect the
concession made to defendant, most likely in a way that would
have increased defendant's sentence exposure.”) (citations
omitted).
There is no indication, and Lombard does not allege, that
the Government was willing to entertain a binding plea
agreement, much less on terms Lombard would have accepted more
readily than the agreement he did accept. Thus, Lombard cannot
establish prejudice. See United States v. Medina-Montes, 359 F.
App’x 943, 944 (10th Cir. 2010) (“[Petitioner] baldly asserts
that his trial counsel should have negotiated a conditional
guilty plea . . . . There is absolutely nothing in the record
_16_
to indicate the prosecution was remotely willing to enter into
such an arrangement.”); Wi11iams, 1999 WL 1212883, at *5
(“[B]ecause [defense counsel] was essentially powerless to
effectuate a conditional plea, his alleged neglect to either
advise defendant of the possibility of such a plea and or
negotiate one on his behalf would not qualify as deficient
performance[.]”); Ramos v. United States, No. 01 Cranch 10369(PBS), 2012 WL 1109081, at *5 (D. Mass. Mar. 30, 2013)
(“[Petitioner] asserts that counsel should have negotiated away
[an] enhancement, but it takes two to tango. [Petitioner] does
not explain why the government would have been a willing dance
partner.”).
ln addition, Rule 11(c)(3) grants the trial court the
discretion to reject a binding plea, Given the Court’s
unwillingness to adopt a low or ndd-range sentence at
sentencing, it is not reasonably probable the Court would have
endorsed the same outcome simply because it was presented. by
means of a binding plea agreement. This is another reason
Lombard cannot show prejudice.
ln sum, Lombard's claim of ineffectiveness during the plea
process lacks merit both because Lombard has not identified
anything objectively deficient about Shella's performance, and
because any contention that the Government would have offered a
binding plea on terms he and the Court would have accepted is
entirely speculative.
B. Ineffective Assistance at Sentencing
Lombard also asserts that Shella was ineffective at
sentencing for failing to obtain a professional psychosexual
evaluation, which he contends “would have demonstrated that
prison treatment programs for sex offenders are effective and
that Mr. Lombard would not be a danger to the community upon
release from prison after 20 years minus good time.” Mot. at
Statement of Claim 1 30.
lt is unnecessary to decide whether Shella's failure to
obtain a psychosexual evaluation was objectively reasonable
because Lombard cannot establish prejudice. He has now retained
Frank W. lsele, Ph.D., a clinical psychologist, for purposes of
this Motion, to perform a psychosexual evaluation, and Dr.
lsele’s Report does little to alleviate the Court’s expressed
concerns regarding Lombard's likelihood of reoffending. §§e
generally Pet. Ex. F (“Report”).
First, Dr. lsele suggests that, even with treatment, more
than ten percent of sexual offenders reoffend. ld; at 16
(citing Losel & Schmucker, 2005; Barbaree and Marsha1l, 1988).
Considering the nature of Lombard's offense, a greater than one
in ten chance that Lombard will reoffend is significant and
poses a material risk to the public. ld.
_ 13 _
Second, Dr. lsele’s assessment was that Lombard himself
presented a 9.0-15.7% risk of reoffending over a ten year
period, a risk that appears to increase with the passage of
time, §ee Report at 15. Dr. lsele also cautioned that
Lombard's “child molestation score is in the 95th percentile
suggesting that he is a pedophile, that his problem is severe
and that he needs sexual treatment as well as supervision.
These results are not due to chance and should not be ignored.”
Report at 10 (emphasis added). These comments hardly reassure
the Court that the risk is minimal.
Third, the Court made clear at sentencing that it did not
consider Lombard to be a “typical” pedophile because even with
his prior extensive psychosocial training, he failed to
recognize the wrongfulness of his conduct and to seek treatment.
Tr. 25-26. Dr. lsele’s Report does not account for this
important circumstance at all. See United States v. Miller, 601
F.3d 734, 739 (7th Cir. 2010) (observing that a court's sentence
should be “sufficiently particularized to the individual
circumstances of the case rather than factors common to
offenders with like crimes”).5
5 Furthermore, the Government is correct that while Dr. lsele has
extensive experience as a clinical psychologist, he does not
have any particular expertise with sexual offenders or their
recidivism rates. §ee Report at 19-24. His only documented
experience with anything remotely similar to his case is
performing a psychological evaluation in United States v.
_]_9_
Finally, the Court’s assessment of Lombard's future
dangerousness was only one of several considerations underlying
its sentencing determination. The Court was equally focused on
the gravity and continuing nature of Lombard's offense and the
resulting damage to his children, partner, and parents.
Because Dr. lsele’s Report does little, if anything, to
address the many concerns and considerations that led the Court
to impose a maximum sentence, Shella's failure to obtain a
psychosexual evaluation would not likely have produced a
different outcome at sentencing, and thus, no Strickland
prejudice resulted from that failure.
C. Ineffective Assistance on Direct Appeal
Finally, Lombard claims that Shella was ineffective on
direct appeal because he did not challenge the following
statements, which the Court made at sentencing:
FroH1 all that l have read, none of the[] treatment
programs [for sex offenders] work. We would like to
think they do, but they don’t. There is no scientific
evidence showing that these treatment programs work,
and that when people are released back into the
community, as they' must be, that children are safe
from them. So therefore deterrence - general
deterrence and specific deterrence - must be served by
my sentence here, and the public must be protected
froH1 any contact whatsoever between. Mr. Lombard and
children,
Dorvee, 616 F.3d 174 (2d Cir. 20l0), a child pornography case.
ld; at 24, However, the facts in Dorvee were markedly
different; namely, there was no evidence that the defendant had
ever sexually assaulted a child,
_20_
Tr. 27-28.
Lombard contends that the Court’s reference to recidivism
rates and the inefficacy of treatment was improper because
there was no evidence to that effect in the record, Lombard
further claims that the Court’s reliance on facts not in
evidence supplied a, stronger basis to challenge his sentence
than the arguments Shella actually presented on appeal.
A claim of ineffectiveness on appeal is also governed by
Strickland’s two-part test. Deficient performance in this
context means “that counsel unreasonably failed to discover
nonfrivolous issues” to present on appeal. Smith v. Robbins,
528 U.S. 259, 285 (2000) (citation omitted). However, counsel
“is not required to raise every non-frivolous issue on appeal.”
Martin_ v. Evans, 384 F.3d 848, 851-52 (7th. Cir. 2004). An
attorney's performance is objectively inadequate only if “he or
she fails to argue an issue that is both obvious and clearly
stronger than the issues raised.” ld;_ (citations omitted).
Prejudice is shown where there is a reasonable probability that
but for counsel's omission, the petitioner “would have
prevailed on his appeal.” Smith, 528 U.S. at 285-96.
The Court need not decide whether Shella was ineffective in
failing to argue that the Court’s brief statements regarding
recidivism rates and treatment of sex offenders were not
...2]__.
supported by any specific evidence in the record, because it
concludes that, in any event, Petitioner cannot show prejudice.
As discussed, to establish prejudice, Lombard must show a
reasonable probability that, had Shella challenged the Court’s
statements about the efficacy of treatment programs on appeal,
“the result of the appeal would have been different.” United
States v. Cook, 22 F. App'x 3 (D.C. Cir. 2001) (emphasis added)
(citation omitted). Central to this determination is the
standard of review that would have applied on appeal. Where a
defendant raises an argument on appeal that was not raised
before the district court, as was the case here, the Court of
Appeals reviews the district court proceedings for “plain
error.” See United States v. Terrell, 696 F.3d 1257, 1260 (D.C.
Cir. 2012). Error is “p1ain” if, at the time it was made, a
“clear precedent in the Supreme Court or this circuit
established its erroneous character.” ld; (citation omitted).
lt is well-established that a “district court is due
substantial deference in its fact-based sentencing
determinations” and is given a “wide latitude to decide what
type of proof is, or is not, sufficiently trustworthy to enter
into the sentencing ca1culus.” United States v. Cunningham, 201
F.3d 20, 26 (1st Cir. 2000) (citations omitted). Further, a
“court may consider relevant information without regard to its
admissibility under the rules of evidence applicable at trial,
_22_
provided that the information has sufficient indicia of
reliability to support its probable accuracy.” United States v.
Pletnyov, 525 F. App'x 1, 2 (D.C. Cir. 2013) (citing U.S.S.G. §
6A1.3).
Against this backdrop, Petitioner has not cited any “clear
precedent” in the Supreme Court or this Circuit holding that a
district court may not rely, in fashioning a within-Guidelines
sentence, on its general awareness regarding recidivisn\ rates
and the usefulness of treatment programs in protecting the
public from future offenses.
Nor has Petitioner presented any information whatsoever
suggesting that the Court’s concerns regarding recidivism were
erroneous, inaccurate, or unre1iable. To the contrary, the
Court’s concerns are supported by substantial authority. §eeL
e.g., Smith v. Doe, 538 U.S. 84, 103 (2003) (“The risk of
recidivism. posed by sex offenders is frightening' and high.”)
(citations omitted); McKune v. Lile, 536 U.S. 24, 33 (2002)
(noting that “[w]hen_ convicted sex offenders reenter society,
they are much more likely than any other type of offender to be
rearrested for a new rape or sexual assault”); United States v.
lrey, 612 F.3d 1160, 1214 (11th Cir. 2010) (“[T]he threat of
recidivi3n by a pedophile who has sexually abused a child is
appal1ing.”) (citation and quotation marks omitted); United
States v. Allison, 447 F.3d 402, 405-06 (5th Cir.2006)
_23_
(“Congress explicitly recognized the high rate of recidivism in
convicted sex offenders, especially child sex offenders.”).
Consequently, Petitioner‘ has failed to show that the Court’s
consideration of recidivism and treatment constituted “plain
error.”
Moreover, a finding of plain error does not itself warrant
reversal on appeal. The Court of Appeals will grant relief only
if the error affected the defendant's “substantial rights.”
Terrell, 696 F.3d at 1263 (citations omitted).6 An error affects
a defendant's substantial rights if there is a “reasonable
likelihood” that it affected the final outcome of the case. ld;
The Court’s concerns regarding recidivisn1 rates were not
only supported by substantial authority, they also were only one
of many considerations undergirding the Court’s sentence.
Lombard's sentence was grounded primarily on a variety of case-
specific findings that were completely independent from any
considerations of sex offenders in general. These included: (1)
the nature of Lombard's offense, which_ the Court found_ to be
6 A third and final element of plain error review is whether the
district court's error “seriously affects the fairness,
integrity or public reputation of judicial proceedings.”
Terrell, 696 F.3d at 1263 (citing United States v. Olano, 507
U.S. 725, 732 (1993)). However, our Court of Appeals has held
that this element is typically met where a defendant shows plain
error at sentencing because “‘keeping a defendant in prison
longer for improper reasons' affects the fairness, integrity,
and public reputation of judicial proceedings.” ld. (quoting lp
re Sealed Case, 573 F.3d 844, 852-53 (D.C. Cir. 2009)).
...24_
“one of the worst offenses” it had ever seen after “many, many
years on the bench”; (2) the fact that Lombard's conduct was
highly organized and deliberate, occurred in spite of his
extensive psychological and psychosocial training, and had been
ongoing for well over a year; and (3) the prospect of long-
lasting harm to Lombard's adopted child, as well as the rest of
his family. ln other words, notwithstanding the Court’s brief
consideration of the general efficacy of treatment for sex
offenders, Petitioner's sentence was overwhelmingly based on
case-specific considerations with substantial support in the
record,
ln other words, any error would not have affected
Petitioner's substantial rights because the Court’s concerns
were firmly grounded in legal authority readily accessible to
Petitioner and were only a small part of a comprehensive set of
case-specific considerations supporting Petitioner’s sentence.
For the foregoing reasons, the Court concludes that
Petitioner has not demonstrated prejudice as to his claim for
ineffectiveness of appellate counsel and, therefore, cannot
prevail on that claim.7
7 ln addition to the three claims discussed, Lombard also brings
a fourth claim arguing that he was prejudiced by the cumulative
impact of his counsel's deficiencies during plea negotiations,
at sentencing, and on direct appeal. Pet. at 6. Assuming such
a theory applies to ineffective representation at three discrete
stages of the criminal process, it does not apply here because,
_25_.
D. Lombard's Request for an Evidentiary Hearing Is Denied
As discussed, a hearing is not required under § 2255 where
the “files and the records of the case conclusively show that
the prisoner is entitled to no relief/' 28 U.S.C. § 2255(b).
As our Court of .Appeals has explained, a hearing' is required
“[o]nly where the § 2255 motion raises ‘detailed and specific’
factual allegations whose resolution requires information
outside of the record or the judge's ‘personal knowledge or
recollection[.]’” Pollard, 959 F.2d at 1031 (citations
omitted).
The Court concludes that no evidentiary hearing is
required. As discussed above, Lombard's ineffectiveness claim
regarding plea negotiations can be resolved without an
evidentiary hearing because he fails to identify any specific
way in which Shella's performance was objectively deficient or
prejudicial. Similarly, his ineffectiveness claim based on
Shella's failure to obtain. a psychosexual evaluation and his
appellate ineffectiveness claim can both be disposed of without
an evidentiary hearing due to his inability to show prejudice.8
as discussed, Lombard has not identified any deficiency during
the plea process, and any deficiencies at sentencing and on
appeal were not prejudicial.
8 Petitioner acknowledges that there are no material factual
issues in dispute and_ “[t]he only purpose for an evidentiary
hearing . . . might be if the Court would choose to learn more
about Dr. lsele’s evaluation of Mr. Lombard to decide whether
counsel's failure to present this evaluation undermines
_ 26 _
§ee Burroughs, 613 F.3d at 239 (without “any substantial issue
that requires a determination of facts” no evidentiary hearing
is required to deny claim under § 2255). Consequently,
Petitioner's request for an evidentiary hearing shall be denied.9
IV. Conclusion
For the foregoing reasons, Petitioner's Motion to Vacate is
denied. An Order shall accompany this Memorandum Opinion.
May 23, 2014 Gladys Kes§ler/ /
United States District Judge
CoEies to: Attorneys of Record via ECF
confidence that the Court would have imposed a sentence above
the 20 years recommended by the prosecutor.” Pet’r’s 5/14 Resp.
at 1 [Dkt. No. 54]. For the reasons discussed at length in part
lll.B of this Memorandum Opinion, the Court does not need
further information regarding Dr. lsele’s evaluation to
determine that Lombard was not prejudiced by Shella's failure to
obtain a psychosexual evaluation at sentencing.
°For the same reasons, Lombard's request that the Court permit
him the opportunity to depose Shella and the prosecutor at trial
is also denied.
_27_