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Himmelreich v. United States

October 20, 2010


The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court

(Chief Judge Kane)


On April 3, 2009, Walter Himmelreich filed a motion to vacate under 28 U.S.C. § 2255. (Doc. No. 135.) The Court issued a standard Miller-Mason notice of election, to which Himmelreich responded that he wished to withdraw his initial filing and file one all-inclusive petition. (Doc. No. 138.) On July 31, 2009, Himmelreich filed a new motion to vacate under 28 U.S.C. § 2255, which, after numerous extensions of time for the Government's response, is now ripe before the Court for disposition. Himmelreich also filed a motion to supplement his motion, which has not yet been ruled on. (Doc. No. 162.) For the reasons that follow, both motions will be denied.


On November 9, 2004, Himmelreich was arrested in Delaware County, Pennsylvania, after making arrangements to meet with a woman whom he believed would allow him to perform sex acts with her two minor daughters. The woman was an undercover agent, however, and Himmelreich was taken into custody when he arrived at the designated meeting place. After being informed of his Miranda rights, Himmelreich voluntarily waived those rights and gave a recorded statement to police in which he admitted that he had used the internet to discuss the possibility of engaging in sex acts with minor children. He also admitted that he had engaged in sexual contact with his six-year-old daughter and had taken nude pictures of her. A warrant to search his home was issued on the basis of his confession. The subsequent search yielded evidence that he had sent the photographs to at least one other individual.

Himmelreich was indicted in federal court on June 1, 2005, for knowingly producing, possessing, and distributing child pornography. (Doc. No. 1.) He entered a plea of not guilty. (Doc. No. 15.) On August 9, 2005, Attorney Frederick Ulrich was appointed to represent Himmelreich. On October 21, 2005, Himmelreich moved to dismiss the charges for violation of the Speedy Trial Act, moved to suppress the confession as obtained in violation of the Fifth Amendment, and moved to suppress evidence as obtained in violation of the Fourth Amendment. (Doc. Nos. 29, 31, 33.) On June 16, 2006, the motions were denied. (Doc. No. 95.) On September 6, 2006, Himmelreich accepted a plea agreement, and two days later, he pleaded guilty to Count 1 of the Second Superseding Indictment: production of child pornography in violation of 18 U.S.C. § 2251(b). (Doc. Nos. 101, 103.) On December 18, 2006, Himmelreich was sentenced to 240 months imprisonment, a $1000 fine, a $100 special assessment, and $102 in restitution. (Doc. Nos. 113, 114.)

Himmelreich timely appealed the sentence on December 27, 2006. (Doc. No. 115.) In the appeal, Himmelreich argued that the search warrant used to seize evidence from his house was unconstitutionally vague, that his indictment violated the Speedy Trial Act, and that the Court's upward variance was unreasonable because it was inadequately explained. All arguments were denied, and the sentence was affirmed on March 27, 2008. (Doc. No. 134-2.)


Himmelreich's § 2255 motion argues that his sentence should be corrected for numerous reasons. Though Himmelreich does not explicitly attribute the majority of his alleged errors to ineffective assistance of counsel, the Court will favorably construe his pro se motion by interpreting the otherwise procedurally defaulted claims as ineffective assistance claims.*fn1 See Montgomery v. Pinchak, 294 F.3d 492, 500 (3d Cir. 2002) (requiring liberal interpretation of pro se litigant filings).

To obtain relief under § 2255 for an ineffective assistance of counsel claim, a defendant must demonstrate that 1) the attorney's conduct was deficient and 2) that he was prejudiced by the deficiency. United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To be deficient, defense counsel's performance must have fallen "below an objective standard of reasonableness." Outten v. Kearney, 464 F.3d 401, 414 (3d Cir. 2006) (citing Strickland, 466 U.S. at 687-88). There is a "strong presumption" that counsel acted reasonably, and "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 689-90. In cases where the ineffective assistance of counsel claim involves a guilty plea, the defendant must demonstrate that there is a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). If the Court does not hold an evidentiary hearing, all non-frivolous factual allegations must be taken as true. United States v. Dawson, 857 F.2d 923, 927 (3d Cir. 1988).

A. Arguments Arising Prior to Entry of the Guilt Plea

The Court begins with consideration of the multiple allegations that Himmelreich's constitutional rights were violated in the pre-guilty plea phase of the proceedings. Specifically, Himmelreich raises the following arguments: the indictment was invalid because it did not state a specific date on which the misconduct allegedly occurred; the indictment violated the Eleventh Amendment; the indictment violated the Double Jeopardy Clause of the Fifth Amendment; his due process rights were violated because was not given a copy of the indictment and did not see the grand jury proceedings; his arraignment occurred too long after the indictment; no evidence related to the chain of custody of the evidence was presented at the suppression hearing; the Speedy Trial Act was violated; his person, vehicle, and home were improperly searched; the Government failed to turn over Brady evidence; Attorney Ulrich did not advise him of the possibility of an Alford plea; Ulrich did not present a key witness at the suppression hearing; the Interstate Agreement on Detainers Act ("IADA") was violated; and the officers conspired to and committed perjury at his suppression hearing.

The Court's analysis must begin by discussing the validity of the plea because a valid guilty plea waives all non-jurisdictional and not expressly-preserved claims occurring prior thereto. Washington v. Sobina, 475 F.3d 162, 165 (3d Cir. 2007) ("It is well established that a criminal defendant's ...

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