United States District Court, M.D. Pennsylvania
William W. Caldwell, United States District Judge.
We are considering a pro se motion filed by Defendant, Jeffrey Schmutzler, pursuant to 28 U.S.C. § 2255. Claiming numerous constitutional violations, Defendant asserts that his conviction and sentence should be vacated. For the reasons discussed below, we will deny Defendant’s motion.
On April 3, 2013, Defendant was indicted for knowingly receiving and possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(B) and (a)(5)(B), respectively. (Doc. 19). On July 29, 2013, represented by the Federal Public Defenders Office, Defendant entered a plea of guilty to count one of the indictment. (Doc. 55). Prior to sentencing, Defendant, represented by private counsel, filed a motion to withdraw his guilty plea. (Doc. 53). He argued that he should be permitted to withdraw his plea because his public defender failed to inform him of his right to challenge the indictment on grounds of selective prosecution. (Doc. 55). Defendant asserted that most child pornography offenses are prosecuted in state court and that he was only selected for prosecution in federal court because he was a teacher. (Id.). The Government, in response, claimed that Defendant was prosecuted in federal court because his case was part of a federal investigation and therefore subject to federal law, guidelines, and sentencing. (Doc. 56 at 14-15). This Court, finding no factual support or legal merit to Defendant’s argument, denied the motion. (Doc. 57). Thereafter, we sentenced Defendant to 108 months of imprisonment. (Doc. 67). On August 1, 2014, Defendant filed a direct appeal. (Doc. 66). The Third Circuit affirmed. (Id.).
In his 2255 motion, Defendant makes two arguments in an attempt to vacate his conviction and sentence. First, he again claims that he was selectively prosecuted. (Doc. 72). Second, he asserts that one of his privately retained attorneys provided ineffective assistance. (Id.).
A. Standard of Review
Under 28 U.S.C. § 2255, a federal prisoner may file a motion challenging his conviction or sentence as being in violation of the federal constitution or federal law. See Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009). Pursuant to Rule 4(b) of the Rules Governing § 2255 proceedings, “[t]he judge that receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . . .”
B. Selective Prosecution
This time, instead of arguing that he was prosecuted because of his occupation, Defendant claims that the Government’s decision to prosecute him in federal court, as opposed to state court, was based solely on the fact that he was implicated in a federal investigation. (Doc. 72). According to Defendant, this is an arbitrary factor and amounts to selective prosecution. (Id.). On this selective prosecution claim, Defendant hangs five separate grounds for relief: (1) he had ineffective assistance of counsel because his public defender never raised the selective prosecution defense; (2) his federal sentence violates the Equal Protection Clause because it was the result of unconstitutionally disparate treatment; (3) his substantive due process rights were violated because his federal sentence deprives him of his personal liberty longer than if he had been subject to state prosecution; (4) his procedural due process rights were violated because the Government did not adhere to its Petite Policy; and (5) the federal government interfered in the state’s authority to prosecute child pornography offenses, which violates the concept of federalism. (Id.). We find that Defendant’s selective prosecution claim does not entitle him to relief and his five grounds for relief must fail.
Because the Constitution vests the duty to enforce the Nation’s laws in the Executive Branch, prosecutors have broad discretion in deciding against whom the laws will be enforced, and those decision are supported by a presumption of regularity. United States v. Armstrong, 517 U.S. 456, 464 (1996). A claim of selective prosecution asks a court to invade this “special province” of the Executive, dispel the presumption of regularity, and find that a prosecutorial decision violates the Constitution. Id. Accordingly, the burden is a demanding one. Id. at 463. To establish a claim of selective prosecution, the defendant must show by clear evidence that: (1) similarly situated individuals have not been prosecuted; and (2) that the decision to prosecute was made on the basis of an unjustifiable standard, such as race, religion, or some other arbitrary factor. Id.; United States v. Taylor, 686 F.3d 182, 196 (3d Cir. 2012).
To show that similarly situated individuals were not prosecuted, Defendant provides information on numerous individuals prosecuted by state authorities, not federal authorities, for possessing child pornography. This is the same type of evidence that Defendant produced in his motion to withdraw his guilty plea and in his direct appeal. In those proceedings, both we and the Third Circuit determined that the state defendants were not similarly situated to Defendant because there was “no indication whether they acted in a manner punishable by federal law, were implicated in similar federal investigations, or ever faced federal prosecution.” (Doc. 57 at 5 n.2; Doc. 71 at 4). To avoid the same conclusion in this motion, Defendant produces information showing that each defendant used the internet or United States postal system to commit the offense. He argues that, pursuant to the Third Circuit’s prior opinion (Doc. 71), these individuals are similarly situated to him because they possessed child pornography in a manner punishable by federal law. We disagree.
It is well-established that an individual is similarly situated only if she is “alike in all relevant aspects.” Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008). The Third Circuit’s prior opinion told us what the relevant aspects of Defendant’s prosecution are: (1) acted in a manner punishable by federal law; (2) was implicated in a similar federal investigation; and (3) faced federal prosecution. (Doc. 71 at 4). Therefore, to establish that his comparators are similarly situated, Defendant must show that they are alike in all of these relevant aspects, not just that they are alike with respect to relative culpability.Startzell, 533 F.3d at 203. He fails to do so – the comparators were investigated and ...