United States District Court, D. Maryland
L. Russell, III United States District Judge
November 17, 2008, a jury in the United States District Court
for the District of Maryland convicted the Petitioner,
Christopher Jude Blauvelt, on one count of production of
child pornography in violation of 18 U.S.C. § 2251
(Count 1); one count of possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B) & (b)(2)
(Count 2); two counts of distributing a controlled dangerous
substance to a minor, in violation of 21 U.S.C. §
841(a)(1) and 21 U.S.C. § 859(a) (Counts 3 and 5); and
one count of possession of a controlled substance, in
violation of 21 U.S.C. § 844(a) (Count 7). (ECF No. 76).
The Court sentenced Blauvelt to 293 months of imprisonment on
June 22, 2009. (ECF No. 111).
9, 2011, the United States Court of Appeals for the Fourth
Circuit affirmed Blauvelt's conviction. United States
v. Blauvelt, 638 F.3d, 281 (4th Cir. 2011). On October
3, 2011, the Supreme Court of the United States denied
Blauvelt's Petition for Writ of Certiorari. Blauvelt
v. United States, 132 S.Ct. 111 (2011). October 1, 2012,
Blauvelt filed his Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside or Correct his sentence. (ECF No. 129). No
hearing is necessary. See Rule 8 of the Rules
Governing § 2255 Proceedings. For the reasons that
follow, the Court will deny the Motion.
to being advised that Blauvelt sent pornographic photographs
of a young girl to another minor, the Baltimore County Police
Department conducted an investigation of Blauvelt for
distribution of child pornography. On May 29, 2007, a grand
jury sitting in Baltimore County, Maryland charged Blauvelt
in a 14-count indictment with inter alia, possession
with intent to distribute child pornography. The State case
was eventually referred to the United States Attorney's
Office for the District of Maryland for federal prosecution.
his initial detention while awaiting trial, Blauvelt retained
Dr. Neil Blumberg for a psychological evaluation. United
States v. Blauvelt, 2008 WL 4755840 at *1-2 (D.Md. Oct.
28, 2008). Dr. Blumberg testified at a detention hearing on
behalf of Blauvelt, who sought release pending trial.
Id. Dr. Blumberg testified that he did not believe
Blauvelt posed a significant threat to the public and that
Blauvelt had expressed considerable remorse for his conduct.
Id. at *4. Further, Dr. Blumberg testified that
Blauvelt admitted that he provided minor victims with drugs
and engaged in sexual activity with one of them. Id.
at *6. The trial court held that Dr. Blumberg's testimony
would be admissible as impeachment evidence if Blauvelt chose
to testify at trial. (ECF No. 119).
the course of the trial, the government introduced
significant evidence of Blauvelt's guilt. The evidence
included, but was not limited to, videos of child pornography
on Blauvelt's computer; videos and still photographs of
Blauvelt engaged in sexual activity with the minor victim
(“BR”) on his digital media card; photographs of
BR and another minor taken with Blauvelt's cell phone;
testimony of BR that she is the girl and Blauvelt is the man
depicted in the videos and stills on the digital media card;
testimony of three other adult witnesses who identified
Blauvelt as being in the videos and stills based upon his
voice, genitals, and mannerisms during intercourse;
identification by BR and two other females of the room
depicted in the stills and video as the bedroom of a house
Blauvelt rented in Dundalk, Maryland. (ECF Nos. 121-122).
Blauvelt's sentencing, defense counsel elicited testimony
from Blauvelt's stepfather, aunt, and mother. (ECF No.
126). Each witness testified that as a result of a 2004
motorcycle accident, Blauvelt suffered from direct,
pronounced, and deleterious mental-health issues.
(Id.). Dr. Blumberg also testified on Blauvelt's
behalf, opining that Blauvelt suffered from a variety of
mental illnesses, including substance abuse, post-traumatic
stress disorder, major depressive or bi-polar disorder, and
paraphilia. (Id.). Dr. Blumberg also testified that
the 2004 motorcycle accident exacerbated Blauvelt's
mental health condition. (Id.).
asserts he is entitled to relief under 28 U.S.C. § 2255
based on four grounds: (1) he suffered ineffective assistance
of counsel during his State proceeding because his counsel
failed to convey a plea offer; (2) he was not allowed to
testify during his federal trial; (3) the failure to seek a
neurological evaluation prior to the sentencing hearing
violated his Sixth Amendment right to counsel; and (4) he is
actually innocent of the crimes for which he was convicted.
has the burden of proving by a preponderance of the evidence
that he is entitled to relief. Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958). To be
constitutionally ineffective in violation of Blauvelt's
Sixth Amendment rights, his attorney's performance must
(1) fall below “an objective standard of
reasonableness” and (2) have so prejudiced the defense
that, “but for counsel's unprofessional errors, the
result of the proceedings would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984).
The reasonableness of a lawyer's trial performance must
be evaluated from counsel's perspective at the time of
the alleged error in light of all the circumstances.
Id. at 689. Judicial scrutiny of counsel's
performance must be highly deferential. Id. Further,
even assuming an error occurred, the judgment of a criminal
proceeding should not be set aside if the error had no effect
on the judgment. Id. at 691.
Sixth Amendment right to effective assistance of counsel
attaches only after adversarial proceedings commence.
Kirby v. Illinois, 406 U.S. 682, 688 (1972). As a
result, the Sixth Amendment right to counsel does not attach
in federal court until the United States initiates
adversarial judicial proceedings against the accused.
United States v. Alvarado, 440 F.3d 191, 198, (4th
Cir. 2006). The law is clear that when charged with a state
violation in state court, the accused has no Sixth Amendment
right to counsel in a federal court because the right has not
the aforementioned principles to the present case, the Court
finds that it lacks jurisdiction to review Blauvelt's
claim related to the failure to convey a plea offer that
occurred prior to the initiation of charges in the United
States District Court for the District of Maryland by the
United States. Assuming that a plea offer was not conveyed by
counsel in state court, there is no evidence in this record
that the United States was a party to Blauvelt's state
court plea agreement to such an extent that would allow the
Blauvelt to bring his claim within the ambit of this
Court's jurisdiction. Further, even if such a claim could
be subject to this Court's jurisdiction, Blauvelt has not
established that but for the ineffective advice of counsel
there would have been a reasonable probability that he was
prejudiced by such conduct.
as to Blauvelt's claim that his counsel was
constitutionally ineffective for not permitting him to
testify at trial, the record makes perfectly clear that
Blauvelt was aware of his right to testify and validly waived
that right by declining to testify. (See ECF No.
123). And, once again, even assuming that the record is
unclear regarding his ...