United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RODNEY W. SIPPEL, District Judge.
Petitioner Randall Replogle has filed a motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. Replogle alleges (1) that there was an unlawful search and seizure during the underlying investigation of his case, (2) that his arrest was unlawful, (3) that his statements to police were obtained in violation of his constitutional right against self-incrimination, and (4) that his attorney provided ineffective assistance of counsel. Replogle has also filed a motion for the appointment of counsel. For the reasons set forth below, I will deny Replogle's motions.
The following facts are established by Replogle's plea agreement entered in the underlying criminal case:
On November 18, 2005, in the Eastern District of Missouri, Defendant Randall Replogle persuaded and coerced G.R. to engage in sexually explicit conduct, that is, defendant persuaded and coerced G.R. to lasciviously display her genitals. Defendant videotaped the sexually explicit conduct using a VHS-C videotape that was manufactured outside the state of Missouri and therefore traveled in interstate commerce. G.R. was in defendant's care and control when defendant videotaped her. G.R. was 12 years old when defendant persuaded and coerced her to engage in the sexual conduct so that defendant could videotape the sexual conduct.
Case No. 4:08 CR 505 RWS [Doc. # 43, p. 8].
On August 21, 2008, Replogle was indicted on three counts of Production of Child Pornography in violation of Title 18, United States Code, Section 2251(a). On August 13, 2009, following a psychological examination, then Magistrate Judge Audrey Fleissig concluded that Replogle was mentally competent to stand trial.
On August 19, 2009, Replogle's Federal Public Defender filed a Motion to Suppress Evidence and Statements on behalf of Replogle. Specifically, the motion sought to suppress evidence obtained pursuant to a warrant to search Replogle's residence, statements Replogle made to officers after his arrest, evidence obtained as a result of a search of Replogle's computers and electronic media, and evidence obtained as a result of a search and seizure of a video camera. After an evidentiary hearing, the Magistrate Judge filed a Report and Recommendation recommending denial of the motion to suppress evidence and statements. Replogle timely filed objections to the Report and Recommendation.
On November 19, 2009, Replogle pleaded guilty to Count One of the indictment, pursuant to a written plea agreement with the Assistant United States Attorney ("AUSA"). In exchange for his plea of guilty, the AUSA agreed to move to dismiss the remaining counts and agreed not to bring any further federal charges related to Replogle's production of child pornography as charged in the indictment.
At the change of plea hearing, Replogle announced that he was ready to plead guilty. Case No. 4:08 CR 505 RWS [Doc. # 62, p. 3]. Replogle stated that his attorney had read the plea agreement to him word for word, that he understood what was in the plea agreement, and that everything in the plea agreement was true. Id. at 4, 9. Replogle further acknowledged that he was giving up his right to trial and agreed to waive his right to contest his conviction or sentence, with certain limited exceptions. Additionally, Replogle affirmed that he had had enough time to talk about his case with his attorney and that he was satisfied with her representation of him. Id. at 7. After finding that Replogle was competent to proceed, I advised Replogle that the maximum possible sentence for the crime to which he was pleading guilty was a prison term of not less than 15 years and not more than 30 years. Replogle said that he understood. Id. at 17. Replogle also said he understood that if he received a sentence that was more severe than he had hoped for, he would not be able to withdraw his guilty plea. Id.
On February 26, 2010, Replogle appeared in court for sentencing. At that time, Replogle claimed that he had not committed the crime to which he had pleaded guilty and that he wanted a trial. Case No. 4:08 CR 505 RWS [Doc. # 59, p. 7-8]. Based on my finding that Replogle was competent at the time he entered his guilty plea, that his plea was knowing and voluntary, and that he had established no fair and just reason to withdraw his plea, I did not allow Replogle to withdraw his guilty plea. Id. at 16-18. I sentenced Replogle to 30 years in prison.
Replogle filed a direct appeal of his sentence to the United States Court of Appeals for the Eighth Circuit. In his direct appeal, Replogle argued that I erred in applying two sentencing enhancements under the guidelines, in failing to address the sentencing factors under 18 U.S.C. § 3553(a), and in imposing an unreasonable sentence. The Eighth Circuit affirmed the sentence. United States v. Replogle , 628 F.3d 1026 (8th Cir. 2011). A petition for certiorari was granted by the Supreme Court and the matter was remanded to the Eighth Circuit for further consideration in light of Tapia v. United States , 131 S.Ct. 2382 (2011). Replogle v. United States , 132 S.Ct. 401 (2011). On remand, the Eighth Circuit again affirmed the sentence. United States v. Replogle , 678 F.3d 940 (8th Cir. 2012), cert. denied, 133 S.Ct. 771 (2012). In his direct appeal to the Eighth Circuit, Replogle never raised any of the matters raised in his pretrial motion to suppress evidence and statements.
Replogle filed the present motion to vacate, set aside or correct his sentence on or about July 25, 2013. Replogle raises a number of grounds in support of his motion. Replogle appears to claim (1) that there was an unlawful search and seizure during the underlying investigation of his case, (2) that his arrest was unlawful, (3) that his statements to police were obtained in violation of his constitutional right against self-incrimination, and (4) that his attorney provided ineffective assistance by not advising him ...