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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RANDALL V. ROBERTS, 

 

 Petitioner, Case No. 2:14-cvv-01208 

 Crim. No. 2:12-cr-131 

 v. Judge Watson 

 Magistrate Judge King 

UNITED STATES OF AMERICA, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner, a federal prisoner, brings this motion to vacate, set aside or correct sentence 

pursuant to 28 U.S.C. § 2255. This matter is before the Court on the Motion to Vacate, ECF No. 

41, the Affidavit[s] and Memorandum in Support, ECF Nos. 41, 44, 46, 47, the Return of Writ, 

ECF No. 48, Petitioner’s Reply, ECF No. 51, and the exhibits of the parties. For the reasons that 

follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED. 

 Petitioner’s Renewed Request for Affidavit from Counsel. ECF No. 57, is DENIED. 

Facts and Procedural History 

 On June 29, 2012, Petitioner pleaded guilty, pursuant to the terms of his Plea Agreement, 

to coercion and enticement of a minor to engage in unlawful sexual activity, in violation of 18 

U.S.C. § 2422(b). ECF Nos. 15, 18. On December 12, 2012, the District Court imposed a 

sentence of 188 months’ imprisonment plus 15 years’ supervised release. ECF No. 31. On 

August 9, 2013, the United States Court of Appeals for the Sixth Circuit affirmed the Judgment

of this Court. See Order, ECF No. 37. 

On August 11, 2014, Petitioner filed the Motion to Vacate, alleging that he is innocent in 

view of a lack of proof establishing his knowledge of the age of the alleged victim, who actively 

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misled him (claim one); that he did not use a facility or means of interstate commerce to commit 

the crime (claim two); that he lacked criminal intent and that his use of a computer or phone was 

not connected to the offense charged (claim three); that he was denied the effective assistance of 

counsel and was sentenced in violation of the Plea Agreement (claims four and five); that the 

government failed to disclose exculpatory evidence (claim six); that his recommended sentence 

under the advisory sentencing guidelines was improperly enhanced (claim seven); that police 

unconstitutionally obtained his statements and other evidence against him (claim eight); and that 

police illegally and in bad faith obtained the search warrant in this case (claim nine). 

Respondent contends that Petitioner’s claims are either waived or without merit. 

Standard of Review 

In order to obtain relief under 28 U.S.C. § 2255, a defendant must establish the denial of 

a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair 

procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 

627, 630 (6th Cir. 1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal 

sentence was imposed in violation of the Constitution or laws of the United States or when the 

trial court lacked jurisdiction, or when the sentence is in excess of the maximum sentence 

allowed by law or is “otherwise subject to collateral attack.” United States v. Jalili, 925 F.2d 

889, 893 (6th Cir. 1991). Relief is also available when “the claimed error was a ‘fundamental 

defect which inherently results in a complete miscarriage of justice,’” Davis v. United States, 417 

U.S. 333, 346 (1974)(quoting Hill v. United States, 368 U.S. 424, 428–429 (1962)); see also 

Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). Non-constitutional claims not raised 

at trial or on direct appeal are waived on collateral review except where the errors amount to 

something akin to a denial of due process. Mistakes in the application of the sentencing 

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guidelines will rarely, if ever, warrant relief from the consequences of waiver. Grant v. United 

States, 72 F.3d 503, 506 (6th Cir. 1996). 

It is well-established that a § 2255 motion to vacate “is not a substitute for a direct 

appeal.” Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013)(quoting Regalado v. United 

States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167–68 

(1982)). Accordingly, claims that could have been raised on direct appeal, but were not, will not 

be entertained in a motion to vacate under § 2255 unless the petitioner shows either (1) cause and 

actual prejudice sufficient to excuse his failure to raise the claims on direct appeal or (2) that he 

is “actually innocent” of the crime. Ray, 721 F.3d at 761 (citing Bousley v. United States, 523 

U.S. 614, 622 (1998))(internal citations omitted). “To obtain collateral relief a prisoner must 

clear a significantly higher hurdle than would exist on direct appeal” Frady, 456 U.S. at 166. 

Claims One, Two, Three, and Four 

In his first three claims, Petitioner alleges that he is innocent, or that the evidence is 

insufficient to sustain his conviction, because he did not know the age of the alleged victim, 

because his actions did not involve interstate commerce, and because he lacked the requisite 

criminal intent. Petitioner has submitted an Affidavit in support of these claims. ECF No. 44.1

 

In his fourth claim, Petitioner alleges that he was denied the effective assistance of counsel. 

A claim of insufficiency of the evidence does not provide a basis for relief in proceedings 

under 28 U.S.C. § 2255. “The United States Court of Appeals for the Sixth Circuit has 

repeatedly and consistently held that the ‘sufficiency of the evidence to support a conviction may 

not be collaterally reviewed on a § 2255 proceeding’ and that such a claim must be raised on 

direct appeal.” Mitchell v. United States, Nos. 2:05-CV-274; 2:04-CR-02, 2007 WL 325762, at 

                                                            

1 Petitioner states that, at some point, the alleged victim stated that she was 15 years of age; however, Petitioner 

thought that this was a “typo.” Affidavit, ECF No. 44, PageID# 203. 

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*3 (E.D. Tenn. Jan. 31, 2007)(quoting United States v. Osburne, 415 F.2d 1021, 1024 (6th Cir. 

1969). See also Stephan v. United States, 496 F.2d 527, 528-29 (6th Cir. 1974). Moreover, by 

his guilty plea, Petitioner has already admitted his guilt to the offense. A defendant is ordinarily 

bound by the representations that he makes under oath during a plea colloquy. Blackledge v. 

Allison, 431 U.S. 63, 73-74 (1977). 

[T]he representations of the defendant, his lawyer, and the 

prosecutor at such a hearing, as well as any findings made by the 

judge accepting the plea, constitute a formidable barrier in any 

subsequent collateral proceedings. Solemn declarations in open 

court carry a strong presumption of verity. The subsequent 

presentation of conclusory allegations unsupported by specifics is 

subject to summary dismissal, as are contentions that in the face of 

the record are wholly incredible. 

Id. Absent a showing that his guilty plea was not knowing, intelligent and voluntary, Petitioner’s 

claims in this regards have been waived by entry of his guilty plea. See United States v. Broce,

488 U.S. 563, 569 (1989); Tollett v. Henderson, 411 U.S. 258, 266-67 (1973); United States v. 

Ashe, 47 F.3d 770, 775–76 (6th Cir. 1995); United States v. Freed, 688 F.2d 24, 25 (6th Cir. 

1982). 

Petitioner’s current protestations of innocence are belied by his statements at the guilty 

plea hearing, see Transcript of Plea Proceedings, ECF No. 35 (“Transcript”), PageID# 136-40, 

and the record in this case establishes a knowing, intelligent and voluntary guilty plea. At his 

guilty plea hearing, Petitioner testified under oath. Id., at PageID# 122. He denied being under 

the influence of drugs of abuse or medications. Id., at PageID# 123. He said he understood the 

charge against him and that he had discussed potential defenses to the charge with his defense 

counsel. Id. at PageID# 123-24. He understood that he faced a mandatory minimum term of ten 

years in prison up to a term of life, id. at PageID# 124-25, and that he had discussed application 

of the advisory United States Sentencing Guidelines with his attorney. Id. at PageID# 130. He 

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denied having been threatened or coerced into pleading guilty. Id. at PageID# 133. He admitted 

his guilt to the offense charged. Id. at PageID# 133. He understood all of the rights that he 

waived by the entry of his guilty plea. Id. at PageID# 133-34. He agreed to the truth of the 

following facts: 

In 2011 Randall Roberts met a then 14-year-old child online via a 

social networking website called vampirefreaks.com. The minor 

and Roberts communicated via chats on vampirefreaks.com and 

later exchanged cell phone numbers and communicated through 

text messages and cell phone conversations. In late December 

2011, the minor child agreed to meet and go to Roberts’ home for 

the purpose of listening to music. Shortly after arriving at Roberts’ 

home, Roberts provided the child with alcohol. Roberts then 

coerced the child to perform oral sex on him. 

Subsequent to the December 2011 incident, Roberts continued to 

communicate with the child via vampirefreaks.com and cellular 

phone. During these communications, Roberts and the child 

discussed future meetings and continued sexual activity. At 

various times in December 2011 and January 2012, Roberts 

threatened to send an e-mail that would get the child in trouble if 

the child did not arrive for their planned meetings. The child said 

that since December 2011, Roberts took the child to his home on at 

least four occasions, and on each of these occasions the child was 

sexually assaulted. Additionally, on at least seven occasions since 

December of 2011, Roberts had met the child at a location near the 

child’s residence in the morning prior to going to school and 

coerced the child to perform oral sex on him in his vehicle. 

In May 2012, law enforcement officers were called to the 

residence of the child after a relative of the child discovered text 

messages on the child’s phone. Officers reviewed the text 

messages on the child’s cell phone and discovered a conversation 

with a cell phone number that was discovered to belong to Roberts. 

During the course of the text messages, Roberts indicated that he 

wished to engage in sexual intercourse with the child on May 16, 

2012, and to have a continued sexual relationship until July of 

2012, at which point the child would be free. In this text 

conversation, Roberts specifically arranged to meet the child at a 

specified location on May 16, 2012, at 7:05 a.m. to engage in 

sexual acts. 

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Law enforcement officers thereafter obtained the child’s cell phone 

and posed as the child while engaging in text conversations with 

Roberts in early May. In a text message regarding the May 16, 

2012, meeting, Roberts instructed the child to wear clothing that 

was easy to get on and off. 

On May 16, 2012, at approximately 7:00 a.m., agents observed 

Roberts arriving at the location where he had planned to meet the 

child. Roberts sat in the parking lot of the meet location and 

waited for approximately 20 minutes. When the child did not 

arrive at the meet location, Roberts sent several text messages to 

the child’s cell phone. 

Law enforcement officers posing as the child responded that the 

child was unable to meet Roberts that morning. In the next 

conversation that followed, Roberts indicated that he was going to 

check up on the child and that he might do something if the child 

was lying about why the child could not meet him that morning. 

Roberts was then observed driving in what officers knew to be the 

direction of the child’s home and was stopped by law enforcement 

officers before he could arrive there. 

At the time of Roberts’ stop and arrest, officers seized a Toshiba 

laptop computer, a Motorola cell phone, and an IOMEGA external 

hard drive in Roberts’ vehicle. Forensic analysis of the external 

hard drive revealed the presence of approximately 39 videos that 

depicted minors engaged in sexually explicit conduct. Also 

located on the hard drive were two sexually explicit photographs of 

the minor child with whom Roberts had been communicating from 

December 2011 through May 2012. 

At the time of the foregoing activities, there was an open case with 

the Miami Township Police Department in which Roberts was 

under investigation for the rape of a minor female. 

All of the foregoing occurred in the Southern District of Ohio and 

involved communications and use of facilities of interstate 

commerce; that is, computers, the internet and cell phones. 

Id. at PageID# 135-138. Petitioner was given the opportunity for an off-the-record discussion 

with his counsel and agreed that these facts were an accurate account of the charge alleged. Id. 

at PageID# 138. The Court reviewed with Petitioner the elements of the offense charged. Id. at 

PageID# 139. Petitioner indicated that he understood. Id. at PageID# 139. He again admitted 

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his guilt to the offense. Id. The Court found that Petitioner was fully competent and capable of 

entering an informed plea, was aware of the nature of the charge and of consequences of the 

plea, and concluded that his plea of guilty was knowing and voluntary, supported by an 

independent basis in fact containing each of the essential elements of the offense. Id. at PageID# 

140. 

Petitioner alleges that he was denied the effective assistance of counsel because his 

attorney failed to investigate the case or to obtain exculpatory evidence. Memorandum in 

Support, ECF No. 47, PageID# 240. Specifically, Petitioner complains that his attorney failed to 

challenge inaccuracies in the Pre-sentence Investigation Report regarding the child’s 

misbehavior, self-scarring behavior, school performance, and relationships with other men. Id. 

He complains that his attorney failed to pursue a defense of mistake of age. “In a guilty plea 

context ‘the defendant must show 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.’ ” Campbell 

v. United States, 686 F.3d 353, 357 (6th Cir. 2012)(quoting Hill v. Lockhart, 474 U.S. at 59). 

Petitioner has not met this burden here. 

 Although Petitioner now argues that he did not know that the victim was a minor, given 

his previous admission of this fact, he cannot now claim that his attorney performed in a 

constitutionally inadequate manner by failing to raise the issue. See United States v. Hutsell, 

Nos. 5:12-cv-7202-JMH-CJS, 10-cr-78-JMH-CJS, 2015 WL 770324, at *6 (E.D. Ky. Feb. 20, 

2015)(where the petitioner admitted to distributing a certain quantity of drugs, defense counsel 

does not violate Strickland for failing to dispute that amount at sentencing). Even assuming the 

existence of evidence regarding the child’s self-destructive or problematic behavior, such 

evidence would not have assisted the defense. Petitioner does not indicate, and the record does 

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not reflect, the content of any portions of chat or telephone conversations that could have assisted 

the defense. There is simply no evidence that Petitioner’s attorney should have secured, but 

failed to secure any exculpatory material. Moreover, the record does not indicate that the 

government would have been unable to establish the charge against Petitioner. 

It is well established that telephones, even when used intrastate, 

constitute instrumentalities of interstate commerce. See Aquionics 

Acceptance Corp. v. Kollar, 503 F.2d 1225, 1228 (6th Cir.1974) 

(holding use of telephone in intrastate service satisfies 

jurisdictional requirements of § 10(b) of Securities and Exchange 

Act); see also United States v. Graham, 856 F.2d 756 (6th 

Cir.1988) (holding use of telephone to initiate and receive 

interstate calls satisfies interstate commerce requirement of Travel 

Act); FTC v. Shaffner, 626 F.2d 32, 37 (7th Cir.1980) (noting 

defendant's use of telephone constituted use of instrumentality of 

interstate commerce). Similarly, cellular telephones, even in the 

absence of evidence that they were used to make interstate calls, 

have been held to be instrumentalities of interstate commerce. See 

e.g., United States v. Clayton, 108 F.3d 1114, 1117 (9th Cir.), cert. 

denied, 522 U.S. 893, 118 S.Ct. 233, 139 L.Ed.2d 165 (1997) 

(holding cellular telephones to be instrumentalities of interstate 

commerce). 

Weathers v. United States, 169 F.3d 336, 340 (6th Cir. 1999). Even though a signal that actually 

connects two parties “was ultimately intra state, inter state activities” are required to make the 

connection possible, and therefore the use of a cellular telephone constitutes the use of an 

instrumentality in interstate commerce. Id. at 342. Petitioner admitted that he utilized the 

internet and his cellular phone in committing the offense to which he pleaded guilty. Further, by 

entry of his guilty plea, the government agreed not to pursue additional charges against Petitioner 

in that regard, and Petitioner obtained a reduction in his recommended sentence under the 

advisory sentencing guidelines for acceptance of responsibility and for timely notifying the 

authorities of his intention to plead guilty. Petitioner has failed to establish the denial of the 

effective assistance of counsel. 

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In short, Petitioner’s first four claims are without merit. 

Claim Six 

 In his sixth claim, Petitioner alleges that the government violated Brady v. Maryland, 373 

U.S. 83 (1963), by failing to disclose chat and phone texts in their entirety. In Brady, the United 

States Supreme Court held that “the suppression by the prosecution of evidence favorable to an 

accused upon request violates due process where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 86. Evidence is 

material “[i]f there is a reasonable probability that, had the evidence been disclosed to the 

defense, the result of the proceeding would have been different.” United States v. Bagley, 473 

U.S. 667, 682 (1985). “There is never a real ‘Brady violation’ unless the nondisclosure was so 

serious that there is a reasonable probability that the suppressed evidence would have produced a 

different verdict.” Strickler v. Greene, 527 U.S. 263, 281 (1999). “In the absence of prejudice, 

even assuming a violation of Brady, reversal is not required.” United States v. Jones, 766 F.2d 

994, 998 n. 1 (6th Cir. 1985). 

Petitioner alleges that the government withheld portions of telephone and computer text 

conversations. However, his conclusory allegation that the content of some unknown material 

may have assisted him in establishing his innocence of the charge will not support a claim under 

Brady. “Generally, courts have held that ‘conclusory allegations alone, without supporting 

factual averments, are insufficient to state a valid claim under § 2255.’” United States v. Moya, 

676 F.3d 1211, 1213 (10th Cir. 2012) (citing United States v. Fisher, 38 F.3d 1144, 1147 (10th 

Cir. 1994)); Lynn v. United States, 365 F.3d 1225, 1238 (11th Cir. 2004). 

Petitioner’s sixth claim, i.e., prosecutorial misconduct, is without merit. 

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Claims Five and Seven 

 Petitioner asserts that his sentence violated the terms of his Plea Agreement and that the 

recommended sentence under the guidelines was improperly enhanced. According to Petitioner, 

he agreed to a sentence of ten years’ imprisonment, followed by fifteen years’ supervised release. 

Affidavit, ECF No. 46, PageID# 210; Memorandum in Support, ECF No. 47, PageID# 243. 

Petitioner also complains that the government improperly waited until the last minute to request 

a five level enhancement of his sentence under U.S.S.G. § 4B1.5(b)(1).2 The record fails to 

support these allegations. 

 Petitioner signed a Plea Agreement indicating that he understood that he faced a term of 

imprisonment ranging from ten years to life and a term of supervised release ranging from five 

years to life. Plea Agreement, ECF No. 15, PageID# 50. He acknowledged in the Plea 

Agrement that the Court could impose any sentence up to the statutory maximum, and that the 

Court had yet to determine its sentence. He indicated that he was aware that any estimate of the 

probable sentencing range was not a promise and would not be binding on the Court. “The 

United States makes no promise or representation concerning what sentence the defendant will 

receive, and Defendant. . . cannot withdraw his guilty plea based upon the actual sentence.” Id. 

at PageID# 51-52. The Plea Agreement also expressly included the position of the United States 

that a five level increase in Petitioner’s sentence pursuant to U.S.S.G. § 4B1.5(b) should apply. 

Id. at PageID# 52. Petitioner agreed that there were no other agreements regarding application 

                                                            

2 U.S.S.G. 4B1.5(b)(1) provides: 

(b) In any case in which the defendant's instant offense of conviction is a covered sex crime, 

neither § 4B1.1 nor subsection (a) of this guideline applies, and the defendant engaged in a pattern 

of activity involving prohibited sexual conduct: 

(1) The offense level shall be 5 plus the offense level determined under Chapters Two and Three. 

However, if the resulting offense level is less than level 22, the offense level shall be level 22, 

decreased by the number of levels corresponding to any applicable adjustment from § 3E1.1. 

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of other provisions of the sentencing guidelines, that the recommendations were not binding on 

the Court, and that the final determination of sentence rested entirely with the Court. Id. at 

PageID# 52-53. Specifically, “[n]o additional promises, agreements, or conditions have been 

made relevant to this matter other than those expressly set forth herein, or unless signed in 

writing and signed by all parties.” Id. at PageID# 55. 

 At the guilty plea hearing, the Court advised Petitioner that he faced a mandatory minimum 

term of ten years in prison and a possible life term of imprisonment; Petitioner indicated that he 

understood. Transcript, PageID# 124-25. He also understood that he faced a minimum term of 

five years of supervised release to a possible life term of supervised release. Id. at PageID# 125. 

The prosecutor read the terms of the Plea Agreement, including Petitioner’s acknowledgement 

that the Court had the authority to impose any sentence up to the statutory maximum, and that 

any estimate of a probable sentencing range was only a prediction and not a promise. Id. at 

PageID# 125-26. The parties understood that the United States sought a five level enhancement 

under U.S.S.G. § 4B1.5(b). Id. at PageID# 127. Petitioner understood that the Court would 

make the final determination of sentence. Id. Petitioner acknowledged that these were the terms 

of his negotiated Plea Agreement, and that he understood those terms. Id. at PageID# 129. 

Petitioner also indicated that he had discussed with defense counsel the advisory sentencing 

guidelines. Id. at PageID# 130. 

On this record, Petitioner’s claims that his sentence violated the terms of the Plea 

Agreement and that his recommended sentence under the guidelines was improperly enhanced 

must fail. 

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Claims Eight and Nine 

In his eighth and ninth claims, Petitioner alleges that police unconstitutionally obtained 

his statements, that he was coerced, was “given shock-interrogation,” and that police improperly 

continued to question him after he requested counsel. Memorandum in Support, ECF No. 47, 

PageID# 249. He alleges that the authorities, acting in bad faith, used these illegally obtained 

statements to obtain a search warrant. Memorandum in Support, ECF No. 47, PageID# 250. 

 These claims have been waived by the entry of Petitioner’s guilty plea. 

[A] guilty plea represents a break in the chain of events which has 

preceded it in the criminal process. When a criminal defendant has 

solemnly admitted in open court that he is in fact guilty of the 

offense with which he is charged, he may not thereafter raise 

independent claims relating to the deprivation of constitutional 

rights that occurred prior to the entry of the guilty plea. 

Tollett v. Henderson, 411 U.S. at 267. “An unconditional guilty plea constitutes a waiver of all 

pre-plea non jurisdictional constitutional deprivations.” Id.; United States v. Ormsby, 252 F.3d 

844, 848 (6th Cir. 2001)). See also United States v. Martinez-Orozco, 52 Fed.Appx. 790, 792 

(6th Cir. 2002)(Fourth Amendment claim waived by guilty plea). Petitioner’s eighth and ninth 

claims have therefore been waived. 

Recommended Disposition 

 Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED. 

Procedure on Objections 

If any party objects to this Report and Recommendation, that party may, within fourteen 

days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A judge of this Court shall make a de novo determination of those 

portions of the report or specified proposed findings or recommendations to which objection is 

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made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in 

part, the findings or recommendations made herein, may receive further evidence or may 

recommit this matter to the magistrate judge with instructions. 28 U.S.C. 636(B)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue. 

 

 s/ Norah McCann King 

Norah McCann King 

United States Magistrate Judge 

November 23, 2015 

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