United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
MORRIS, UNITED STATES DISTRICT COURT JUDGE
Timothy Weaver filed a motion to vacate, set aside, or
correct his sentence on May 12, 2019. See Mot.
§ 2255 (Doc. 95). Following a brief explanation of the
motion's deficiencies, see Order (Doc. 97),
Weaver filed an amended motion on August 21, 2019,
see Am. § 2255 Mot. (Doc. 98).
transcripts of the change of plea hearing, held January 30,
2018, and the sentencing hearing, held May 29, 2018, are
needed to decide the issues that Weaver presents. The United
States will be required to order these transcripts for the
record and to deliver a copy to Weaver. See 28
U.S.C. § 753(f).
jury indicted Weaver on 65 counts of sexual exploitation of a
child in violation of 18 U.S.C. § 2251(a) (Counts 1-65).
The grand jury indicted Weaver and his common-law wife,
Michelle Andra Joyner, on nine counts of sexual exploitation
of another child in violation of 18 U.S.C. § 2251(a)
(Counts 66-74). Finally, the grand jury indicted Weaver on
two counts of receipt of child pornography in violation of 18
U.S.C. § 2252(a)(2) (Counts 75 and 76). See
Indictment (Doc. 1) at 2-8. If convicted on any of Counts
1-74, Weaver would be sentenced to at least 15 years in
prison and up to 30 years. If convicted on Counts 75 or 76,
he would be sentenced to at least five years in prison and up
to 20 years. Any count could be imposed to run consecutive to
the other counts. See 18 U.S.C. §§
2251(e), 2252(b)(1), 3584(a), (b).
agreed to plead guilty to Counts 1, 67, and 75 and to forfeit
the eMachines computer, Polaroid tablet, and Microsoft
cellular telephone and MicroSDHC media card found at his
residence. The United States agreed to dismiss Counts 2-66,
68-74, and 76 and conditionally agreed to recommend a
three-level downward adjustment for acceptance of
responsibility. See Plea Agreement (Doc. 55) at 2-5
¶¶ 2-4, 8 ¶ 6. Count 1 alleged that, on July
10, 2011, he caused Jane Doe to engage in sexually explicit
conduct for the purpose of producing a visual depiction of
the conduct. Count 67 alleged that he and Joyner together did
the same on June 26, 2016. Count 75 alleged that Weaver
received, between March 30, 2010, and April 18, 2016, a
depiction of the same sort involving a child other than Jane
Doe. See Indictment at 2, 7-8.
29, 2018, the Court sentenced Weaver to serve 360 months in
prison on Counts 1 and 67, concurrent, and 140 months on
Count 75, consecutive, for a total term of 500 months, to be
followed by a life term of supervised release. See
Judgment (Doc. 86) at 2-3. Weaver did not appeal. He timely
filed his § 2255 motion on May 12, 2019. See
Mot. § 2255 (Doc. 95) at 11.
warrant further proceedings under § 2255, Weaver must
allege facts supporting an inference that counsel's
performance was unreasonable and that, but for that
unreasonable performance, Weaver might have obtained a better
outcome. See Strickland v. Washington, 466 U.S. 668,
687-88, 694 (1984).
alleges that counsel failed to investigate his home and so
counsel did not realize “we had no internet to download
the images in question.” He claims as follows:
Computer was bought used with images in question on it. So
we tried to delete them off. But since electricity was from a
generator, they would return whe[n] computer reset. Images
were of non-nude art photos, not child p[or]nography. So we
kept computer. If this would have come to li[ght], it would
have took receipt of child pornography off the charges, or at
least narrowed charges down.
Am. § 2255 Mot. (Doc. 98) at 3; see also Mot.
§ 2255 (Doc. 95) at 5.
other words, Weaver alleges that the eMachines computer held
artistic, non-pornographic images of children at the time
that he bought it. He claims that he tried to delete the
images, they returned, because he was using electricity from
a generator. Weaver decided to keep the computer anyway,
because the images were not pornographic in his opinion.
contrast, at the change of plea hearing, Weaver admitted that
he had downloaded child pornography. Before sentencing,
counsel also checked again on the nature of the images in
question. As the sentencing transcript will show, he withdrew
at sentencing the objections that he had previously
preserved. See Def. Sentencing Mem. (Doc. 80) at
4-5; Minutes (Doc. 84). Everyone involved with the case knew
the family group was living “off the grid.”
See, e.g., Forensic Eval. Report (Doc. 49) at 1;
Presentence Report ¶¶ 77, 105-106. The family did
not move to Dearborn until 2014, see Presentence
Report ¶ 74, and Weaver pled guilty to receiving child
pornography between March 2010 and April 2016. Weaver's
new allegation prove unworthy of belief in light of the
record and does not warrant further proceedings. See
United States v. Withers, 638 F.3d 1055, 1062-63 (9th
also alleges that counsel did not tell him that he could
plead guilty to one charge, but not others. Weaver pled
guilty to three out of 76 counts. Weaver knew the elements of
Counts 1 and 67 differed from the elements of Count 75.
See, e.g., Plea Agreement (Doc. 55) at 3-5. His
statements at the change of plea hearing met the elements of
each charge. This allegation, like the previous one, proves
unworthy of belief in light of the record.
claims that counsel provided ineffective assistance by not
investigating evidence, by not filing an appeal, and by not
returning communications after court. See Am. §
2255 Mot. (Doc. 98) at 3; see also Mot. § 2255
(Doc. 95) at 4. Weaver was previously advised of the elements
of an ineffective assistance claim and the nature of the
facts he must specify. See Order (Doc. 97) at 1-2.
He has not alleged facts ...