United States District Court, E.D. Wisconsin
Jeffrey W Feldman, Petitioner, Pro Se.
States of America, Respondent, represented by Erica N.
O'Neil, United States Department of Justice, Jeffrey H.
Zeeman, United States Department of Justice, Karine
Moreno-Taxman, United States Department of Justice & Richard
G. Frohling, United States Department of Justice.
RULE 4 ORDER
ADELMAN, District Judge.
action under 28 U.S.C. § 2255, petitioner Jeffrey Feldman
moves to vacate his 120-month sentence for receipt of child
pornography. He has also filed motions to compel access to a
printer and to introduce evidence on CDs. For the reasons
that follow, I will direct the government to answer the §
2255 motion, deny as moot the motion to compel access to a
printer, and grant the motion to introduce evidence on CDs.
government charged petitioner with five counts of receipt of
child pornography, 18 U.S.C. § 2252A(a)(2), and one count of
possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B).
Pursuant to an agreement with the government, petitioner
pleaded guilty to one of the receipt counts, which carried a
statutory penalty range of 5-20 years in prison, 18 U.S.C. §
2252A(b)(1), with the government agreeing to dismiss the
remaining counts at sentencing. (Plea Agreement [R. 62] at 3
¶ 7.) The agreement further indicated that the parties would
jointly recommend a sentence of 10 years' imprisonment.
(R. 62 at 7 ¶ 21.) Finally, the agreement contained a waiver
of petitioner's right to appeal his sentence or challenge
his conviction or sentence in any post-conviction proceeding,
except for (1) any punishment in excess of the statutory
maximum, (2) the sentencing court's reliance on any
constitutionally impermissible factor, (3) ineffective
assistance of counsel, and (4) any restitution issues. (R. 62
at 10-11 ¶ 35.)
August 14, 2015, sentencing hearing, I adopted the guideline
calculations in the pre-sentence report: offense level 31,
criminal history category I, and 151 to 188 months
imprisonment. On consideration of the factors under 18 U.S.C.
§ 3553(a), I sentenced petitioner to 120 months in prison, as
jointly recommended by the parties, followed by eight years
of supervised release with various conditions, generally
taken from the conditions recommended in the pre-sentence
report. I asked counsel if there were any objections to the
conditions imposed, and both sides said no. (Sen. Tr. [R. 79]
at 52.) I did not impose restitution. Pursuant to the
government's motion, I dismissed the other counts. I also
recommended the RDAP program. Petitioner took no direct
22, 2016, petitioner filed a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255. In his motion and supporting
memorandum, he raises four claims.
petitioner challenges the conditions of supervised release
and the length of his sentence. Specifically, he attacks
several conditions of supervision under the Seventh
Circuit's Thompson line of cases, see, e.g., United
States v. Kappes, 782 F.3d 828 (7th Cir. 2015);
United States v. Thompson, 777 F.3d 368 (7th Cir.
2015); he asks the court to consider the 20 months he spent
on pre-trial release, which included a home detention
condition; and he contends that the sentencing guidelines
were excessive and unjust, and that the sentence was too
harsh and out of line with sentences imposed in similar
second claim, petitioner alleges a violation of his due
process right to be sentenced based on accurate information.
Specifically, he contends that the offense level was wrong,
the court was not made aware of the strict house arrest
condition, the court was misadvised about when he started
treatment, the prosecutor overstated the harm to the victims,
the court should not have received victim impact statements
dated prior to the date of the search of his residence, the
prosecutor misled the court regarding the number of images,
and the government exaggerated the number of devices used in
the commission of the offense.
petitioner alleges ineffective assistance of counsel.
Specifically, he faults his lawyers for failing to object to
certain guideline calculations, failing to apprise the court
of criticisms of the child pornography guideline, misadvising
him regarding his prison exposure, failing to advise him of
the § 3553(a) factors and how they could apply, failing to
advise him that counts four and five occurred on the same
date and that one of them should have been dismissed, failing
to advise him that possession is a lesser included offense of
receipt, failing to ask for 20 months of house arrest to be
counted towards his sentence, failing to correctly advise him
regarding the RDAP, blaming the government for the
victims' selection, failing to use any case-law to
dispute the victim impact statements, failing to seek
modification of vague supervised release conditions, failing
to defend him against malicious prosecutorial techniques,
failing to ask for return of cell phones which did not
contain child pornography, failing to investigate a civil
suit brought against him, and failing to correct various
errors in the PSR. He concludes that, as a result of all of
these deficiencies, it was not an intelligent decision for
him to accept a plea deal with a 10 year sentence.
petitioner alleges prosecutorial misconduct and
vindictiveness. He contends that the government used
misleading information, violated discovery rules, slandered
him, abused the judicial process to get him fired, engaged in
needless litigation, overcharged him, violated his 5th
Amendment rights, harassed him by making him justify his
assets, and abused the judicial process with respect to
restitution and the civil case. He alleges that the
government became vindictive after it was unable to force him
to decrypt his hard drives.
5, 2016, petitioner filed a motion to compel access to a
printer. In the motion, he indicates that the BOP has denied
him access to a printer. It appears that he wants this
service in order to print out documents from discovery CDs
and present this information to the court. He cites 28 U.S.C.
§ 1361, the mandamus statute, as authority for the order he
15, 2016, petitioner filed a motion to introduce evidence on
CDs. The CDs apparently contain information pertinent to his
claims in this action. On July 21, 2016, a paralegal from
petitioner's former attorney's office provided to the
clerk of court a sealed envelope containing several ...