United States v. Frock
1:09-cr-00093 | D. Maryland | Dec 7, 2012
Case 1:09-Cr-00093-WDQ Document 73 Filed 12/07/12 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MARYLAND, NORTHERN DIVISION
*
DEBORAH GAIL FROCK,
Petitioner,
v. CIVIL NO.: WDQ-ll-149S
* CRIMINAL NO.: WDQ-O9-0093
UNITED STATES OF AMERICA,
Respondent.
* * * 'k * * * 'k * * * * *
MEMORANDUM OPINION
Deborah Frock pled guilty to commercial sex trafficking of
a minor. On June 24, 2009, she was sentenced to 120 months
imprisonment and lifetime supervised release. ECF No. 44. On
March 28, 2012, the Court denied Frock's pro se motion to
vacate, set aside, or correct her sentence under 28 U.S.C. §
2255. ECF No. 69. Pending is Frock's pro se motion to alter or
amend the Court's denial of her motion to vacate, set aside, or
correct, under Fed. R. Civ. P. 59(e) in light of Missouri v.
Frye, 132 S. Ct. 1399 (2012). No hearing is necessary. See
Rule 8 of the Rules Governing § 2255 Proceedings; Local Rule
105.6. For the following reasons, Frock’s motion will be
denied.
I. Background
On February 25, 2009, Frock was indicted for using a minor
to engage in sexually explicit conduct for the purpose of
Case 1:09-Cr-00093-WDQ Document 73 Filed 12/07/12 Page 2 of 6
producing pornography, in violation of 18 U.S.C. § 2251(a). ECF
No. 21. On March 27, 2009, the government charged Frock in a
superseding information with sex tracking of a minor in
violation of 18 U.s.C. § 1591(a), (b)(z). ECF No. 31.
On April 1, 2009, Frock waived her right to an indictment
and pled guilty to the superseding information. ECF No. 33. On
June 1, 2009, Frock moved to withdraw her guilty plea, arguing
that she had not entered it knowingly or voluntarily, and was
innocent. ECF No. 38. On June 23, 2009, the Court held a
hearing on Frock's motion, denied it, and sentenced her to 120
months imprisonment and lifetime supervised release. ECF No.
53. On appeal, the Fourth Circuit affirmed the Court's refusal
to allow Frock to withdraw her guilty plea, finding that her
claims of innocence and involuntariness “were without factual
support," and the plea was knowing and voluntary.1 United States
v. Frock, 387 F. App’x 385" date_filed="2010-07-09" court="4th Cir." case_name="United States v. Frock">387 F. App’x 385, 386 (4th Cir. 2010).
On May 31, 2011, Frock moved to vacate, set aside, or
correct her sentence under 28 U.S.C. § 2255, alleging that her
plea was involuntary, and her counsel was ineffective because he
coerced her into pleading guilty. ECF No. 60. On September 7,
1 The Fourth Circuit also held that although the Court had stated
at her rearraignment that Frock would only be subject to five
years supervised release, “there was no plain error because
Frock's substantial rights were not violated.” Frock, 387 F.
App'x at 386. It also remanded the case to correct a clerical
error in the Judgment and Commitment document. Id.
2
Case 1:09-Cr-00093-WDQ Document 73 Filed 12/07/12 Page 3 of 6
2011, the government opposed the motion. ECF No. 64. On March
27, 2012, the Court denied the motion, holding that there was no
evidence that Frock's plea was not knowing or voluntary, and she
had not shown that her counsel had coerced her into pleading
guilty. ECF No. 68 at 6-8.
On March 21, 2012, the Supreme Court decided Missouri v.
Frye, 132 S. Ct. 1399 (2012), holding that defense counsel has a
duty to communicate favorable plea offers. See id. at 1408. On
April 9, 2012,2 Frock asked the Court to alter or amend its
denial of her motion to vacate under Fed. R. Civ. P. 59(e) in
light of Frye. ECF No. 70. On June 18, 2012, the government
opposed the motion. ECF No. 72.
II. Analysis
A. Legal Standard
Under Rule 59(e), the Court will grant a motion to alter or
amend an earlier judgment “(1) to accommodate an intervening
change in controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.” Pac. Ins. Co. v. Am. Nat'l Fire
Ins. co., 148 F.3d 396" date_filed="1998-07-07" court="4th Cir." case_name="Pacific Insurance Company v. American National Fire Insurance Company, Rail Link, Incorporated">148 F.3d 396, 403 (4th cir. 1998). “Rule 59(e)
motions may not be used, however, to raise arguments which could
2 Although the Court received the motion on April 17, 2012, the
motion is deemed filed when Frock deposited it in the prison
mailbox. See Houston v. Lack, 487 U.S. 266" date_filed="1988-06-24" court="SCOTUS" case_name="Houston v. Lack">487 U.S. 266, 274-76 (1988);
United States. v. Dorsey, 988 F. Supp. 917" date_filed="1998-01-06" court="D. Maryland" case_name="United States v. Dorsey">988 F. Supp. 917, 919-20 (D. Md.
1998) .
Case 1:09-Cr-00093-WDQ Document 73 Filed 12/07/12 Page 4 of 6
have been raised prior to the issuance of the judgment, nor may
they be used to argue a case under a novel legal theory that the
party had the ability to address in the first instance.” Id.
B. Frock's Motion
Frock requests the Court alter or amend its order denying
her motion to vacate asserting that (1) she is “unaware if a
favorable plea could have been offered in light of her
circumstances pertaining to her case," (2) the plea “prevented
any a[d]judication to circumvent imposed sentence,” (3) the
judgment should be altered in light of Frye because she has
previously alleged ineffective assistance of counsel, and (4)
she should be allowed to withdraw her plea and to stipulate to a
lesser sentence. ECF No. 70 at 1. The government argues that
(1) Frock has not alleged a more favorable plea offer was ever
offered and (2) there was no such offer. ECF No. 72 at 3. It
also notes that her counsel successfully negotiated a plea for a
10 year sentence, considerably less than the minimum 15 years
she faced in the original indictment. Id. at 3 n.1.
In Frye, the Supreme Court held that “defense counsel has
the duty to Communicate formal offers from the prosecution to
accept a plea on terms and conditions that may be favorable to
the accused.” 132 S. Ct. at 1408. The Court also stated that
to show ineffective assistance when counsel failed to convey a
plea offer:
Case 1:09-Cr-00093-WDQ Document 73 Filed 12/07/12 Page 5 of 6
defendants must demonstrate a reasonable probability they
would have accepted the earlier plea offer had they been
afforded effective assistance of counsel. Defendants must
also demonstrate a reasonable probability the plea would
have been entered without the prosecution canceling it or
the trial court refusing to accept it
Id. at 1409.
Frock does not allege, and there is no evidence of, a plea
offer that defense counsel did not convey to her. See ECF No.
72 at 3; cf. ECF No. 70 at 1. Further, Frock's 10 years
imprisonment is the mandatory minimum sentence under the statute
to which she pled guilty. See 18 U.S.C. § 159l(b)(2). By
contrast, the statute under which Frock was first charged
carries a mandatory minimum sentence of 15 years. See 18 U.S.C.
§ 2251(e). Frock has not shown that her counsel failed to convey
a more favorable plea offer to her; instead, she received and
accepted a favorable offer. The Court has previously determined
that Frock's counsel was not ineffective. ECF No. 68 at 8-9.
As Frock has not shown that she is entitled to relief under
Frye, the motion will be denied.
C. Certificate of Appealability
A certificate of appealability (“COA”) must issue before a
petitioner may appeal the court's decision in a 28 U.S.C. § 2255
case. See 28 U.S.C. § 2253(€)(1); Fed. R. App. P. 22(b). A COA
may be issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. §
Case 1:09-Cr-00093-WDQ Document 73 Filed 12/07/12 Page 6 of 6
2253(c)(2). The petitioner “must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong," Tennard v. Dretke,
542 U.S. 274" date_filed="2004-06-24" court="SCOTUS" case_name="Tennard v. Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division">542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)), or that “the issues presented were adequate to
deserve encouragement to proceed further,” Miller-El v.
Cockrell, 537 U.S. 322" date_filed="2003-02-25" court="SCOTUS" case_name="Miller-El v. Cockrell">537 U.S. 322, 335-36 (2003) (internal quotation marks
omitted). Denial of a COA does not prevent the petitioner from
seeking permission to file a successive petition or pursuing his
claims upon receipt of such permission.
Because Frock has not made a substantial showing of the
denial of her constitutional rights, the Court will not issue a
COA.
III. Conclusion
For the reasons stated above, Frock's motion to alter or
amend will be denied.
/ZA//z
Date '
il iam D. Quarles, Jr.
Unlted States District Judge