Attacking the Guilty Plea: Court Threatens More Time in Child Porn Case if Post-Conviction Motion Successful

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I`m always asked whether the court can impose a harsher sentence if someone is successful in vacating their conviction or sentence under 28 U.S.C. sec 2255. My answer is always the same: It depends, but it can happen.

Usually, a sec 2255 motion attacking a guilty plea opens the door for any charges that were dropped as part of the plea deal to come back into play, should the motion be successful. That`s because vacating the guilty plea puts someone back in the same position as if they were just charged. This also exposes the person to more charges, should the government feel so inclined to pile on the incentives to plead guilty again.

And while a sec 2255 motion successfully attacking only the sentence doesn`t usually create any risk of a harsher sentence, it can happen if the sentence that`s vacated was part of the plea deal. The judge might then undo the plea deal and open the door for a higher sentence. This is a bit rarer, however.

Judge Sarah Evans Barker of the U.S. Dist. Court for the Southern Dist. of Indiana was kind enough recently to provide a warning to someone filing a sec 2255 motion, saying that if he followed through and is successful then he would likely face more time in prison.

In Jansen v. United States, 2022 U.S. Dist. LEXIS 49499 (S.D. Ind. Mar. 18, 2022), Mr. Jansen filed a sec 2255 motion attacking his guilty plea for distributing child pornography. He was originally sentenced to 15 years in prison back in 2009, but the court granted compassionate release during the peak of the COVID-19 wave overwhelming the federal prisons, and he got to go home. The judge made clear that he`d head back to prison if his sec 2255 motion was granted:


At this stage, the benefits of Mr. Jansen`s guilty plea are profound. his prison sentence has been reduced to time served, and he faces only supervised release moving forward. If the court dismisses Mr. Jansen`s sec 2255 petition, he will face no further penalties for the conduct charged in this criminal action.

On the other hand, if the court grants Mr. Jansen`s motion and vacates his guilty plea, he will face six outstanding child pornography charges. Moreover, there is no statute of limitations for child pornography offenses, so he may face additional liability for any conduct that was not originally charged. Perhaps he could achieve dismissal of the charges or win acquittal. But he could also be convicted and face a sentence that includes prison time.

Judge Barker generously gave Mr. Jansen a choice to withdraw his sec 2255 motion and avoid the unfortunate chance he`d win and wind up back in prison. Most judges are not so nice.

Always know your risks when filing for post-conviction relief in court!

Dale Chappell has hundreds of published articles on federal habeas issues and is the author of several post-conviction relief books.

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