DECISION AND ORDER Defendant Duke Jimenez has admitted that, on about May 10, 2014, he made images of a three-year-old girl with his cell phone as he raped and sexually abused her. Defendant Jimenez has also admitted that he later possessed more sexually-explicit images that he used the girl to make at various times during an eight-and-a-half month period in 2014 when he babysat the girl for her mother.Defendant Jimenez made these admissions when entering guilty pleas to one count of production of child pornography in violation of 18 U.S.C. §2251(a) and one count of possession of child pornography in violation of 18 U.S.C. §2252A(a)(5)(B). A Plea Agreement the defendant entered into contemplates an aggregate sentence of imprisonment of 50 years.But defendant Jimenez now claims he is innocent of the production of child pornography count he pleaded guilty to, and he moves pursuant to Federal Rule of Criminal Procedure 11(d) to withdraw both guilty pleas. The defendant argues that two Assistant Federal Defenders who represented him in succession during lengthy pretrial proceedings before he pleaded guilty, and then a third attorney who represented him during the guilty-plea proceeding, all failed to discover that he had grounds to claim that he was too intoxicated to have acted with the specific intent necessary to be found guilty of making child pornography in violation of 18 U.S.C. §2251(a). The defendant argues that his prior attorneys thereby gave him ineffective assistance of counsel under the familiar standard in Strickland v. Washington, 466 U.S. 668 (1984). He contends that he would not have entered the guilty pleas if he had known that he had the voluntary-intoxication defense to the production count. For good measure, the defendant also accuses his third attorney of being ineffective by misleading him about some terms of his Plea Agreement during the guilty-plea proceeding.Notwithstanding defendant Jimenez’s claims, he never suggested to his prior counsel that he might have been intoxicated when he made the sexually-explicit images underlying the charge, and, in fact, he had informed his prior counsel that he had no serious drug or alcohol problems. Even now, the defendant offers no specific evidence that he ingested controlled substances or was under chronic influence of controlled substances around the time of the May 10, 2014 production offense, and he says nothing about how his prior counsel could be found constitutionally ineffective for not concluding that his representations that he had no serious drug or alcohol problems were false.When considering a claim of ineffective assistance of counsel, the Court assesses an attorney’s conduct on the basis of the facts “viewed as of the time of counsel’s conduct” and does not second guess counsel through hindsight. Strickland, 466 U.S. at 690. Strickland itself explains, “when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.” Id. at 691. Accordingly, having given his prior counsel reason to believe that he did not have a serious substance abuse problem, defendant Jimenez fails to establish that counsel’s investigation of his mental state at the time of the May 10, 2014 production of child pornography offense was in any way flawed, let alone that his counsel overlooked or disregarded his innocence.Defendant Jimenez did raise with his prior counsel that he might have suffered from diminished capacity. He told his prior counsel that he had certain memory problems and sleeplessness that he thought were related to PTSD1, and he asked counsel if these problems might give him a defense to the charges he faced. He also specifically asked if sleepwalking might be a defense, though he did not claim he was sleepwalking when he made child pornography on or about May 10, 2014, or that he believed that he had ever acted while in anything like a dissociative or autonomic mental state.Partly as a result of defendant Jimenez’s inquiries about possible defenses, his prior counsel retained a forensic psychologist who examined the defendant and prepared a report for counsel. His prior counsel also retained a neurologist and sleep-medicine specialist to consult about the defendant’s specific complaints of insomnia and his questions about sleepwalking. And his prior counsel questioned some of the defendant’s family members about his behavior around the time of the offense conduct.Despite the relevance of the consultants’ and family members’ assessments of defendant Jimenez’s behaviors and mental state, the defendant has not disclosed them in support of his claims that he lacked the specific intent to make child pornography, or even that he was a chronic drug abuser. Thus, while the defendant acknowledges that it is his heavy burden to establish that his prior counsel gave him constitutionally ineffective assistance of counsel, he has not suggested how the experts’ findings and conclusions2, or how the information his family provided, was incompetently handled by his prior counsel. Moreover, defendant Jimenez offers no evidence that his counsel overlooked a viable voluntary-intoxication defense, and he disregards his earlier statements about his mental condition and PTSD that may preclude that defense. For these reasons, and for all of the reasons stated below, the Court finds the defendant fails to meet his heavy burden to show that his prior counsels’ investigation and advice were not objectively reasonable under Strickland and that he suffered prejudice as it is defined in Strickland and Hill v. Lockhart, 474 U.S. 52 (1985), by not being advised of a voluntary-intoxication defense. See Lee v. United States, 137 S. Ct. 1958, 1967 (2017).Finally, the Court also finds that defendant Jimenez was not misled about the terms of his Plea Agreement by counsel in a confidential conversation during the guilty-plea proceeding. The defendant’s claims that his prior attorneys gave him ineffective assistance of counsel are therefore all without merit. The defendant has no fair and just reason to withdraw his guilty pleas, and his motion to withdraw the pleas pursuant to Rule 11(d) is denied.BACKGROUNDA defendant may withdraw a guilty plea after the plea has been accepted by a court, but before sentencing, for “any fair and just reason.” Fed. R. Crim. P. 11(d)(2)(B). “[T]o determine whether [a] defendant has shown a ‘fair and just reason’ to justify withdrawal, a court considers, inter alia: (1) whether the defendant has asserted his or her legal innocence in the motion to withdraw the guilty plea; (2) the amount of time that has elapsed between the plea and the motion…; and (3) whether the government would be prejudiced by a withdrawal of the plea.” United States v. Rivernider, 828 F.3d 91, 104 (2d Cir. 2016) (quoting United States v. Schmidt, 373 F.3d 100, 102-03 (2d Cir. 2004)). The Court also considers whether the defendant has raised any significant question about the voluntariness of the guilty plea. Schmidt, 373 F.3d at 103.As is summarized above, defendant Jimenez alleges that he is innocent of the production of child pornography count that he pleaded guilty to, and that both of his guilty pleas were involuntary because he did not understand that he is innocent of the production charge when he pleaded guilty. The defendant alleges that his prior counsel, Assistant Federal Defender John F. Humann, Esq., Assistant Federal Defender Mary Beth Covert, Esq., as well as John F. Molloy, Esq., all provided ineffective assistance of counsel under Strickland, 466 U.S. at 687-96, by failing to discover the defendant’s viable voluntary-intoxication defense to the production of child pornography count.Defendant Jimenez further alleges that his counsel at the time of the guilty plea proceeding, Mr. Molloy, neglected him and affirmatively misled him in a private conversation during the guilty-plea proceeding. He alleges that Mr. Molloy told him that some language in the parties’ Plea Agreement that the defendant did not agree with — the defendant does not say what language in the Agreement he has in mind — would be revised after the proceeding, but it was never revised, and that Mr. Molloy was constitutionally ineffective under Strickland and Hill for this additional reason.The Proceedings Leading Up to the Guilty Pleas.Defendant Jimenez was indicted on May 25, 2016, on five counts of production of child pornography in violation of 18 U.S.C. §2251(a) and one count of possession of child pornography in violation of 18 U.S.C. §2252A(a)(5)(B). Dkt. No. 6. The charges stem from the defendant’s use of his cell phone to take pictures while he was raping or sadistically sexually abusing a three-year-old girl at various times from February, 2014, through late October, 2014. Each of the five child pornography production counts carry a 15-year mandatory-minimum sentence of imprisonment with a maximum sentence of imprisonment of 30 years. 18 U.S.C. §2251(e). The possession count carries a maximum sentence of 20 years imprisonment. 18 U.S.C. §2252A(b)(2).Assistant Federal Public Defender John F. Humann was defendant Jimenez’s first counsel during the pretrial phase of the proceedings. The defendant filed pretrial motions and sought to suppress evidence seized from his cell phone and his residence pursuant to search warrants. The defendant argued that the seizures violated the Fourth Amendment because probable cause for the warrants was stale by the time the warrants were authorized and executed.By February 2, 2017, AFPD Humann represented to the Court that the parties were “close to a plea” when seeking an adjournment of oral argument of objections to a Report and Recommendation that recommended denying defendant Jimenez’s motions to suppress evidence. Dkt. No. 23, p. 2, 4. But about five weeks later, the defendant wrote to the Magistrate Judge who was presiding over the pretrial proceedings and requested assignment of new counsel because the defendant was dissatisfied with Mr. Humann’s representation. See 3/10/2017 minute entry. The defendant’s request for an assignment of new counsel was denied at that time. Id.The Court eventually denied defendant Jimenez’s motions to suppress evidence seized from his cell phone and residence in a Decision and Order filed on June 14, 2017. Dkt. No. 29. When the parties appeared to set a date for trial two days later, AFPD MaryBeth Covert took over representation of the defendant in the place of AFPD Humann. Mr. Humann was reducing his caseload due to personal constraints, and the defendant had continued to express serious dissatisfaction with AFPD Humann’s representation. See 5/4/2017 minute entry, 5/15/2017 minute entry, and Dkt. No. 283. AFPD Covert was granted a 45-day adjournment on behalf of the defendant to become familiar with the case and to engage in plea negotiations. See 6/16/2017 minute entry.At the next appearance, on August 4, 2017, defendant Jimenez was granted 30 days more to evaluate two plea proposals. Dkt. No. 55. The negotiations had been underway since before February, 2017, and seemed to have been fairly far along even in February when Mr. Humann represented to the Court that the parties were “close to a plea.” Id.; Dkt. No. 23.On September 8, 2017, defendant Jimenez was granted approximately two more weeks to consider pleading guilty. See 9/8/2017 minute entry. On September 22, 2017, the defendant indicated he would enter a guilty plea, and the change-of-plea proceeding was scheduled for October 3, 2017. See 9/22/2017 minute entry.On October 3, 2017, however, defendant sought additional time to review a plea agreement, and the change of plea was adjourned until October 30, 2017. See 10/3/2017 minute entry. The defendant also expressed serious dissatisfaction with AFPD Covert’s representation, see Dkt. Nos. 30 and 31 (sealed letters from the defendant to the Court), and after a status-of-counsel conference on October 27, 2017, John F. Molloy, Esq., was appointed the defendant’s counsel on October 30, 2017. Mr. Molloy was the defendant’s third attorney. Proceedings were adjourned until November 20, 2017. See 10/30/2017 minute entry.On November 20, 2017, Mr. Molloy sought another adjournment to continue plea negotiations. The Court was not privy to the substance of the parties’ plea negotiations. See Fed. R. Crim. P. 11(c)(1) (“The court must not participate in [plea negotiations].) Nevertheless, instead of granting yet another adjournment, the Court scheduled jury selection and trial for January 17, 2018.On December 7, 2017, defendant Jimenez and Mr. Molloy appeared and entered into the Plea Agreement pursuant to which the defendant pleaded guilty to Count 3 of the Indictment charging him with the production of child pornography on May 10, 2014, and Count 6 charging him with possession of child pornography on November 18, 2015. Dkt. Nos. 35 and 54. The production count was predicated upon:… visual depictions produced by the defendant [on May 10, 2014] depict[ing] the defendant engaging in sexual intercourse with Victim 1 and also depict[ing] Victim 1 touching the defendant’s penis, as well as sadistic, masochistic and other depictions of violence.Dkt. No. 35, p. 5, 8.b. When these images were produced, the victim “… was three years-old, and was in the custody, care, and supervisory control of the defendant.” Id. at p. 5, 8.a. The possession count was predicated upon these images being found on a microSD card of the defendant’s. Id. “In total, 18 image files were located on the SD card which depicted Victim 1 engaging in sexually-explicit conduct.” Id. at p. 5, 8.c. The 18 image files were produced between February 10, 2014, and October 27, 2014. Id.While under oath during the guilty-plea proceeding, defendant Jimenez stated that he fully understood the charges, the facts underlying his guilty pleas, all of his trial rights, and the Plea Agreement. See Dkt. No. 54. The defendant stated that he agreed with everything in the Plea Agreement, that it was the only agreement concerning his pleas, and that he was entering the guilty pleas voluntarily and of his own free will. Id. According to the defendant’s Plea Agreement, he faces an advisory range of imprisonment of 600 months (50 years), a mandatory minimum of 15 years imprisonment, and a maximum of 50 years imprisonment. Dkt. No. 35,
9-21.Before defendant Jimenez entered the guilty pleas in December of 2017, he appeared with counsel for five plea-or-trial status conferences during the four months preceding entry of the pleas. See Dkt. Nos. 55-61. The Plea Agreement negotiated by Mr. Molloy, and entered into by the defendant on December 7, 2017, seems to have been similar to one of two alternative proposals Mr. Humann had negotiated on the defendant’s behalf in February, 2017. Dkt. No. 92,
