United States District Court, M.D. Tennessee, Nashville Division
WILLIAM J. HAYNES, Jr., Senior District Judge.
Movant, Sam Howell, filed this pro se action under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Docket Entry No. 1) The United States filed its response (Docket Entry No. 17), to which Movant filed his reply. (Docket Entry No. 22.).
Movant was indicted on January 21, 2008, on two counts of transportation of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(1) and 2252A(b)(l), one count of receipt of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1), and one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(1). (Case No. 3:08-cr-00021, Docket Entry No. 1).
On July 20, 2009, the Movant submitted his petition to enter a plea of guilty to the indictment, and the Court accepted his guilty plea after making the proper determinations. (Case No. 3:08-cr-00021, Docket Entry No. 31). At the plea hearing, Special Agent David Mackdanz of the Immigration and Customs Enforcement agency ("ICE") testified that he and another agent went to the Movant's home on May 24, 2006, to investigate information that the Movant had engaged in the transportation of child pornography via the internet to undercover agents on more than one occasion in 2005. (Case No. 3:08-cr-00021, Docket Entry No. 49, at 21-22.) Mackdanz testified that "Mr. Howell agreed to talk with the agents. He admitted to receiving and distributing child pornography. And he stated he had sent naked pictures of himself to an individual whom he thought was a teenage female under the age of 18. He agreed to turn his computer over to agents on that date." Id. at 22. Forensic analysis of the Movant's computer revealed more than one thousand still and video images of child pornography. Id.
Movant's guilty plea petition stated that his lawyer had conducted all investigation and research that the Movant had asked of him, and that he was satisfied with his lawyer's representation to that point. (Case No. 3:08-cr-00021, Docket Entry No. 31 at 3). In response to the Court's questions, Movant stated that he was satisfied with his counsel and with his counsel's representation of him. (Case No. 3:08-cr-00021, Docket Entry No. 49, at 19). Movant admitted that Mackdanz's account was true and accurate. Other than disputing the time-frame for his sending and receiving child pornography, Movant did not dispute any of the material facts to which Mackdanz testified. Id. at 24-25.
With the guideline range of 292 to 365 months or 210 to 262 months, the Court sentenced the Movant to 135 months based upon a downward departure for acceptance of responsibility. The Sixth Circuit remanded the case for an express determination under Fed. R. Crim. P. 32(i)(3)(B) of Movant's claim that he had voluntarily ceased his criminal activity a year before his arrest. (Case No. 3:08-cr-00021, Docket Entry No. 52). At the hearing on re-sentencing, Movant testified that his previous claim to have abandoned the criminal activity a year before his arrest was false, and that he had actually continued viewing child pornography until March 2006, just two and a half months before the agents arrived at his home. (Case No. 3:08-cr-00021, Docket Entry No. 74, at 20-21). The Court further concluded based on the expert testimony presented by both parties at the hearing, that Movant had continued to download and likely to view child pornography in April and May 2006. (Case No. 3:08-cr-00021, Docket Entry No. 74, at 50). Accordingly, the Court again sentenced the Movant to 135 months in prison. (Case No. 3:08-cr-00021, Docket Entry No. 71). The Sixth Circuit affirmed the Movant's sentence on appeal. (Case No. 3:08-cr-00021, Docket Entry No. 75).
In this action, Movant asserts that on May 24, 2006, the ICE agents entered his home illegally over his objection, without a warrant. Movant alleges that once inside his home, the agents coerced him to confess and to provide evidence against himself, without advising him of his Miranda rights, including his right to consult an attorney. Movant also asserts a claim that his counsel was ineffective for failing to move to suppress the evidence based on the agent's illegal action and advise Movant of whether such a motion would fail or jeopardize his sentence reduction. Movant contends that if his counsel had filed a motion to suppress, then his confession and the evidence obtained from his computer would have been suppressed, and he would have been acquitted at a trial instead of pleading guilty.
A prisoner who files a motion under § 2255 challenging a federal conviction is generally entitled to "a prompt hearing" at which the district court is to "determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255. The hearing is mandatory "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief" Fontaine v. United States, 411 U.S. 213, 215 (1973) (quoting 28 U.S.C. § 2255(b)). Thus, "no hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)).
Rule 4(b) of the Rules Governing § 2255 Proceedings provides that if it plainly appears from the face of the § 2255 motion, exhibits, and prior proceedings that the petitioner is not entitled to relief, the judge shall make an order for its summary dismissal. Upon consideration of the original motion and supporting memorandum, the government's response and the underlying factual record, the Court finds that there are no evidentiary issues to be resolved and that an evidentiary hearing is notrequired. The Court will dispose of the motion without a hearing. Rule 8(a), Rules Gov'g § 2255 Cases.
For relief under § 2255, a prisoner must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the Court was without jurisdiction to impose such sentence, that the sentence was in excess of the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail, Movant "must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict." Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Non-constitutional errors are generally outside the scope of § 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a § 2255 motion alleging non-constitutional error only by establishing a "fundamental defect which inherently results in a complete miscarriage of justice, or an error so egregious that it amounts to a violation of due process." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotation marks and additional citation omitted)).
As a general rule, any claims that are not raised on direct appeal, are procedurally defaulted and may not be raised on collateral review unless the movant shows "(1) cause' excusing [the] procedural default, and (2) actual prejudice' resulting from the errors, " United States v. Frady, 456 U.S. 152, 168 (1982) (citations omitted), or demonstrates that he is "actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted). A claim of ineffective assistance of counsel, however, is not subject to the procedural-default rule. Massaro v. United States, 538 U.S. 500, 504 (2003). An ineffective-assistance claim may be raised in a collateral proceeding under § 2255 regardless of whether the movant could have raised the claim on direct appeal. Id.
The Sixth Amendment guarantees criminal defendants the right to the effective assistance of counsel during their criminal proceedings, Missouri v. Frye. ___ U.S. ___, 132 S.Ct. 1399, 1404 (2012); and this right applies to "all critical' stages of the criminal proceedings." Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (citation omitted). Given his guilty plea, Petitioner's claims for relief are limited as a matter of law:
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the ...