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Dempsey v. United States

United States District Court, W.D. Tennessee, Eastern Division

March 7, 2018

ROBERT G. DEMPSEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING § 2255 MOTION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          J. DANIEL BREEN UNITED STATES DISTRICT JUDGE.

         Petitioner, Robert G. Dempsey, a federal prisoner, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (“Petition”). (Case Number (“No.”) 14-cv-01349, Docket Entry (“D.E.”) 1.)[1] For the following reasons, the Petition is DENIED.

         BACKGROUND

         On September 4, 2013, pursuant to an agreement with the government, Dempsey pleaded guilty to one count of knowingly transporting child pornography in violation of 18 U.S.C. § 2252(a)(1) (“Count 1”), and one count of knowingly possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (“Count 2”). (No. 13-cr-10047, D.E. 22; id., D.E. 21 at PageID 36-37; id., D.E. 20.) Assistant Federal Public Defender Randolph Alden was appointed to represent Defendant. (Id., D.E. 9.)

         By the terms of the plea agreement, the government agreed to recommend that Defendant be sentenced in the middle of the advisory guidelines sentencing range, and further agreed not to oppose his receiving acceptance of responsibility credit. (Id., D.E. 21 at PageID 37.)Petitioner waived his right to appeal his sentence under 18 U.S.C. § 3742 and his right to collaterally attack his sentence under 28 U.S.C. § 2255. (Id., D.E. 21 at PageID 38.) He did not, however, consent to waive his right to challenge his conviction and sentence on the ground that his plea/waiver was obtained through the ineffective assistance of counsel or prosecutorial misconduct, or was otherwise involuntary. (Id., D.E. 21 at PageID 38.)

         The United States Probation Office prepared a Presentence Report (“PSR”), which set forth the offense conduct. According to the PSR, “the two main victims . . . made a complaint to [the] South Ogden[, ] [Utah, ] Police regarding sexual abuse committed against them by Robert Dempsey” since they were children. (PSR at 5.) The victims (hereinafter, “Child 1” and “Child 2”) had been friends when they were children.

         The abuse began when Child 2 was seven years old, and occurred during hikes and in the basement of Dempsey's residence. Defendant “often spoke to” the victims “about drug use” and “masturbation, oral sex, condom use, foreplay, pornography, and other sexually explicit topics.” (Id. at 5, 6.) He also played “Truth or Dare” with them. “[O]ne of the dares was for [Child 1] to sit in [Defendant's] lap and pretend to ‘French kiss' him.” (Id. at 5.) Child 2 recalled that Child 1 “straddled [Defendant], facing him with her arms around his neck.” (Id.) Both Child 1 and Dempsey were nude, and Child 2 “took pictures of the ‘dare.'” (Id.)

         Child 2 told the police that Defendant “would take pictures of her and [Child 1], ” “[s]ometimes . . . in provocative poses, and the poses were part of the dares.” (Id.) Dempsey “would then instruct them not to tell anyone about the game because no one would understand.” (Id. at 6.) Child 2 recalled a time when she, Child 1, and Defendant took a shower together, and another time when he “covered his naked body in baby oil and lay down [o]n the floor, ” while having the victims “slide all over his body while they were also naked.” (Id.)

         During hikes, Dempsey would “find secluded places” and the victims “would play naked together while [Defendant] would photograph them.” (Id.) Child 2 told the police “that all of the physical touching occurred before she was twelve years of age.” (Id.) Dempsey told Child 2 that she should “not . . . tell anyone and then stated to her that it was [Child 1's] idea anyway.” (Id.) She told authorities “that years after the abuse, [Defendant] showed her the photos of them naked and discussed their ‘artistic and photographic merit.'” (Id.)

         Child 2 reported that “she had touched [Defendant's] genitals but probably less than five times, ” that “he had not touched her genitals but . . . did touch her breasts on occasion, sometimes as part of the Truth or Dare games.” (Id.) She “advised that [Child 1] witnessed and participated in the touching.” (Id.)

         In January 2013, Child 2 “placed a recorded phone call to [Dempsey] in an effort to get him to admit to the allegations of child abuse.” (Id.) He told Child 2 “that he fell in love with Child 1 the first time he met her, which was on a field trip when [Child 2] and [Child 1] were in the first grade.” (Id.) He admitted to having taken nude photos of them during the Truth or Dare games and while on hikes. Defendant also admitted to taking “photos of [Child 1] while [Child 2] was at dance rehearsal” and having kissed Child 1 “on a few occasions.” (Id. at 6-7.) He remembered “that [Child 1] sat in his lap while both were nude.” (Id. at 7.) He stated that he still possessed “the photos of [Child 1] and cherished them.” (Id. at 6.)

         Child 1 gave a statement to authorities in which she confirmed Child 2's version of the events. She further recounted additional details of Dempsey's abuse. (Id. at 7.)

         An investigator from the South Ogden Police Department shared the information with the Federal Bureau of Investigation, which contacted Investigator Hilburn of the Tennessee Internet Crimes Against Children Taskforce. (Id. at 5.) At the time, Dempsey “was a formal residen[t] of Ogden, Utah[, ] but was residing in Perry County, Tennessee.” (Id.) A search warrant of Dempsey's apartment was executed in April 2013. “[N]umerous photographs of the two victims” were found, most of which were of Child 1 and which constituted child erotica and child abuse “due to their sexually explicit nature.” (Id. at 8.) The investigators also “confiscated numerous printed photos, cameras, computers, film negatives, several articles of young girls' clothing, drug paraphernalia, and other items, ” including “CDs and DVDs” containing “commercially produced child abuse images that had been downloaded from the Internet [and] then copied to the discs.” (Id.) “Additional images of prepubescent females” which had been “taken with a Nikon digital camera of the same make and model as one of the cameras found in [Defendant's] residence” were also discovered. (Id.) Investigators confiscated a notebook in which Dempsey had “described his feelings towards” Child 1, starting “on the day they met during a first grade fieldtrip.” (Id.)

         In addition to setting forth the details of the offense conduct, the PSR calculated the advisory sentencing range under the U.S. Sentencing Guidelines Manual (U.S. Sentencing Comm'n 2012) (“Guidelines” or “U.S.S.G.”).[2] (PSR at 9-16.) The PSR assigned a base offense level of 32, arrived at by applying the cross-reference of U.S.S.G. § 2G2.2(c)(1). (Id. at 10.) The adjusted offense level was 40, due to an eight-level increase for specific offense characteristics: four levels because the offense involved a minor who had not attained the age of twelve years; two levels because the offense involved the commission of a sexual act or sexual contact; and two levels because the minor was in the custody, care, and supervisory control of Defendant. (Id.)

         A total offense level of 37 was arrived at after a three-point reduction for acceptance of responsibility. (Id.) Dempsey's criminal background included only a single conviction for felony attempted sexual abuse of a minor, which was reduced to a misdemeanor after his successful completion of probation. (Id. at 11.) He was placed in criminal history category I, (id. at 12), resulting in an advisory Guideline imprisonment range of 210 to 262 months, (id. at 15). The statutory range on Count 1 was 60 months (five years) minimum and 240 months (20 years) maximum. (Id. at 15.) The statutory maximum on Count 2 was 120 months (ten years). (Id.)

         Defense counsel filed a position statement regarding the PSR in which he raised a statute of limitations issue, argued that the use of the cross-reference under § 2G2.2(c)(1) of the 2012 Guidelines was a violation of the Ex Post Facto Clause, and objected to the recommended supervised release conditions. (No. 13-cr-10047, D.E. 23 at PageID 42-49.)

         At a hearing on December 3, 2013, the Court sentenced Defendant to 170 months in prison, which was below the low end of the advisory range of 210 to 262 months. (Id., D.E. 25.) A ten-year period of supervised release was imposed. (Id.) Judgment was entered on December 4, 2013. (Id., D.E. 27; id., D.E. 26.)

         Dempsey signed and placed his Petition into the prison mail system on December 17, 2014, (D.E. 1 at PageID 19), and subsequently filed a memorandum in support (D.E. 6). He asserts the following claims:

Claim 1: Counsel was ineffective by failing to object to the application of U.S.S.G. § 2G2.1(b)(2)(A) “for commission of a ‘sex act or sexual contact.'” (D.E. 1 at PageID 5.)
Claim 2: Counsel was ineffective by failing to argue double jeopardy. (Id. at PageID 6.)
Claim 3: Counsel was ineffective by failing to cite to case law in his oral presentation of the ex post facto objection. (D.E. 6 at PageID 46; D.E. 1 at PageID 7.)
Claim 4: Counsel was ineffective by failing to argue that the child pornography provisions of the Guidelines “are seriously flawed and should not have been followed.” (D.E. 1 at PageID 8.)
Claim 5: Counsel was ineffective by not challenging the government's failure to prove the element of intent for the relevant conduct of “production.” (D.E. 11 at PageID 112; D.E. 6 at PageID 56; D.E. 1 at PageID 9.)
Claim 6: Counsel was ineffective by failing to seek a reduction in the offense level due to Petitioner having played a minor or minimal role in the offenses of conviction. (D.E. 1 at PageID 10.)
Claim 7: Counsel was ineffective by failing to “adequately” argue the need to “avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar crimes.” (Id. at PageID 12.)
Claim 8: Counsel was ineffective by failing to call as a witness at sentencing a certain psychologist. (Id. at PageID 13.)
Claim 9: Counsel was ineffective by failing to attend the meeting with the U.S. Probation officer, to file written objections to factual errors in the PSR, and to object to Child 2's victim impact statement. (D.E. 6 at PageID 73; D.E. 1 at PageID 14.)
Claim 10: Counsel was ineffective by incorrectly advising him about the rights he was waiving by his plea. (D.E. 1 at PageID 16.)

         On March 31, 2017, the government responded to the Petition. (D.E. 10.) The inmate subsequently filed a reply. (D.E. 11.)

         DISCUSSION

         Respondent argues that the Petition should be denied because Dempsey waived his right to bring a § 2255 action. (D.E. 10 at PageID 89-92.) In the alternative, the government contends that the claims are without merit. (Id. at PageID 92-100.) Petitioner asserts that his waiver is invalid and his claims are meritorious. (D.E. 11 at PageID 107-120; D.E. 6 at PageID 34-75.)

         1. Legal Standards

         Petitioner seeks resentencing pursuant to 28 U.S.C. § 2255(a). The statute reads as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

         Accordingly, a prisoner seeking to vacate his sentence under § 2255 “must allege either: ‘(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.'” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). The petitioner has the burden of proving that he is entitled to relief by a preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).

         A claim of attorney ineffective assistance is of constitutional magnitude. Strickland v. Washington,466 U.S. 668, 687 (1984). To prevail on such a claim, a petitioner must demonstrate that (1) his attorney's performance was deficient, that is, “fell below an objective standard of reasonableness, ” and (2) his attorney's error prejudiced him. Id. at 687-88. The attorney's performance is presumptively reasonable, and the petitioner bears the burden of overcoming the presumption. Id. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)). “Where ineffective assistance at sentencing is asserted, prejudice is established if the [petitioner] demonstrates that his sentence was increased by the deficient performance of ...


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