United States District Court, Eastern District of Missouri, Eastern Division
MEMORANDUM AND ORDER
JEAN C. HAMILTON, UNITED STATES DISTRICT JUDGE.
This matter is before the Court upon petitioner William Douglas Hampton’s motion for reconsideration of the Court’s dismissal of this action, pursuant to Fed.R.Civ.P.41(b).
Petitioner filed his petition for writ of mandamus pursuant to 28 U.S.C. § 1651, in which he seeks to vacate his judgment and sentence in United States v. Hampton, 4:99CR456 JCH (E.D. Mo.). After reviewing the procedural history in this case, as well as petitioner’s application for writ of mandamus, the Court will modify the dismissal to one under 28 U.S.C. § 2255(h), as petitioner’s application for writ does not comply with the second or successive restrictions under 28 U.S.C. § 2255.
On March 13, 2000, petitioner pled guilty to four counts of production of child pornography, in violation of Title 18 U.S.C. §2251(a), and one count of possession of child pornography, in violation of Title 18 U.S.C. § 2252(a)(4)(B). See United States v. Hampton, 4:99CR456 JCH (E.D. Mo.). Petitioner was sentenced to a total of 293 months in prison, followed by 3 years supervised release, and a $500 fine. Id. Petitioner’s conviction and sentence were affirmed on appeal. See United States v. Hampton, 260 F.3d 832, 834 (8th Cir. 2001), cert. denied, 535 U.S. 1058 (2002).
Petitioner filed his first motion to vacate, pursuant to 28 U.S.C. § 2255 on June 2, 2003. In his motion to vacate, petitioner argued that federal jurisdiction over his case did not exist. He insisted that Congress had overstepped the limits of the Commerce Clause in criminalizing his interstate conduct. Petitioner had raised this issue on direct appeal as well, and the Eighth Circuit denied the claim as follows:
Federal jurisdiction over Hampton’s crimes derives from the portions of §§ 2251(a) and 2252(a)(4)(B) that criminalizes the production and possession of child pornography using materials transported in interstate commerce. Hampton concedes that the videotapes on which he recorded his actions were manufactured outside the state of Missouri. Thus, Hampton, in producing and possessing the tapes, committed federal crimes even though all of his actions took place within Missouri. He contends that, in criminalizing his interstate conduct, Congress overstepped the constitutional authority granted it by the interstate commerce clause, and that there is therefore no federal jurisdiction over his case. We disagree.
Section 2251(a) states in relevant part:
Any person who uses, persuades, induces, entices or coerces any minor to engage in…any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished…if the visual depiction was produced using materials that have been mailed, shipped or transported in interstate or foreign commerce by any means… Section 2252(a)(4)(B) criminalizes knowing possession of such material.
Hampton acknowledges that we approved § 2252(a)(4)(b) as within Congress’s commerce power in United States v. Bausch, 140 F.3d 739, 741 (8th Cir. 1998), but argues that Bausch is no longer good law in light of the Supreme Court’s holdings in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 626 (1995). Since those cases were decided, however, we have held that Bausch continues to control the constitutionality of federal criminalization of child pornography produced with materials that have traveled in interstate commerce and accordingly affirmed a conviction under § 2251(b). United States v. Hoggard, 254 F.3d 744, 746 (8th Cir. 2001) (upholding conviction for interstate conduct in permitting minor children to engage in sexually explicit conduct for the purpose of producing a visual depiction where the film and camera used to create the depiction had been transported in interstate commerce). Accordingly, Hampton’s constitutional attack on the statute fails.
United States v. Hampton, 260 F.3d at 834-35.
Based on the reasoning espoused in the Eighth Circuit’s opinion of Hampton’s direct appeal, this Court denied petitioner’s § 2255 motion. See, e.g., United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001), cert. denied, 534 U.S. 1083 (2002) (holding that an issue resolved on direct appeal cannot be relitigated in a § 2255 motion. Consequently, petitioner’s motion to vacate was denied on August 10, 2004. Petitioner appealed, and the Eighth Circuit denied petitioner's application for certificate of appealability. Hampton v. United States, No. 05-3542 (8th Cir. 2005).
On October 1, 2014, petitioner filed a petition for writ of mandamus, pursuant to 28 U.S.C. § 1651, in this Court. The Court ordered petitioner to pay the full $400 filing fee or submit a motion to proceed in forma pauperis, along with a certified copy of his prison account statement, but he failed to do so in a timely manner. As such, on November 14, 2014, the Court dismissed petitioner’s application for writ of mandamus pursuant to Federal Rule of Civil Procedure 41(b).
After dismissal of the action, on November 17, 2014, petitioner filed a motion to proceed in forma pauperis, along with a copy of his prison account statement. The Court denied his motion to proceed in forma pauperis as moot, given the fact that dismissal of the action had already occurred. On November 24, 2014, ...