United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, District Judge.
This matter is before the Court on movant Donnell McCloud's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255, filed by retained counsel Mr. Daniel Juengel. The government filed its Response to the Motion to Vacate and movant filed a Reply, so the matter is fully briefed. The Court held an evidentiary hearing on some of movant's claims on May 3, 2012. For the following reasons, the Court concludes that all of movant's claims are without merit and should be dismissed.
On February 9, 2008, Donnell McCloud was indicted on one count of Production of Child Pornography in violation of 18 U.S.C. § 2251(a). On July 7, 2008, movant filed motions to dismiss the indictment and to suppress evidence and statements. On July 15, 2008, United States Magistrate Judge Frederick R. Buckles held an evidentiary hearing and heard testimony on movant's motions. On August 21, 2008, a superseding indictment was returned charging movant with three counts of Production of Child Pornography in violation of 18 U.S.C. § 2251(a), and three counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(5)(B). On September 2, 2008, movant filed motions to dismiss the superseding indictment and to suppress evidence and statements. On September 4, 2008, Judge Buckles heard additional testimony on these motions. On September 23, 2008, a supplemental evidentiary hearing was held and additional testimony was adduced. On October 2, 2008, another supplemental evidentiary hearing was held and movant testified in support of his motion to suppress. On October 23, 2008, Judge Buckles issued a Report and Recommendation, recommending that the motion to dismiss the indictment and the motions to suppress evidence and statements be denied.
On October 29, 2008, the government filed a Motion in Limine to Exclude "Mistake of Age" Evidence, Argument or Defense. On November 10, 2008, the Court adopted the Magistrate Judge's Report and Recommendation and denied the motions to dismiss indictment and suppress evidence and statements. On November 13, 2008, the Court granted the government's motion in limine to exclude mistake of age evidence.
On November 23, 2008, the day before trial, the government dismissed the three counts of Possession of Child Pornography against movant, and movant filed a Motion for Reconsideration of Prior Ruling Re: Mistake of Age. Trial began on November 24, 2008 and the Court denied movant's Motion for Reconsideration. On November 26, 2008, after three days of trial, the jury found movant guilty as charged on the three counts of Production of Child Pornography. A Pre-Sentence Investigation Report was prepared and on February 24, 2009, a sentencing hearing was held. The Court sentenced movant to thirty years on each of the three counts to run concurrently. On March 3, 2009, movant filed a Notice of Appeal. Movant's appeal asserted five claims:
(1) the district court erroneously denied his motion for judgment of acquittal at the close of all evidence with respect to Count 5 [Production of Child Pornography involving victim G.D.] because the government failed to produce any evidence that McCloud actually produced the images or otherwise caused the images to be produced; (2) [18 U.S.C.] § 2251(a) is unconstitutional because it does not require knowledge of a minor's age or permit a reasonable-mistake-of-age defense, in violation of the First Amendment and the Fifth Amendment; (3) in the alternative, the district court erred in not permitting an affirmative mistake-of-age defense, as § 2251(a) does not preclude such a defense; (4) § 2251(a) is an unconstitutional exercise of Congress's authority under the Commerce Clause as applied to McCloud because the memory card and photo paper at issue are not instrumentalities of interstate commence; and (5) even if the memory card and photo paper are "instrumentalities, " the government failed to prove they had traveled in interstate commerce.
United States v. McCloud, 590 F.3d 560, 565 (8th Cir. 2009). The Court of Appeals rejected each of movant's contentions and affirmed his conviction on December 29, 2009. Id. at 570. On March 25, 2010, movant filed a petition for a writ of certiorari with the Supreme Court, which was denied on October 4, 2010. McCloud v. United States, No. 09-1177 (Oct. 4, 2010). On October 3, 2011, petitioner timely filed the instant Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside, or Correct Sentence. The Motion was accompanied by a Memorandum of Law that sets forth the specific claims.
Movant raises the following grounds in his § 2255 Motion, all of which allege the ineffective assistance of trial counsel. Movant asserts that trial counsel:
(1) failed to adequately advise movant as to whether movant should testify on his own behalf, and put movant's testimony on after the close of the government's case-in-chief (Ground 1);
(2) incorrectly advised movant as to the government's burden of proof by incorrectly advising movant that the government would have to prove movant knew the victims were underage, that a mistake of age defense was available for the charges against him, and that such a defense would likely be successful (Ground 2);
(3) failed to provide movant the necessary information from which movant could decide whether he should plead guilty pursuant to the government's plea offer, and incorrectly told movant on the day of trial that he would be exposed to a potential thirty-year sentence if he were to plead guilty (Grounds 1 and 2);
(4) failed to move for a continuance on the first day of trial in order to allow movant to obtain new counsel or to represent himself (Ground 3);
(5) failed to challenge issuance of the 2008 search warrant and failed to assert that the 2008 search warrant was not supported by probable cause, and failed to effectively argue that items obtained from the warrantless 2004 search should be suppressed because Theresa Strong did not have actual or apparent authority to consent to the search (Ground 4);
(6) failed to move for dismissal of the indictment on the basis that 18 U.S.C. § 2251(a) is void for vagueness and under the rule of lenity (Ground 5);
(7) failed to object to prejudicial testimony regarding (a) physical assaults and a missing tooth; (b) 2004 allegations against movant that were never charged; (c) evidence of the death of victim G.D.; and (d) the blue bag containing photographs of movant with other women; failed to object when the counts against movant were not renumbered after Counts II, III and IV were dismissed; and failed to object when the prosecutor handed movant a photograph and counsel knew that movant could not see it because he lacked proper eyewear (Ground 6);
(8) failed to explain to movant the limitations on his defense, specifically that the victims' sexual history would not be admissible at trial (Ground 7);
(9) failed to assert viable defenses, by failing to: (a) challenge victim C.W.'s testimony that she and movant took film to Walmart to be developed; (b) challenge the fact that movant did not use Fuji film paper, which was the basis for the exercise of federal jurisdiction over movant; and (c) challenge the fact that movant did not use camera memory cards, which was the basis for the exercise of federal jurisdiction over movant with respect to victim K.G. (Ground 7);
(10) failed to argue the fatal variance in the charging document (Ground 8);
(11) failed to effectively introduce relevant evidence (Ground 9);
(12) failed to obtain eyeglasses for movant so that movant could adequately participate in the defense of his case (Ground 10); and
(13) failed to proffer movant's testimony, without having him testify (Ground 11).
III. Evidentiary Hearing
On January 23, 2012, the Court issued an order for an evidentiary hearing on movant's § 2255 motion limited to the claims in Grounds One, Two and Three, as set forth in paragraphs (1)-(4) above. The hearing was held on May 3, 2012. Movant presented the testimony of his sister, Chezia McCloud; his mother, Darlene McCloud; and himself. The government presented the testimony of movant's trial counsel, Robert P. Taaffe, Jr. At the conclusion of the hearing, the parties were ordered to submit proposed findings of facts and conclusions of law on the claims that were the subject of the hearing.
IV. Findings of Fact
In February 2008, movant was indicted in federal court on one count of Production of Child Pornography in violation of 18 U.S.C. § 2251(a), concerning victim K.G. See Doc. 1, 4:08-CR-156 CAS (E.D. Mo.); Gov't Ex. 5. In April 2008, movant retained attorney Robert Taaffe to represent him in state court on statutory rape charges. H. Tr. 108. The defense to the state charges focused on a mistake of age defense, i.e., that movant believed the victim was an adult. H. Tr. 13, 69, 108. Mr. Taaffe discussed this defense with movant and movant's sister, Chezia McCloud. H. Tr. 7, 40, 115. In June 2008, movant was removed from state custody to face the federal charge of Production of Child Pornography. H. Tr. 110; Govt. Ex. 5. In July 2008, Mr. Taaffe had an associate research the possibility of asserting that the necessary interstate nexus for the federal charge was lacking. The research showed, however, that the interstate commerce evidence was sufficient. H. Tr. 111-12; Gov't Ex. 4 at 4. Nonetheless, Mr. Taaffe filed a motion to dismiss the indictment on that basis, but did not expect it to succeed. H. Tr. 112. In August 2008, the government filed a superseding indictment containing three counts of Production of Child Pornography in violation of 18 U.S.C. § 2251(a), and three counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(5)(B), concerning victims K.G., G.D., and C.W. See Doc. 30, 4:08-CR-156 CAS; Gov't Ex. 5.
Mr. Taaffe pursued a mistake of age defense as long as the possession of child pornography counts were pending because federal law permits a mistake of age defense for possession but not production of child pornography. H. Tr. 112-13. Mr. Taaffe's initial discussions with movant led to the filing of a motion to suppress evidence from a 2004 search. H. Tr. 113. Mr. Taaffe filed multiple motions to suppress and to dismiss the indictment. Gov't Ex. 5. There were multiple hearings on the motions but they were ultimately unsuccessful. H. Tr. 114-15. Mr. Taaffe or his associates met with movant six times in person, excluding court appearances. H. Tr. 108, 151. These meetings included a review of the computer and physical evidence. H. Tr. 76-77. Mr. Taaffe also met with defendant's sister Chezia McCloud or his mother fourteen times. H. Tr. 109.
On October 29, 2008, the Government filed a Motion in Limine to Exclude Mistake of Age Evidence, Argument, or Defense. H. Tr. 118; Gov't Ex. 5. On November 8, 2008, in a meeting between Mr. Taaffe and movant at the jail, Mr. Taaffe reviewed with movant the government's motion in limine to exclude the mistake of age defense. Gov't Ex. 4 at 7. Mr. Taaffe told movant that if the government's motion in limine was granted, he had no defense. H. Tr. 119. On November 10, 2008, the Court denied movant's motions to suppress evidence, motion to suppress statements, and motions to dismiss the indictment. Gov't Ex. 5. November 13, 2008, the Court granted the government's motion in limine to exclude mistake of age evidence, argument or defense. H. Tr. 118; Gov't Ex. 5. On November 16, 2008, in a recorded telephone call, movant and his sister Chezia McCloud discussed the fact that the government was not going to have to show that movant knew the girls were underage. H. Tr. 20-21; Gov't Ex. 1. By November 16, 2008, movant knew that the Court had excluded the mistake of age defense as to all three victims. H. Tr. 73. Mr. Taaffe correctly advised movant that the mistake of age defense had been excluded.
On Friday, November 21, 2008, with the trial set to begin on Monday, November 24, 2008, movant met with Mr. Taaffe, the Assistant U.S. Attorney prosecuting the case, the case agent and a St. Louis Metropolitan Police detective. The purpose of the meeting was for movant to provide information about victim G.D.'s death. H. Tr. 78. Movant never provided any information of value. Id . During the meeting, the Assistant U.S. Attorney told movant that mistake of age was not a defense. H. Tr. 80. The Assistant U.S. Attorney also offered movant a plea deal under which movant would plead guilty to one count as to victim K.G.. H. Tr. 52. Movant knew the statutory minimum sentence for the crime was fifteen years. H. Tr. 53. The Assistant U.S. Attorney told movant that if he went to trial he would receive a sentence of thirty years, but that if he pled guilty, he could throw himself on the mercy of the Court and argue for the minimum sentence of fifteen years. H. Tr. 80, 129-30. Movant responded that whether he got fifteen years or thirty years, it was all the same, it didn't matter. H. Tr. 81, 130-31.
On Sunday, November 23, 2008, Mr. Taaffe filed a motion for reconsideration of the Court's ruling on the government's motion in limine as to mistake of age, and the motion was denied on the first day of trial. H. Tr. 119; Gov't Ex. 5. After the mistake of age defense was excluded and before trial began, Mr. Taaffe again told movant and his mother that there was no defense at trial. H. Tr. 119-20. Mr. Taaffe discussed with movant that if he pled guilty, he could argue for the statutory minimum of fifteen years despite the fact that the Sentencing Guidelines called for a longer sentence. H. Tr. 120. Mr. Taaffe told movant that if he went to trial he would get thirty years, so he was betting fifteen years that he would prevail on appeal, and Mr. Taaffe's research indicated that the circuit courts of appeal were not on their side. H. Tr. 120. Mr. Taaffe had this conversation with movant before trial and after the motion for reconsideration had been denied. H. Tr. 121. Mr. Taaffe told movant that if he went to trial, he would lose. H. Tr. 122.
On the morning of trial, after Mr. Taaffe told movant that he could not get the mistake of age defense in, movant still wanted to go to trial. H. Tr. 125. Mr. Taaffe testified there were no other potential defenses to the charge, and "the only thing we could do would be to slime in the [mistake of age] defense somehow, " try to get before the jury that movant didn't know how old the victims were and "seek some sort of jury nullification." Id . He continued to advise movant that they would lose the trial. H. Tr. 126.
Movant could not accept the idea of pleading guilty and serving at least a minimum of fifteen years. H. Tr. 121, 124. Movant was despondent and apathetic and wanted a trial despite Mr. Taaffe's statement that he would lose at trial and receive a thirty-year sentence. H. Tr. 121. Movant wanted to mount a defense that he did not take the videos or photographs and that this could not be proved. H. Tr. 122. Mr. Taaffe did not consider this to be a viable defense because victims K.G. and C.W. stated that movant took the videos and photographs and movant's voice was on the videos. H. Tr. 85, 123; Tr. Vol. II 39, 40, 99. Mr. Taaffe told movant he was "not even going in that direction" because of the victims' statements, and Mr. Taaffe had viewed the videos and movant was in them and his voice was in them. Mr. Taaffe testified, "It just wasn't a viable defense." H. Tr. 123. Mr. Taaffe continued to tell movant that if he went to trial he would lose, but he did not tell movant that he must plead guilty. H. Tr. 124. Movant knew that the minimum sentence was fifteen years but he never indicated to Mr. Taaffe that he was willing to plead to a sentence of at least fifteen years. Id .; H. Tr. 53.
On the day before trial, movant's sister Chezia McCloud told him that he should not plead guilty because he still had state charges outstanding. H. Tr. 23, 24. That was her last advice to movant concerning whether he should plead guilty. H. Tr. 24. Movant's mother Darlene McCloud testified that on the first day of trial, after the Court denied movant's motion for reconsideration, Mr. Taaffe told her, movant and her other daughter, Tamara McCloud, that he recommended movant not plead guilty because the Court was wrong in excluding the mistake of age evidence, and he was sure they would win on appeal on that issue. H. Tr. 28-29. Darlene McCloud also testified that Mr. Taaffe told them the mistake of age evidence could still come in and it was still a defense, despite the Court's ruling. H. Tr. 32. Darlene McCloud testified that movant listened to Mr. Taaffe's advice not to plead guilty. H. Tr. 32-33. She also testified, however, that movant never wanted to plead guilty, H. Tr. 33, and "needed to reserve his right to appeal" the mistake of age ruling. H. Tr. 34.
Movant testified that Mr. Taaffe told him the chances were still excellent of getting in a mistake of age defense based on the motion for reconsideration that was pending at the time of his meeting with the Assistant U.S. Attorney. Movant further testified, "[I]f I really found out that none of my defenses was viable then it would have been stupid not to take 15, and I could have received 30. It would just kind of been stupid if I had no viable defenses left." H. Tr. 53.
The Court having heard the testimony and observed the demeanor of the witnesses, and being familiar with the underlying criminal case, finds Darlene McCloud's testimony that Mr. Taaffe advised movant not to plead guilty on the morning of trial and stated that he was sure to win on the mistake of age issue on appeal is not credible or worthy of belief. The Court also finds movant's testimony not credible that Mr. Taaffe told him there was an excellent chance of the Court granting his motion for reconsideration as to exclusion of the mistake of age defense. Further, the Court does not believe movant's self-serving testimony that he would have pleaded guilty if he had known he had no viable defenses. The evidence shows that movant did not want to plead guilty at any time.
On the morning of trial, Mr. Taaffe showed movant the Sentencing Guidelines manual and that the guideline sentence was close to thirty years. H. Tr. 142. Mr. Taaffe informed movant of the Guideline range of sentence and statutory minimum sentence, and told him they could argue for the minimum sentence. H. Tr. 143. The Amended Final Presentence Investigation Report (PSR) found the total offense level to be 44. If movant had pled guilty and received a two-level reduction for acceptance of responsibility, his total offense level would have been 42. With movant's Criminal History Category of I, his sentencing guideline range would have been 360 months to life. The statutory range of punishment is fifteen to thirty years for each of the three counts of Production of Child Pornography. Mr. Taaffe correctly advised movant of the sentencing exposure if he pled guilty.
Mr. Taaffe believed that it made no difference in the outcome of the trial if movant testified or not, because if the jury followed the instructions, movant would be convicted. H. Tr. 127. Mr. Taaffe believed that movant's testimony might humanize him before the jury and advised movant that might be advantageous to him. H. Tr. 127. Mr. Taaffe did not tell movant that he should testify because he had nothing to lose. H. Tr. 152. Mr. Taaffe left the decision whether to testify up to movant. H. Tr. 57, 152. Before movant testified, Mr. Taaffe again told him that mistake of age evidence was not admissible. H. Tr. 127. Movant decided to testify because Mr. Taaffe didn't advise him not to, and because Mr. Taaffe had said "it would probably be a good idea to get the jury to humanize" him. H. Tr. 90.
Movant testified that he asked Mr. Taaffe to seek a continuance on the first day of trial after the motion for reconsideration was denied. H. Tr. 85. Movant testified that he believes Mr. Taaffe asked for a continuance and the Court denied it. H. Tr. 86. Movant testified he at first wanted a continuance to go over other defenses than mistake of age, and then wanted a continuance to hire another attorney. H. Tr. 85. Movant had contacted another attorney, his § 2255 counsel Mr. Juengel, nine months before trial but did not retain Mr. Juengel at that time or have any further communication with him prior to trial. No attorney was ready to enter an appearance for movant on the first day of trial. H. Tr. 87. Mr. Taaffe testified he has no memory of movant telling him that he wanted a continuance on the first day of trial. H. Tr. 129. The record in the underlying criminal case does not contain any reference to a request for a continuance.
Movant was charged with three counts of Production of Child Pornography involving three separate victims and episodes. One of the victims, G.D., was deceased by the time of trial. The government presented evidence from Detective Karon Crocker that she met G.D. when G.D. was fourteen years old and that ninety-six of the child pornography photographs from petitioner's blue bag depicted G.D. Tr. Vol. II 58, 65. Detective Crocker testified that she saw G.D. sign her name on the back of photographs of G.D. that were introduced into evidence. Tr. Vol. II 69-70. FBI Special Agent Ann Pancoast introduced the certified birth certificates of all three victims, including G.D., and the death certificate of G.D. Victims K.G. and C.W. testified that petitioner took photographs or videos of each of them engaged in sex acts with him. Tr. Vol. II 39, 99. The child pornography photographs of victim C.W. were found in the same blue bag as those of victim G.D. Tr. Vol. II 84.
Mr. Taaffe made a motion for acquittal at the end of the government's case on Count V concerning victim G.D., the deceased victim, on the basis of insufficient evidence. The motion was denied. Tr. Vol. II 112. Movant then presented Greg Chatten, a computer expert, who testified that his analysis of movant's computer use did not show that movant was seeking minor females. Tr. Vol. II 125-26. After Mr. Chatten's testimony, movant, through counsel, told the Court that he was unable to decide if he wanted to testify. Tr. Vol. II 138. Movant finally told the Court that he "would like to testify if I could testify tomorrow, sir." Tr. Vol. II 142. Mr. Taaffe did not tell movant that his testimony would waive any argument that the Court had incorrectly denied his motion for acquittal on Count V at the close of the government's case-in-chief. H. Tr. 128. Mr. Taaffe concluded that a dismissal of Count V involving G.D. would have no impact on movant's sentencing guidelines because the Court could consider uncharged crimes. Id . Mr. Taaffe determined that movant would still be facing a thirty year or life sentence. Id.
On the final day of trial, movant's former girlfriend Makala Todd testified that movant had not held victim K.G. against her will. Tr. Vol. III 10-11. Movant then took the stand and testified. Movant admitted he had taken photographs of C.W. in the nude and engaged in oral sex, nude photographs of G.D., and videos of K.G. engaged in sex acts. Tr. Vol. III 37, 39, 40, 42, 44. Movant denied that the photographs of G.D. and K.G. admitted in evidence were those photos, however. Tr. Vol. III 38, 42. Movant's testimony repeatedly attempted to bring in mistake of age issues. Tr. Vol. III 16, 20, 22, 31, 32, 35; H. Tr. 30. Movant's testimony that he had taken child pornography photographs but not the photographs on Fujifilm paper as charged in the indictment was a surprise to Mr. Taaffe and came from movant. H. Tr. 129.
After the trial movant wrote Mr. Taaffe a letter that stated in pertinent part:
Let me start off by thanking you for representing me. I thought your cross on the government wittnesses [sic] was above and beyond normal standards. Your closing arguments, what can I say but outstanding. My only fault I thought in closing was that you didn't point out that the only person to state I used the camera was KG, and you already did a superb job at pointing out her untruthfulness.
Gov't Ex. 2 at 1; H. Tr. 94.
The letter also stated:
Basically you did good with what you had to work with. Everyone fumbles at times but this is my life. I don't want to discuss what should be said at sentencing at all, never. I refuse to plea at all to that [ ] character of a judge. Let them give me whatever, I don't ...