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Greenwell v. United States

United States District Court, E.D. Missouri, Eastern Division

August 2, 2016




         This matter is before the Court on Petitioner Jeffrey Greenwell’s pro se Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 (“Motion to Vacate”). The government has filed a response, and Petitioner has replied. The matter is fully briefed and ready for consideration. For the following reasons, the Motion to Vacate will be dismissed.

         Procedural History

         On December 3, 2009, Petitioner was indicted on one count of Production of Child Pornography. See United States v. Greenwell, No. 4:09-CR-757 CAS (E.D. Mo.). Assistant Public Defender Nanci McCarthy was initially appointed to represent Petitioner, and on December 14, 2009, Assistant Public Defender Brian Witherspoon was substituted as counsel. On January 21, 2010, a superseding indictment was returned charging Petitioner with three counts of Production of Child Pornography. On June 23, 2010, Mr. Witherspoon’s motion to withdraw was granted, and Ms. JoAnn Trog was appointed that same day to represent Petitioner.

         On February 3, 2011, a second superseding indictment was returned charging Petitioner with five counts of Production of Child Pornography under 18 U.S.C. § 2251(a). On June 22, 2011, Petitioner pleaded guilty to all five counts of violating § 2251(a), and on October 5, 2011 he was sentenced to a total term of 1200 months imprisonment. That term consisted of 240 months on each of counts one through five, all terms to be served consecutively.[1] Petitioner was also sentenced to a lifetime of supervised release.

         On October 18, 2011, Petitioner filed a Notice of Appeal, contending that the district court procedurally erred by not properly considering the factors set out in 18 U.S.C. § 3553(a), and by giving significant weight to the United States Sentencing Guidelines and the statutory mandatory minimums for child pornography offenses which were unduly harsh, not based on empirical evidence, and duplicative. On August 8, 2012, the Court of Appeals affirmed Petitioner’s convictions and sentences. United States v. Greenwell, 483 F. App’x. 305 (8th Cir. 2012). On December 26, 2012, Petitioner filed a petition for writ of certiorari with the Supreme Court, which was denied on January 16, 2013. Greenwell v. United States, 133 S.Ct. 967 (Mem) (2013). On December 23, 2013, Petitioner timely filed the instant Motion to Vacate.

         Grounds for Relief

         In the instant Motion to Vacate, Petitioner raises four grounds for relief, all of which allege ineffective assistance of counsel. Petitioner asserts that counsel was ineffective for:

1. Failing to challenge the jurisdiction of the Court;
2. Allowing Petitioner to sign a non-binding plea agreement;
3. Requesting a competency evaluation and withdrawing from Petitioner’s case; and
4. Allowing Petitioner to be coerced by the “District Attorney”[2] to plead guilty. Motion to Vacate at 4-8.


         During his Change of Plea hearing held on June 22, 2011, Petitioner was placed under oath, and stated that he understood he was subject to the penalties of perjury if he failed to answer truthfully. The Court and Petitioner then had the following exchange:

THE COURT: Mr. Greenwell, is it correct what your attorney, Ms. Trog, said, that you wish to enter a guilty plea in this matter, that you’ve gone over the Plea Agreement that’s been sent to you by [the prosecuting attorney]?
PETITIONER: Yes, Your Honor.
THE COURT: Very well. I need to ask you a few questions to make sure that your plea is voluntary and knowing, that is, you are doing this of your own free will and you understand what you’re doing.

United States v. Greenwell, 4:09-CR-757 CAS, Doc. 160 (“H. Tr.”) at 2-3.

         In response to questioning from the Court, Petitioner testified that he was thirty-nine years old, had completed the twelfth grade, was not under the influence of any drugs, alcohol or medication, and was not suffering from any mental disease or defect. Id. at 3.

         The prosecuting attorney then stated that the range of punishment on each count was from 15 to 30 years imprisonment, plus an additional fine, special assessment, and up to a lifetime term of supervised release. Id. The government then stated: “Your Honor, as far as the sentences, the 15 to 30 year sentence on each count, those can be run concurrently; that is, together, or consecutively, on top of each other.” Id. at 3-4. In response to questioning from the Court, Petitioner stated that he understood. H. Tr. at 4.

         The prosecuting attorney then presented the government’s evidence that it could prove beyond a reasonable doubt had the matter gone to trial, and specifically:

In August of 2009, the U.S. Department of Justice received information that an individual with the nickname “Muddyfeet” was molesting children and had produced child pornography. Images of a minor male in the lascivious display of his genitals were sent by “Muddyfeet” to a cooperating individual. Internet service provider records found that the IP address for “Muddyfeet” resolved to the account of the defendant in Sullivan, Missouri.
Investigators subsequently identified the minor male in the photographs as B.E., a boy under the age of 12. B.E. was interviewed and stated the defendant had taken photographs of B.E.'s nude penis.
On October 23rd, 2009, a valid Franklin County Circuit Court search warrant was executed at the defendant's residence in Sullivan in the Eastern District of Missouri. Two computers, hard drives, a Nikon digital camera, a Sony Handycam camera, and a Casio digital camera and numerous CDs, DVDs were seized among other items.
The next day the defendant's landlord found another Casio camera wrapped in clothing in defendant's dresser. He gave that camera to the Franklin County Sheriff's Department. Two subsequent valid Franklin County Circuit Court search warrants were issued to examine the seized material.
The defendant was arrested, advised of his Miranda rights, and waived his rights. He told the investigators that he had taken photographs of B.E.'s nude penis and had touched B.E.'s nude penis with his hand. The defendant babysat for B.E. He stated that he had encrypted his hard drives. He stated that he had made “Scooby Doo” introductions to several child pornography videos that he had received from other individuals. Those individuals had produced the child pornography videos.
He stated he preferred boys between the ages of eight and 12. He stated that he was the monitor of the IRC trading channel for the Undernet channel known as “aLL bois.” He stated that he used the screen name of “Muddyfeet” and traded child pornography with others.
The defendant told investigators that he had taken photographs of the nude penis of another minor male, K.A., with his Casio camera. The embedded data on the child pornography images of B.E. showed that they were taken with a Casio brand digital camera. Between January 1st, 2007 and October 23rd, 2009, at defendant's residence in the Eastern District of Missouri, the defendant used B.E. to engage in sexually explicit conduct; that is, the lascivious exhibition of B.E.'s genitals and defendant performing oral sex on B.E. And defendant took photographs of such sexually explicit conduct with defendant's ...

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