United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES SHAW UNITED STATES DISTRICT JUDGE
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.
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.
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. Petitioner was
also sentenced to a lifetime of supervised release.
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.
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” to plead guilty. Motion to Vacate at 4-8.
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
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.
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.
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.
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
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
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 ...