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Trammel v. United States

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

August 8, 2016

EDWARD TRAMMEL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner’s motion to Vacate, Set Aside or Correct Sentence [Doc. #1] pursuant to 28 U.S.C. § 2255. The United States has responded to the motion. For the reasons set forth below the Motion will be denied without hearing.

         Facts and Background[1]

         On August 17, 2010, law enforcement officers received a phone call from Petitioner’s neighbor stating that Petitioner had been videotaping Petitioner’s step- daughter, S.H., while she was showering. Officers responded to Petitioner's residence located at 9908 Juniper Court. St. Louis.

         When the officers arrived at the location they spoke with S.H. She informed that, earlier in the day, she located a cell phone in the bathroom while she was taking a shower. The cell phone was in video-record mode. As she examined the cell phone, she observed another video from the previous day of her showering. S.H. left the house and went to a neighbor's house, whereupon the police were called.

         Officers seized a cell phone from Petitioner, which was identified by Victim S.H. as the one she had found in the bathroom. The police officers viewed a video-recording depicting Petitioner positioning the cell phone in the bathroom to capture images of the shower and then, within ten seconds of Petitioner disappearing from the view of the camera, victim S.H. entering the bathroom wearing a towel, removing the towel, and entering the shower.

         Petitioner was interviewed and after being advised of his constitutional rights pursuant to Miranda v. Arizona, Petitioner admitted that he had video-recorded his stepdaughter with his cell phone while she was showering. He also acknowledged that he had video-recorded his step- daughter on previous occasions while she was taking a shower. He also stated that he masturbated to a prior video that he had taken of her in this manner.

         The cell phone was forensically examined and the contents of the phone included images of victim S.H. taking a shower, with those images depicting the lascivious display of S.H.'s genitals. Petitioner admitted that he took the above-identified images of S.H. He further admitted he utilized the AT&T Samsung Propel earlier described to produce the images. Petitioner further admitted that the AT&T Samsung Propel earlier described was manufactured outside the State of Missouri.

         S.H. was fourteen years old at the time Petitioner produced the above-described images of the victim. During the time Petitioner produced the above-described images, Petitioner was the step-father of S.H. and, therefore, was a "parent, relative, or legal guardian of the minor involved in the offense" or S.H. was "otherwise in the custody, care, or supervisory control of the defendant."

         PROCEDURAL HISTORY

         A federal grand jury sitting in St. Louis returned a two-count indictment against Petitioner on June 2, 2011, charging him the production of child pornography in Count I and the possession of child-pornography in Count II. Petitioner elected to enter a plea of guilty on March 9, 2012, to Count I of the indictment, in exchange for the Government dismissing Count II.

         On July 9, 2012, Petitioner appeared before this Court for sentencing. A sentence of 180 months incarceration, which was the mandatory minimum, was imposed. Petitioner did not appeal his conviction or sentence to the Eighth Circuit Court of Appeals.

         On April 29, 2013, this Court received Petitioner’s § 2255 motion for post-conviction relief. The motion was timely filed. For the reasons set forth below, however, the request for post-conviction relief will be denied.

         CLAIMS

         There are four claims for relief raised by Petitioner. First, he claims he is actually innocent. Second, he claims he received ineffective assistance of counsel. Third, he asserts prosecutorial misconduct. Fourth, he asserts “plain error.”

         1. ACTUAL INNOCENCE

         Petitioner asserts:

The Essential Elements of the charged crime were not present in this case. The “Dost Factors” are the standard and they were not met. There was no judicial finding of fact on this issue. The key Essential Elements of “Lascivious ...

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