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Fortenberry v. United States

United States District Court, W.D. Missouri, Western Division

November 18, 2016

JOHN RICHARD FORTENBERRY, JR., Movant,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 13-CR-00076-W-DGK-1

          ORDER DENYING IN PART MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          GREG KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Movant John R. Fortenberry, Jr. (“Fortenberry”) pled guilty to use of an interstate facility to attempt to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). He was sentenced to a 324-month term of imprisonment. Now before the Court is Fortenberry's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 1), Motion to Amend (Doc. 11), Second Motion to Amend (Doc. 24), Motion for an Evidentiary Hearing (Doc. 29), Third Motion to Amend (Doc. 41), and Motion for Copies (Doc. 45). For the reasons set forth below, Fortenberry's motions are DENIED IN PART. The Court holds Grounds Two, Three, Four, and Six are meritless. Grounds One and Five will be addressed at the evidentiary hearing on November 22, 2016.

         Background

         On February 20, 2013, Fortenberry was charged with use of an interstate facility to attempt to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b) (Crim. Doc. 1). On March 3, 2013, a superseding indictment charged Fortenberry with use of a facility of interstate commerce to attempt to coerce an individual under the age of eighteen to engage in sexual activity, in violation of 18 U.S.C. § 2422(b); transfer of obscene matter to an individual under the age of sixteen, in violation of 18 U.S.C. § 1470; and committing the former offenses at times when he was required to register as a sex offender, in violation of 18 U.S.C. § 2260A (Crim. Doc. 2). On November 26, 2013, Fortenberry pled guilty to Count I of the indictment, pursuant to a written plea agreement (Crim. Docs. 23, 24).

         The plea agreement sets out the following factual basis for the plea. In January of 2013, an acquaintance of Fortenberry's contacted the Federal Bureau of Investigation (“FBI”) in Memphis, Tennessee, to report that Fortenberry was in contact with a 12-year-old girl (“Jane”) residing in Kansas City, Missouri, and was planning to travel to Kansas City to meet Jane in person. FBI agents located and interviewed Jane, who admitted to exchanging nude photographs and videos with Fortenberry over the Internet. After obtaining Jane's cell phone, FBI agents discovered approximately 1, 200 text messages between her and Fortenberry, a video of Fortenberry masturbating, and nude photographs of Jane. Text message conversations indicated that Fortenberry intended to travel to Kansas City to meet and have sex with Jane. In an interview, Jane stated that she and Fortenberry would communicate over the Internet and phone, Fortenberry had plans to visit Kansas City to have sex with her, and she knew that Fortenberry was a registered sex offender. Plea Agrmnt. at 4.

         The plea agreement also contains an express waiver of appellate and post-conviction rights. Id. ¶ 15. This waiver states:

The defendant expressly waives his right to appeal his sentence, directly or collaterally, on any ground except claims of (1) ineffective assistance of counsel; (2) prosecutorial misconduct; or (3) an illegal sentence. An “illegal sentence” includes a sentence imposed in excess of the statutory maximum, but does not include less serious sentencing errors, such as a misapplication of the Sentencing Guidelines, an abuse of discretion, or the imposition of an unreasonable sentence.

Id.

         The United States Probation Office then prepared a presentence investigation report (“PSR”) (Crim. Doc. 25). The PSR reported that, based on a total offense level of thirty-seven and a criminal history category of V, Fortenberry's Guidelines range was 324 to 405 months (Id. ¶ 55). The Court agreed with this calculation and subsequently sentenced Fortenberry to 324 months' imprisonment, to be followed by a life term of supervised release (Crim. Doc. 32).

         Fortenberry then filed the instant motions. Because he challenged counsel's failure to file a requested appeal, an evidentiary hearing on that matter is necessary and will be held on November 22, 2016. See Witthar v. United States, 793 F.3d 920, 923-24 (8th Cir. 2015). Counsel have outlined the issues presently before the Court (Doc. 46). A majority of Fortenberry's grounds for relief may be ruled on the basis of the existing record, and the Court will now address those issues.

         Standard

         To establish that counsel's assistance was constitutionally ineffective, a petitioner must show that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Both prongs of the Strickland test must be satisfied to obtain relief. Id. at 697.

         To establish prejudice under the second Strickland prong, the petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Where, as here, only the sentencing phase is at issue, the petitioner “must show that but for his counsel's deficiency, there is a reasonable probability he would have received a different sentence.” Porter v. McCollum, 558 U.S. 30, 41 (2009). To assess that probability, the court considers “the totality of the available mitigation evidence” and “reweig[hs] it against the evidence in aggravation.” Id. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). Counsel's failure to advance a meritless argument cannot constitute ineffective assistance of ...


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