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Fortenberry v. United States

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

November 29, 2016

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

          ORDER DENYING 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 are 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). The Court previously denied Grounds Two, Three, Four, and Six of Fortenberry's motions. The Court heard evidence on Grounds One and Five at a hearing on November 22, 2016. For the reasons set forth below, the Court finds these arguments to be without merit, and Fortenberry's motions are DENIED. Additionally, the Court DENIES Fortenberry a Certificate of Appealability.

         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) (Count I); transfer of obscene matter to an individual under the age of sixteen, in violation of 18 U.S.C. § 1470 (Count II); 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 (Count III) (Crim. Doc. 2). On November 26, 2013, Fortenberry pled guilty to Count I of the indictment, pursuant to a written plea agreement (Crim. Doc. 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. A majority of his asserted grounds for relief were ruled on the basis of the existing record (Doc. 49). Because Fortenberry challenged counsel's failure to file a requested appeal, an evidentiary hearing on that matter was held on November 22, 2016. See Witthar v. United States, 793 F.3d 920, 923-24 (8th Cir. 2015). The Court then heard evidence on the remaining two grounds for relief. Both Fortenberry and his former counsel, Ryan Reynolds (“Counsel”), testified.

         Fortenberry's testimony was not credible and inconsistent with his allegation that he unequivocally told Counsel to file a direct appeal. For example, he repeatedly stated that his direction to file an appeal was “implied.” While he first indicated that he wished to appeal at his sentencing, his testimony about later meetings with Counsel made clear that he wished to attack his sentence on the basis of ineffective assistance of counsel, and not on the basis of any claims that could be brought via direct appeal:

Assistant U.S. Attorney Moore (“AUSA”): However, you did not-the waiver that you agreed to said you could not appeal the sentence as long as it was in the statutory range of punishment?
Fortenberry: Yes ma'am. I understood that.
AUSA: You knew you could not appeal the sentence; ...

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