Submitted: November 15, 2016
from United States District Court for the District of North
Dakota - Bismarck
BENTON and SHEPHERD, Circuit Judges, and STRAND, District
BENTON, CIRCUIT JUDGE.
convicted Rodney A. Goodwin of attempted transportation of a
minor with intent to engage in sexual activity under the Mann
Act, 18 U.S.C. § 2423. After this court affirmed,
Goodwin moved under 28 U.S.C. § 2255 to vacate his
conviction. The district court denied the motion. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
2010, 45-year-old Goodwin began an online relationship with
16-year-old J.B. through a social-networking site. Many of
their messages were sexual. After J.B. turned 17, they began
planning for J.B to travel from her home in North Dakota to
visit Goodwin in Texas, where they planned to have sex. On
October 17, 2010, J.B. began to travel to Texas, but
eventually returned home before leaving North Dakota. Any
sexual act would have occurred in Texas.
single-count indictment charged Goodwin with attempted
violation of the Mann Act: knowingly transporting anyone
under 18 in interstate commerce "with intent that the
individual engage in . . . any sexual activity for which any
person can be charged with a criminal offense, shall be fined
under this title and imprisoned not less than 10 years or for
life." 18 U.S.C. § 2423(a). The
"criminal offense" was North Dakota statute §
12.1-20-05(2): attempting to "engage in a sexual
act" with a minor. A "minor" in North Dakota
is a person under 18. N.D. Cent. Code §
14-10-01. North Dakota claims jurisdiction under
§ 29-03-01.1(3): "Any person who commits one or
more of the following acts is liable to prosecution under the
laws of this state . . . Soliciting, while outside this
state, sexual contact with a person believed to be a minor
who at the time of the solicitation is located in this
convicted Goodwin. The district court sentenced him to 121
months' imprisonment and 60 months' supervised
release. Goodwin appealed, alleging insufficient evidence.
This court affirmed. United States v. Goodwin, 719
F.3d 857, 865 (8th Cir. 2013).
moved to vacate his conviction under 28 U.S.C. § 2255,
asserting a violation of the First Amendment and ineffective
assistance of counsel. The district court denied
Goodwin's motion, but certified the issues for appeal.
federal prisoner may seek relief if his "sentence was
imposed in violation of the Constitution or laws of the
United States." 28 U.S.C. §
2255(a). A sentence is "imposed in violation of
the Constitution" if the statute of conviction is
unconstitutional, either facially or as applied. See
Turchick v. United States, 561 F.2d 719, 721 (8th Cir.
Government did not assert procedural default or another
affirmative defense, so those defenses normally are waived.
See Trest v. Cain, 522 U.S. 87, 89 (1997) (citation
omitted) ("[P]rocedural default is normally a defense
that the State is obligated to raise and preserve if it is
not to lose the right to assert the defense
thereafter."); West v. United States, 994 F.2d
510, 512 (8th Cir. 1993) ("Because the government never
raised procedural default, however, and the district court
considered the merits of the claims, we will do
likewise."). This ...