United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Stephen Talbert's Motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody  and Motion to
Correct Record .
18, 2014, Petitioner Stephen Talbert
(“Petitioner”) was indicted for two counts of
Production of Child Pornography in violation of 18 U.S.C.
§ 2251(a). Petitioner pleaded guilty to the charges on
December 12, 2014 and was sentenced to 45-years imprisonment.
Petitioner appealed, and the Eighth Circuit affirmed this
Court's sentence on July 1, 2016. Petitioner did not file
a petition for a writ of certiorari. On July 6, 2017,
Petitioner filed this motion under 28 U.S.C. § 2255,
arguing his sentence should be vacated because his counsel
was ineffective. On July 28, 2017, Petitioner filed a Motion
to Correct Record, arguing his motion should be deemed as
filed on June 28, 2017 because that was the date it was
delivered to the prison authorities for mailing.
federal prisoner who seeks relief under 28 U.S.C. § 2255
on grounds “the sentence was imposed in violation of
the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack, may move
the court which imposed the sentence to vacate, set aside or
correct the sentence.” 28 U.S.C. § 2255(a). In
order to obtain relief under § 2255, the petitioner must
establish a constitutional or federal statutory violation
constituting “a fundamental defect which inherently
results in a complete miscarriage of justice.”
United States v. Gomez, 326 F.3d 971, 974 (8th Cir.
2003) (quoting United States v. Boone, 869 F.2d
1089, 1091 n.4 (8th Cir. 1989)).
brought under § 2255 may be limited by procedural
default. Generally, a petitioner “cannot raise a
non-constitutional or non-jurisdictional issue in a §
2255 motion if the issue could have been raised on direct
appeal but was not.” Anderson v. United
States, 25 F.3d 704, 706 (8th Cir. 1994). However, it is
well-established that a petitioner's ineffective
assistance of counsel claim is properly raised under §
2255, rather than on direct appeal. United States v.
Davis, 452 F.3d 991, 994 (8th Cir. 2006); United
States v. Cordy, 560 F.3d 808, 817 (8th Cir. 2009). The
burden of demonstrating ineffective assistance of counsel is
on a defendant. United States v. Cronic, 466 U.S.
648, 658 (1984); United States v. White, 341 F.3d
673, 678 (8th Cir. 2003). To prevail on an ineffective
assistance of counsel claim, a convicted defendant must first
show counsel's performance “fell below an objective
standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). The defendant
must also establish prejudice by showing “there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694.
parts of the Strickland test must be met in order
for an ineffective assistance of counsel claim to succeed.
Anderson v. United States, 393 F.3d 749, 753 (8th
Cir.), cert. denied, 546 U.S. 882 (2005). The first
part of the test requires a “showing that counsel made
errors so serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment.” Id. Review of counsel's
performance by the court is “highly deferential,
” and the Court presumes “counsel's conduct
falls within the wide range of reasonable professional
assistance.” Id. The court does not
“second-guess” trial strategy or rely on the
benefit of hindsight, id., and the attorney's
conduct must fall below an objective standard of
reasonableness to be found ineffective. United States v.
Ledezma-Rodriguez, 423 F.3d 830, 836 (2005). If the
underlying claim (i.e., the alleged deficient performance)
would have been rejected, counsel's performance is not
deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th
Cir. 1996). Courts seek to “eliminate the distorting
effects of hindsight” by examining counsel's
performance from counsel's perspective at the time of the
alleged error. Id.
second part of the Strickland test requires that the
movant show that he was prejudiced by counsel's error and
“that ‘there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different.'”
Anderson, 393 F.3d at 753-54 (quoting
Strickland, 466 U.S. at 694). “A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466
U.S. at 694. When determining if prejudice exists, the court
“must consider the totality of the evidence before the
judge or jury.” Id. at 695; Williams v.
U.S., 452 F.3d 1009, 1012-13 (8th Cir. 2006).
first prong of the Strickland test, that of attorney
competence, is applied in the same manner to guilty pleas as
it is to trial convictions. The prejudice prong, however, is
different in the context of guilty pleas. Instead of merely
showing that the result would be different, the defendant who
has pleaded guilty must establish that “there is a
reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S.
52, 59 (1985).
asserts three grounds for ineffective assistance of counsel:
(1) failure to adequately investigate the sufficiency of
evidence; (2) failure to investigate whether officers
violated his Fourth Amendment rights by allegedly entering
his home; and (3) failure to investigate whether
Petitioner's “consents and confession were invalid
for Fourth Amendment purposes.” The Court will address
each ground of Petitioner's Motion as follows.
Sufficiency of Evidence
order to be found guilty of Production of Child Pornography,
the Court must find the defendant acted with “the
purpose of producing any visual depiction of such conduct or
for the purpose of transmitting a live visual depiction of
such conduct.” 28 U.S.C. § 2251(a). Petitioner
argues counsel failed to “surmise the government could,
without examination or argument, prove that Tablert's
actions were undertaken with the goal of producing
images.” Rather, he alleges, counsel could have argued
Petitioner took the pictures with the minor child without
“the purpose of producing the images depicted.”
Petitioner claims he would not have pleaded guilty had
counsel “ensure[d] the government could prove each
element of the charging statute before advising [him] to
plead guilty.” In his reply, Petitioner argues there is
“no proof Talbert committed the abuse for the purpose
of producing an image of his conduct.” He states ...