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Talbert v. United States

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

November 29, 2017

STEPHEN TALBERT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE

         This 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 [1] and Motion to Correct Record [5].

         I. PROCEDURAL HISTORY

         On June 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.

         II. STANDARD

         A 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)).

         Claims 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.

         Both 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.

         The 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).

         The 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).

         III. DISCUSSION

         Petitioner 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.

         A. Sufficiency of Evidence

         In 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 ...


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