United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
ROSS, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Movant Carlton Miller's
motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody, as amended.
(Doc. Nos. 1, 26). For the following reasons, Miller's
motion is denied. Also pending is Miller's request for
permission to submit an addendum to his § 2255 motion
(Doc. No. 44), which is granted, and motion for default
judgment (Doc. No. 45), which is denied.
January 8, 2015, Miller pled guilty to a two-count
Superseding Information pursuant to a written plea agreement
and Federal Rule of Criminal Procedure 11(c)(1)(A). Count 1
charged Production of Child Pornography/Sexual Exploitation
of a Child, in violation of 18 U.S.C. § 2251(a), 18
U.S.C. § 2251(e); Count 2 charged Receipt of Child
Pornography, in violation of 18 U.S.C. § 2252A(a)(2), 18
U.S.C. § 2252A(b)(1). The parties agreed to recommend to
the Court that Miller be sentenced to a term of imprisonment
of 27 years. (Plea Agreement, 4:14-CR-00353, Doc. No. 31, at
plea hearing, Miller acknowledged, under oath, that the
following facts were true and correct:
April 20, 2014 and May 6, 2014, an online undercover
operation conducted by the St. Louis City Police Department
on BitTorrent, a peer-to-peer network, located an IP address
offering to share video files which contained data values
that matched known child pornography. Several video files
that contained child pornography were downloaded from this IP
address. An investigative subpoena revealed that the IP
address in question was assigned to Miller. Pursuant to a
valid state search warrant for Miller's apartment,
Detectives seized Miller's laptop, external hard drive,
cell phones, DVDs, CDs, and a silicone sexual device shaped
like a female child's buttocks and vagina. A preliminary
examination of Miller's external hard drive located
photographs that had been taken with Miller's Samsung
cell phone, including a series of four images depicting a
prepubescent female's exposed genitals. Detectives later
identified the female in the photograph as H.K., the
seven-year old daughter of Miller's girlfriend, L.K.
forensic examination of Miller's laptop computer hard
drive revealed evidence of peer-to-peer software including
torrent files. Ten images of child pornography were found in
unallocated space on the laptop's hard drive. Detectives
were also able to determine that files being downloaded
through uTorrent (peer-to-peer software) were automatically
defaulted to being saved on the "G drive, " a USB
external hard drive connected to the laptop at the time of
the search warrant. Miller's external hard drive
contained 69 videos and 219 images of child pornography,
including the four images depicting H.K. Also on the external
hard drive, Detectives located nine of the twelve videos of
child pornography that Sgt. Muffler had been able to download
from Miller's IP address between April 20, 2014 and May
6, 2014. Miller received these videos through the Internet
and saved those images to his external hard drive. These
videos depicted prepubescent minor children engaging in
sexually explicit conduct, sadistic or masochistic conduct,
or other depictions of violence. Some of the children in
these videos are under the age of the twelve.
a forensic examination of Miller's Samsung cell phone
revealed that the full photographs of H.K. had apparently
been deleted from the device; however, several cache files of
the victim still resided within the phone. These files
matched the photos of H.K. from the external hard drive.
Also, on Miller's Samsung cell phone were photographs
taken through a window of girls between the ages of eight and
fifteen years old from Miller's neighborhood. One series
of photographs is of a girl swimming in a backyard
above-ground pool; the other series is of preteen girls
tumbling and playing in the area in front of Miller's
apartment building. (Plea Agreement at 3-9; Plea Transcript
(Doc. No. 11-1) at 22).
transcript of the plea hearing reflects that the Court
closely examined Miller regarding the voluntariness of his
plea, and reflects a plea that was entered "freely,
voluntarily, and intelligently, with a full understanding of
the charges and the consequences of the pleas, with an
understanding of his rights attending a jury trial, [and] the
effect of the pleas of guilty on those rights." (Plea
Tr. at 4-6, 32).
waived his right to appeal his conviction and sentence in the
event the Court sentenced him within or below the sentencing
guideline range (Plea Tr. at 26-27) and further waived his
right to contest his sentence or conviction in a
post-conviction proceeding, except for claims of
prosecutorial misconduct or ineffective assistance of
counsel. (Plea Agreement at 27).
April 9, 2015, the Court sentenced Miller to concurrent terms
of imprisonment of 360 months for the crimes of Production of
Child Pornography and Sexual Exploitation of a Child; and
Receipt of Child Pornography, followed by a life term of
supervised release. No direct appeal was filed.
April 8, 2016, Miller filed a Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence. (Doc. No. 1).
The Government filed a response on July 1, 2016. (Doc. No.
6); Miller filed a reply on August 29, 2016 (Doc. No. 16). On
December 23, 2016, Miller filed an amended motion under 28
U.S.C. § 2255. (Doc. No. 26). The Court granted Miller
leave to file this motion on December 29, 2016. (Doc. No.
27). On January 10, 2017, Miller filed an amended
supplementary brief and appendix in support of his amended
§ 2255 motion. (Doc. No. 28). The Government filed a
response to the amended motion on July 14, 2017 (Doc. No.
36); Miller filed a reply on October 30, 2017 (Doc. No. 41).
On June 3, 2019, Miller sought leave to submit an addendum in
support of his amended § 2255 motion (Doc. No. 44) and
on August 8, 2019, moved for default judgment against the
Government for failing to respond to said addendum (Doc. No.
Standard for ineffective assistance of counsel
raises several claims of ineffective assistance of counsel in
his amended motion, which he has grouped into four
categories: (1) sentencing; (2) PSR/sentencing guidelines;
(3) evidentiary issues; and (4) advocacy.
well-established that a petitioner's ineffective
assistance of counsel claim is properly raised under 28
U.S.C. § 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 pled 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); Matthews v. United States, 114 F.3d 112,
114 (8th Cir. 1997).
need not even determine whether a movant meets the
"performance" prong of the Strickland test
because both the United States Supreme Court and the Eighth
Circuit Court of Appeals have noted that '"[i]f it
is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect
will often be so, that course should be
followed.'" Young v. Bowersox, 161 F.3d
1159, 1160 (8th Cir. 1998); See also Kingsberry v. United
States, 202 F.3d 1030, 1032 (8th Cir.) (if the
petitioner makes an insufficient showing on one component,
the court need not address both components), cert,
denied, 531 U.S. 829 (2000).
defendant raises multiple claims of ineffective assistance,
each claim of ineffective assistance must be examined
independently rather than collectively. Hall v.
Luebbers, 296 F .3d 385, 692-693 (8th Cir. 2002);
Griffin v. Delo, 33 F.3d 895, 903-904 (8th Cir.
Violation of Federal Rule of Criminal Procedure
first alleges his counsel was ineffective for failing to
object when the Court announced it would not adhere to the
plea agreement and never gave him a chance to withdraw his
plea pursuant to Rule 11(c)(5) (describing procedure to be
followed when court rejects a plea agreement under Rule
11(c)(1)(C) for a specific sentence or sentencing range).
This claim fails on the merits as the Court was not required
to accept any sentencing recommendation agreed to by die
parties to die plea agreement, i.e., Miller and die
Government. The plea agreement in this case was made pursuant
to Rule 11(c)(1)(A) and thus not binding on die Court. Miller
acknowledged in die plea agreement that "die District
Court is neither a party to nor bound by die recommendations
agreed to in this document, " and reiterated his
understanding at die plea hearing:
Q (By the Court): The parties are further agreeing to the
guideline calculations and the guideline analysis mat's
set out in the plea agreement; but separate and apart from
mat, me parties are indicating that they are going to
recommend to the Court at the time of sentencing that you be
sentenced to a term of imprisonment of 27 years. But do you
understand mat the Court is not bound by the agreement.
That's something I'll ultimately determine at the
time of sentencing. Do you understand mat; is that correct:
A. Yes, your Honor, I do.
Q. Any questions about that aspect of the agreement.
That's very important that you understand that ultimately
the Court will make those determinations at the time of
sentencing, and you and your attorney, and the Assistant
United States Attorney, will come in and recommend the
sentence of 27 years; but again, it will ultimately be up to
the Court to make the final determination. Do you understand
that; is mat correct?
A. Yes, your Honor.
(Plea Tr. at 15-16). Miller had no right to withdraw his
plea. Therefore, his counsel's performance can hardly be
deemed to fall below me objective standard of reasonableness
for failing to raise a meritless challenge. See Dyer v.
United States, 23 F.3d 1424, 1426 (8th Cir. 1994);
Rodriguez v. United States, 17 F.3d 225, 226 (8th
Cir. 1994); Thomas v. United States, 951 F.2d 902
(8th Cir. 1991). This claim is denied.
Sentence beyond the ...