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Miller v. United States

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

September 18, 2019

CARLTON MILLER, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          JOHN ROSS, UNITED STATES DISTRICT JUDGE.

         This 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.[1] 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.

         I. Background

         On 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 14).

         At his plea hearing, Miller acknowledged, under oath, that the following facts were true and correct:

         Between 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.

         A 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.

         Lastly, 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).

         The 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).

         Miller 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).

         On 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.

         On 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. 45).

         II. Standard for ineffective assistance of counsel

         Miller 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.

         It is 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.

         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 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).

         A court 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).

         Where a 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. 1994).

         III. Discussion

         A. Sentencing

         1. Violation of Federal Rule of Criminal Procedure 11[2]

         Miller 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.

         2. Sentence beyond the ...


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