United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG, UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner Thomas Burch's
motion filed under 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence. On December 23, 2014,
Petitioner entered a plea of guilty to three counts of
possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). The Court accepted Petitioner's
plea, and on May 5, 2015, sentenced Petitioner to 66 months
in prison on each count, to run concurrently.
pro se motion under § 2255, Petitioner claims that trial
counsel was ineffective for: (1) failing to address
Petitioner's post-traumatic stress disorder
(“PTSD”) as a mitigating factor during
sentencing; (2) failing to secure an expert witness on PTSD
and how it could have related to Petitioner's actions;
(3) promising Petitioner that he would receive no more than
“a year and a day in a camp” if he pled guilty;
(4) failing to challenge the indictment on
statute-of-limitations grounds; (5) attempting to downplay
the seriousness of the offense; (6) persuading Petitioner to
plead guilty instead of proceeding to trial; (7) failing to
mention Petitioner's wife's and mother-in-law's
physical and mental health during his sentencing; (8) failing
to explain to Petitioner that “knowledge of
distribution is required under new guidelines”; and (9)
failing to investigate a potential Fourth Amendment violation
regarding Petitioner's consent to search his residence
and computers. As the record before the Court conclusively
demonstrates that Petitioner is not entitled to relief, the
Court will deny Petitioner's motion without a hearing.
of the guilty plea agreement signed by both parties,
Petitioner stipulated to the following facts. Between
February 9, 2012 and March 29, 2012, Sergeant Bob Muffler of
the St. Louis City Police Department was conducting an
authorized online undercover operation of individuals
offering or possessing images of child pornography on a
peer-to-peer network. During his investigation, Sergeant
Muffler located an IP address offering to share videos which
contained “SHA values” that matched known child
pornography. This IP address was recorded and ultimately led
detectives to a computer located in a desk area of a St.
Louis office of Wells Fargo Mortgage. The desk area belonged
to Petitioner, who was an employee of the company.
April 6, 2012, detectives questioned Petitioner outside his
residence after Petitioner was advised of and waived his
Miranda rights. One of the detectives then asked
Petitioner for consent to seize and search two hard drives in
his residence that Petitioner admitted contained mass
internet downloads of pornography, including possibly child
pornography, downloaded via the router at his work.
Petitioner explained to the detective that he downloaded
child pornography because he was curious about the contents.
In response to the detective's request for consent to the
search, Petitioner requested an attorney. The detective thus
stopped questioning Petitioner and relayed this information
to a sergeant, who then approached Petitioner and advised
Petitioner that he (the sergeant) would be requesting a judge
to review a search warrant for the residence. Petitioner
asked if there was an alternative to a search warrant, and
the sergeant informed him of the procedure: either give the
officers consent or they would attempt to get a search
warrant. Petitioner then asked to speak to his wife
privately. Following the conversation with his wife,
Petitioner gave verbal consent to the sergeant to conduct the
search. The sergeant then asked Petitioner if Petitioner was
waiving his rights to an attorney and wanted to continue
cooperating, to which Petitioner responded,
“yes.” Petitioner then signed a written
Miranda waiver and a consent form giving officers
consent to search the residence for computer media. He also
signed a consent to search media form which gave officers the
authority to search the contents of digital
analysis of the media seized revealed that the media
contained videos and images of pre-pubescent minor children
engaged in sexually explicit conduct, and some portrayed
sadistic or masochistic conduct or other depictions of
violence. See generally, United States v.
Burch, No. 4:14-cr-00263-AGF, ECF No. 32 (E.D. Mo.).
August 27, 2014, Petitioner was indicted on three counts of
Possession of Child Pornography, in violation of 18 U.S.C.
§ 2254A(a)(5)(B). On October 14, 2014, Petitioner filed
his waiver of pretrial motions. Id., ECF no. 21. On
October 22, 2014, the Court conducted a waiver hearing with
Petitioner and his counsel. The Court asked Petitioner about
his understanding of his right to file pretrial motions and
to hold a hearing on pretrial motions. Id., ECF No.
24. Petitioner acknowledged that he understood his rights and
that it was his intention to waive his right to file pretrial
motions and to hold a hearing on pretrial motions.
Id. The Court accepted his waiver and knowingly and
voluntarily made. Id.
Agreement and Hearing
indicated above, on December 23, 2014, Petitioner pled guilty
to all counts in the indictment. The plea agreement contained
the following provision:
As to Counts One, Two, and Three, the defendant fully
understands that the maximum possible penalty provided by law
for the crime of Possession of Child Pornography to which the
defendant is pleading guilty is imprisonment of not more than
ten years, a fine of not more than $250, 000, or both such
imprisonment and fine. The Court may also impose a period of
supervised release of not more than life and not less than
Id., ECF No. 32.
change-of-plea hearing, the Court discussed with Petitioner
the psychiatric treatment that Petitioner was receiving for
his anxiety, depression, and PTSD, but Petitioner indicated
that there was nothing about his physical or mental
conditions, or his medications, that would make it difficult
for him to think clearly or understand what was happening.
Id., ECF No. 58 at 5-7. The Court asked whether
Petitioner had enough time to review the plea agreement with
his attorney, to which Petitioner answered in the
affirmative. Id. at 8. Petitioner represented to the
Court that he had read, discussed with his attorney, and
understood the terms of the indictment and plea agreement;
that he understood the rights he was giving up by pleading
guilty, including all of his rights associated with his right
to a trial; and that he was guilty of the crime to which he
was pleading guilty. He further confirmed that he was
satisfied with the representation he received from his
attorney, and that there was nothing he wanted his attorney
to do for him that the attorney had not done in representing
Petitioner. Id. at 8-14.
also represented that he understood that he would normally
have the right to contest both his conviction and his
sentence in an appeal or post-conviction proceeding, but that
in the plea agreement, he was waiving his right to appeal all
non-jurisdictional, non-sentencing issues, including any
issues related to pretrial motions, discovery and even this
very guilty plea. With respect to pretrial motions in
particular, Petitioner represented as follows:
THE COURT: Now, let's step back and make sure that you
understand what's involved here, Now, based upon my
review of the plea agreement here, sir, it appears that quite
a few items in which you claim an interest were seized, both
at your place of employment and in your home; is that
THE DEFENDANT: Yes, ma'am.
THE COURT: And it also appears that you made certain
statements to law enforcement officers?
THE DEFENDANT: Yes, ma'am.
THE COURT: And you understand, sir, that in connection with
these court proceedings if you believe that any of those
items were seized in violation of your rights, or that
statements made by you were not voluntary or were made in
violation of your rights, you would have the right to file ...