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Burch v. United States

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

September 30, 2019

THOMAS BURCH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

         This 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.

         In his 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.

         BACKGROUND

         Criminal Proceedings

         As part 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.

         On April 6, 2012, detectives questioned Petitioner outside his residence after Petitioner was advised of and waived his Miranda[1] 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 media.[2]

         Forensic 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.).

         On 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.

         Plea Agreement and Hearing

         As indicated above, on December 23, 2014, Petitioner pled guilty to all counts in the indictment. The plea agreement contained the following provision:

         5. STATUTORY PENALTIES:

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 five years.

Id., ECF No. 32.

         At the 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.

         Petitioner 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 correct?
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 ...

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