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United States v. Henry

United States District Court, W.D. Arkansas, Fort Smith Division

December 11, 2017

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v.
DAVID HENRY DEFENDANT/PETITIONER

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          MARK E. FORD, UNITED STATES MAGISTRATE JUDGE

         Before the Court is the Petitioner's Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed August 10, 2017. (ECF No. 31). The United States filed its response on September 12, 2017. (ECF No. 37). Petitioner filed a reply on October 2, 2017. (ECF No. 38). The matter is ready for Report and Recommendation.

         I. Background

         On December 10, 2015, a Criminal Complaint was filed against Defendant/Petitioner, David Henry (“Henry”), alleging that between October 11, 2015 and November 5, 2015, Henry used, persuaded, induced, enticed, and coerced a minor with the intent that the minor engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct and that visual depiction was produced using materials that had been mailed, shipped, and transported in interstate and foreign commerce by any means, in violation of 18 U.S.C. § 2251(a) (“production of child pornography”), and that Henry knowingly made, printed, published and caused to be made, printed, and published a notice and advertisement seeking and offering to receive, exchange, buy, produce, display, distribute, and reproduce any visual depiction, the production of which visual depiction involves the use of a minor engaging in sexually explicit conduct and which depiction is of such conduct, in violation of 18 U.S.C. § 2251(d)(1)(A) (“advertising visual child pornography”). (ECF No. 1). Henry was arrested on December 22, 2015 (ECF No. 9), and he made his initial appearance on that same date (ECF No. 4). James B. Pierce, Assistant Federal Public Defender for the Western District of Arkansas, was appointed to represent Henry. (ECF No. 6).

         On January 27, 2016, Henry was named in an Indictment charging him with four counts of production of child pornography, in violation of 18 U.S.C. §§ 2251(a) and (e) (Counts One through Four), and three counts of advertising visual child pornography, in violation of 18 U.S.C. §§ 2251(d)(1)(A), 2251(d)(2)(B), and 2251(e) (Counts Five through Seven). (ECF No. 10). Henry appeared for arraignment on February 4, 2016, and he entered a not guilty plea to the Indictment. (ECF No. 13).

         On March 10, 2016, Henry appeared with counsel before the Hon. P. K. Holmes, III, Chief U.S. District Judge, for purposes of a change of plea. (ECF No. 15). A written Plea Agreement was presented to the Court in which Henry agreed to plead guilty to Counts One and Four of the Indictment. (ECF No. 16, ¶ 1). After reviewing Henry's rights, and receiving a factual basis for the plea, Henry formally pleaded guilty to Counts One and Four of the Indictment. (ECF No. 15). The Court accepted Henry's guilty pleas and ordered a Presentence Investigation Report (“PSR”). (Id.).

         An initial PSR was prepared by the United States Probation Office on April 26, 2016. (ECF No. 18). On May 3, 2016, the Government advised that it had one objection to the initial PSR, namely, that the two separate dates of production of child pornography do not group under the Guidelines and they constitute separate units pursuant to U.S.S.G. § 3D1.4 resulting in a two-level increase of the offense level. (ECF No. 20). On May 10, 2016, counsel for Henry advised that he had no objections to the initial PSR. (ECF No. 21). The Probation Officer concurred with the Government's objection that Counts One and Four should not be grouped for Guidelines calculation purposes, also found that the offenses for which Henry was charged but not convicted were to be considered as conduct not part of relevant conduct, and the relevant paragraphs of the PSR were amended. (ECF No. 22-1).

         A final PSR was submitted to the Court on May 17, 2016. (ECF No. 22). Both of Henry's offenses resulted in a Base Offense Level of 32. (ECF No. 22, ¶¶ 33, 39a). Specific offense characteristics enhancements were added: two levels because the offense involved a minor who had attained the age of 12 years but not attained the age of 16 (ECF No. 22, ¶¶ 34, 39b); and, two levels because a computer and cellular telephone were used to commit the offense (ECF No. 22, ¶¶ 35, 39c). The resulting adjusted offense level for each count of conviction was 36. (ECF No. 22, ¶¶ 39, 39g). A two-level multiple count adjustment increased the combined adjusted offense level to 38. (ECF No. 22, ¶¶ 39j, 39k). A Chapter Four enhancement applied pursuant to U.S.S.G. § 4B1.5(b) because Henry engaged in a pattern of activity involving prohibited sexual conduct, and this increased his offense level to 43. (ECF No. 22, ¶ 40). After a three-level reduction for acceptance of responsibility, Henry's Total Offense Level was determined to be 40. (ECF No. 22, ¶¶ 41-43).

         Henry's criminal history score of zero placed him into Criminal History Category I. (ECF No. 22, ¶ 50). The statutory provisions call for a mandatory minimum of 15 years and a maximum of 30 years imprisonment on each count of conviction. (ECF No. 22, ¶ 77). Based upon a Total Offense Level of 40, and Criminal History Category I, Henry's advisory guideline range was determined to be 292 to 365 months imprisonment. (ECF No. 22, ¶ 78).

         Having received the final PSR, Pierce objected on Henry's behalf to the multiple count adjustment under U.S.S.G. § 3D1.4. (ECF No. 24). Pierce also retained the services of Emily Fallis, Ph.D., a licensed psychologist, to interview Henry for the purpose of preparing a psychological evaluation. Pierce submitted Dr. Fallis' report for the Court's consideration “when fashioning the sentence of Mr. Henry pursuant to 18 U.S.C. § 3553(a).” (ECF No. 26). Dr. Fallis' report indicates “both antisocial behavior and substance abuse; and these problem areas suggest limited impulse control, ” that Henry “appears to be a sensation seeker, ” and that “[h]e has difficulty maintaining long-term relationships.” (ECF No. 26-1, p. 6).

         Henry appeared for sentencing on August 2, 2016. (ECF No. 28). The Court made inquiry that Henry was not under the influence of alcohol or drugs and was able to comprehend the proceedings; inquiry was made that Henry was satisfied with his counsel; the PSR was reviewed in open court and amended as to appending the psychological evaluation; the PSR was adopted in open court as amended; final approval of the Plea Agreement was expressed; a victim statement was made; Henry and his counsel were afforded the opportunity to speak and make a statement; and, the Court then imposed sentence as follows: 180 months imprisonment on each count of conviction, to run concurrently; five years supervised release on each count of conviction, to run concurrently; no fine; $75.00 in restitution; and, a $200.00 in special assessments. (ECF No. 28). Judgment was entered by the Court on August 4, 2016. (ECF No. 29). Henry did not pursue a direct appeal.

         On August 10, 2017, Henry filed his pro se Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (ECF No. 31). The Petition raises two grounds for relief: (1) ineffective assistance of counsel for “failure to contest the propriety of the Government's § 2257(a) without filing a bill of particulars and/or motion to dismiss the Indictment”; and, (2) ineffective assistance counsel for failure “to argue in favor of a mitigated sentence based upon application of 18 U.S.C. § 3553(a) and case law precedent relativity (sic) of the substantive unreasonableness of sentences involving child pornography convictions.” (ECF No. 31, p. 4). For supporting facts, Henry's Petition states “See Legal Memorandum In Support of § 2255 Petition” (Id.), but Henry filed no such legal memorandum. The United States' response was filed on September 12, 2017. (ECF No. 37). Henry filed a reply on October 2, 2017. (ECF No. 38).

         II. Discussion

         “A prisoner in custody under sentence . . . claiming the right to be released upon the ground that 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). “If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). A thorough review of Henry's Petition and the files and records of this case conclusively shows that Henry is entitled to no relief, and it is recommended that Henry's Petition be denied and dismissed with prejudice without an evidentiary hearing.

         A. Legal Standard for Ineffective Assistance of Counsel Claims

          To prove a claim of ineffective assistance of counsel, a criminal defendant must demonstrate both that counsel's performance was deficient, and that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish the deficient performance prong of the Strickland test, one must show that counsel's representation fell below the “range of competence demanded of attorneys in criminal cases.” Id. at 688. Review of counsel's performance is highly deferential, and there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. Moreover, “[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006) (quoting Strickland, 466 U.S. at 690). Courts also “do not use hindsight to question counsel's performance, ” but instead must analyze it according to counsel's situation at the time of the allegedly incompetent act or omission. Kenley v. Armontrout, 937 F.2d 1298, 1303 (8th Cir. 1991). If one fails to establish deficient performance by counsel, the court need proceed no further in its analysis of an ineffective assistance of counsel claim. United States v. Walker, 324 F.3d 1032, 1040 (8th Cir. 2003).

         To establish the prejudice prong of the Strickland test, one must demonstrate “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The United States Supreme Court has clarified that the proper prejudice analysis is whether “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (quoting Strickland, 466 U.S. at 687).

         B. Failure to Move for Bill of Particulars or Move to Dismiss Indictment (Ground One)

         1. Effect of Henry's Guilty Pleas

         Henry pleaded guilty to the two offenses of conviction. As a result, the Government contends Henry's first ground for relief - ineffective assistance of counsel for failing to file a bill of particulars or move to dismiss the Indictment - has been waived. (ECF No. 37, pp. 7-10). The undersigned agrees.

         When a guilty plea is entered, the focus of a subsequent collateral attack must remain limited to the nature of counsel's advice and the voluntariness of the guilty plea. Bass v. United States, 739 F.2d 405, 406 (8th Cir. 1984) (citing Tollett v. Henderson, 411 U.S. 258, 266 (1973)). As the Court in Tollett eloquently observed:

“. . . a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advise he received from counsel was not within the standards set forth in McMann[1].
A guilty plea, voluntarily and intelligently entered, may not be vacated because the defendant was not advised of every conceivable constitutional plea in abatement he might have to the charge . . . And just as it is not sufficient for the criminal defendant seeking to set aside such a plea to show that his counsel in retrospect may not have correctly appraised the constitutional significance of certain historical facts, (internal citation omitted) it is likewise not sufficient that he show that if counsel had pursued a certain factual ...

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