United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
E. FORD, UNITED STATES MAGISTRATE JUDGE
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
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).
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).
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”).
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).
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).
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).
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).
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.
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).
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.
Legal Standard for Ineffective Assistance of Counsel
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).
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).
Failure to Move for Bill of Particulars or Move to Dismiss
Indictment (Ground One)
Effect of Henry's Guilty Pleas
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
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
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 ...