United States District Court, W.D. Arkansas, Fayetteville Division
MAGISTRATE JUDGE REPORT AND RECOMMENDATION
HONORABLE JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE
the court is the Petitioner's Motion to Vacate, Set
Aside, or Correct a Sentence Pursuant to 28 U.S.C. Section
2255 (Doc. 84 and 89) filed May 26, 2016 and June 22, 2016.
The United States of America filed a Response (Doc. 94) on
August 26, 2016. The Petitioner filed a Reply (Doc. 106) on
October 31, 2016. The matter was reassigned to the
undersigned on April 10, 2018 and the matter is ready for
Report and Recommendation.
March 8, 2013, a criminal complaint was filed against Santosh
Ram alleging he violated 18 U.S.C. § 2422(b), namely
Online Enticement of a Minor, on or about March 6, 2013, in
the Western District of Arkansas. On April 24, 2013, Ram was
named in a one-count Indictment filed in the Western District
of Arkansas charging that on or about September 18, 2011, and
continuing through and including October 16, 2011, Ram, using
a computer connected to the internet, knowingly attempted to
persuade, induce, entice, and coerce an individual whom he
believed was 11 years of age, to engage in any sexual
activity for which any person can be charged with a criminal
offense, namely Arkansas Code Annotated Section 5-14-103
(Statutory Rape), in violation of Title 18, United States
Code, Section 2422(b). (Doc. 12). Said charge carries a
statutory range of a minimum of ten (10) years and a maximum
April 25, 2013, Kim Weber, petitioner's retained
attorney, entered her appearance (Doc. 9) and on April 30,
2013, Ram appeared with counsel, Kim Weber, for arraignment
and entered a not guilty plea. (Doc. 17).
August 28, 2013, Ram, represented by Weber, appeared before
the Honorable Jimm Larry Hendren. At said hearing, the
parties informed the Court that they had reached a plea
agreement whereby Ram would plead guilty to an information
and the Government would dismiss the indictment at
sentencing. Accordingly, Ram waived his right to prosecution
by indictment and consented to prosecution by information.
(Doc. 28). An Information was filed that same day charging
the defendant with Receipt of Child Pornography in violation
of 18 U.S.C. §§ 2252(a)(2) and (b)(1). (Doc. 29).
The statutory penalty range of said offense is five (5) years
to twenty (20) years. Thereafter, Ram appeared with counsel,
Kim Weber, before the Honorable Jimm Larry Hendren for his
initial appearance, arraignment, and a change of plea
hearing. A written plea agreement was presented to the Court
that set forth that Ram would agree to plead guilty to the
Information charging him with knowing receipt of child
pornography in violation of 18 U.S.C. § 2252(a)(2).
December 18, 2013, the Probation Office filed Ram's final
Presentence Investigation Report (“PSR”). (Doc.
38). The PSR assessed a base offense level of 22 pursuant to
U.S.S.G. § 2G2.2(a)(2). (PSR, ¶ 44). Ram's base
offense level was decreased by two pursuant to §
2G2.2(b)(1) but increased by two because a computer was used
which resulted in an adjusted offense level of 22. (PSR,
¶¶ 45, 46, and 50). After receiving three-levels
off for acceptance of responsibility, Ram's total offense
level was set at 19. (PSR, ¶¶ 52 - 54). However,
Cross References to the Production of Child Pornography
guideline were applied which increased Ram's base offense
level to 32 pursuant to U.S.S.G. § 2G2.1(a). (PSR,
¶ 56). Ram's offense level was then increased by
4-levels due to specific offense characteristics. (PSR,
¶¶ 57 and 58). After receiving 3-levels off for
acceptance of responsibility, Ram's greater total offense
level was set at 33. (PSR, ¶¶ 64 - 67). Ram's
criminal history category was a I. (PSR, ¶ 70) and based
on a total offense level of 33 and a criminal history
category of I, Ram's guideline imprisonment range was 135
to 168 months. (PSR, ¶ 70, 93). The United States made
one objection to the PSR while Ram made eight. (See Addendum
February 18, 2014, Ram appeared with counsel, Kim Weber, for
sentencing. (Doc. 44). The Court sentenced Ram to 135 months
imprisonment, 5 years supervised release, a $10, 000 fine,
and $100 special assessment. (Doc. 47).
filed a notice of appeal on March 4, 2014. (Doc. 49). On
appeal, Ram's counsel filed an Anders brief in which she
challenged his sentence as being substantively unreasonable.
United States v. Ram, 594 Fed.Appx. 317 (8th
Cir.2015). Additionally, in pro se submissions, Ram
challenged his Guidelines computations and argued his
sentence was unreasonable because the Court impermissibly
considered his race when fashioning his sentence, among other
arguments which the Eighth Circuit rejected. Id. at
317-18. The Eighth Circuit affirmed this Court's
judgment. Id. at 318. Ram filed a petition for writ
of certiorari on July 29, 2015 (Doc. 73) which was denied on
October 7, 2015 (Doc. 75).
26, 2016, Ram filed an initial motion pursuant to 28 U.S.C.
§ 2255. (Doc. 84). However, the Court found the motion
to be unnecessarily lengthy and directed Ram to file an
amended motion consisting of no more than 25 pages. (Doc.
86). On June 22, 2016, Ram filed his Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (Doc. 89) and brief in support
(Doc. 90) arguing (A) Actual Innocence, (B) Insufficient
Evidence, (C) Ineffective Assistance of Counsel, and (D)
Misapplication of Sentencing Guidelines.
Petitioner has raised a total of twenty one (21) claims in
his 2255 motion. Many of the claims have numerous sub-claims
and the court will attempt to deal with the Petitioner's
claims in the sequence he has placed them.
petitioner first contends that he is actually innocent of the
“charge I pleaded guilty” to. (Doc. 90, p. 2).
The Petitioner also contends that his plea was
“involuntary” but asserts no factual basis for
his involuntary plea and only contends that he did not
“remember” creating a Facebook profile with the
name of “Peter Na”. (Id.). The
voluntariness of the Petitioner's plea will be dealt with
in a subsequent section.
Petitioner previously argued his claim of actual innocence
before the Eighth Circuit Court of Appeals which held that
“his claim of innocence, because it is a
non-jurisdictional argument, is foreclosed by his guilty
plea.” See United States v. Ram, 594 Fed.Appx.
317 (8th Cir. 2015). The Eighth Circuit Court of Appeals has
specifically held that those claims previously litigated and
decided adversely to a criminal defendant may not be
re-litigated in a § 2255 proceeding. Woods v. United
States, 567 F.2d 861, 863 (8th Cir. 1978) (citing
Scott v. United States, 545 F.2d 1116, 1117 (8th
Petitioner contends that the evidence was insufficient to
“support that any crime had happened.” (Doc. 90,
Plea Agreement sets forth the factual basis that child
pornography images were found on the Petitioner's
computer (Doc. 31, ¶3).
change of plea hearing, Ram admitted that the following facts
supported his guilty plea:
THE COURT: All right. I'm going to ask Mr. Roberts now to
relate on the record the basis for this charge against you as
set out in the Information. Now, the reason I do that, Mr.
Ram, and I want you to listen carefully, because I have to be
sure that what he says actually supports this charge against
you. Even if you plead guilty to it, I can't accept your
plea unless it's really a crime, unless there's
really a basis to support it. So listen carefully, and
I'll ask some questions of you when he finishes. Mr.
MR. ROBERTS: Thank you, Your Honor. On October 14 th 2011, a
concerned relative living in Mt. Pleasant, Iowa reported to a
local law enforcement that she had discovered that her
underage niece had been having sexually explicit
conversations online with someone she suspected to be an
adult male. At the time of the conversation, the suspect was
using the Facebook account name of Peter Na. A review of the
online conversation revealed that the suspect repeated
requested that the minor turn on her webcam so he could see
her nude and see her engage in sexual acts, including
In November of 2011, law enforcement obtained the
suspect's profile information from Facebook, which
revealed it to belong to the defendant, Santosh Ram, Santosh
Ram of Rogers, which is in the Western District of Arkansas.
Consequently, a federal search warrant was executed at the
home of Ram.
During the execution of the warrant, officers confiscated
numerous computers and digital storage devices. A forensic
examination of at least one of the computers revealed that
the suspect -- revealed the suspect profile of Peter Na.
During the post-Miranda interview, the defendant admitted
that he was in fact the one having conversations with minor
females via computer connected to the internet. He
specifically told law enforcement that he created Peter Na
account in an effort to chat with minors via webcam, and that
he in fact did receive several images of their genitalia via
webcam over the internet. He further admitted that he did
save some of the images to his computer. A forensic
examination of his computer revealed that there were several
instances in which the defendant received images of minors
engaged in sexually explicit conduct. Specifically, on more
than one occasion, he received closeup images over the
internet of the vaginas of females. Or minor females. Thank
you, Your Honor.
THE COURT: Ms. Weber, do you believe that if the information
just related by Mr. Roberts were presented to a jury and the
jury believed it that it could be sufficient to support a
finding of guilt beyond a reasonable doubt on the charge set
out in the Information?
MS. WEBER: Yes, Your Honor.
THE COURT: Now, Mr. Ram, as Mr. Roberts spoke, I was looking
at the Plea Agreement, and I believe he related what's in
Paragraph 3 of the agreement as to what happened here. You
told me earlier that was all true. Now that you've heard
it, do you still agree that's true?
THE DEFENDANT: Yes, sir.
THE COURT: That's what happened?
THE DEFENDANT: Yes, sir. (Doc. 70, pp. 35-37)
Petitioner's claim that there was insufficient evidence
to support the plea is clearly without merit.
Ineffective Assistance of Counsel:
Sixth Amendment of the Constitution of the United States
affords a criminal defendant with the right to assistance of
counsel. U.S. Const. amend. VI. The Supreme Court
“has recognized that ‘the right to counsel is the
right to effective assistance of counsel.' “
Strickland v. Washington, 466 U.S. 668, 698, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984) (citing McMann v.
Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 25
L.Ed.2d 763 (1970)).
defendant “faces a heavy burden” to establish
ineffective assistance of counsel pursuant to § 2255.
DeRoo v. United States, 223 F.3d 919, 925 (8th Cir.
2000); 2254. Cox v. Wyrick, 642 F.2d 222, 226
(C.A.Mo., 1981) To establish a claim of ineffective
assistance of counsel, the Defendant must satisfy the
two-part test set forth in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
under the “deficient performance” component, he
must show that his counsel “made errors so serious that
counsel was not functioning as the 'counsel'
guaranteed [him] by the Sixth Amendment.”
Strickland, 466 U.S. at 687. That showing can be
made by demonstrating that counsel's performance
“fell below an objective standard of
reasonableness.” Wiggins v. Smith, 539 U.S.
510, 522, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)(internal
under the “prejudice” component, he 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. see also, i.e. United States v
Ledezma-Rodriguez, 423 F.3d 830, 836 (8th Cir.
2005)(post-conviction relief will not be granted on a claim
of ineffective assistance of trial counsel unless the
petitioner can show not only that counsel's performance
was deficient but also that such deficient performance
prejudiced his defense).
satisfy this “prejudice” prong, Defendant must
show “that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different . . . a reasonable
probability [meaning] a probability sufficient to undermine
confidence in the outcome.” U.S. v.
Rice, 449 F.3d 887 at 897 (internal quotations
omitted). Thus, it is not sufficient for a defendant to show
that the error had some “conceivable effect” on
the result of the proceeding because not every error that
influences a proceeding undermines the reliability of the
outcome of the proceeding. Morales v. Ault, 476 F.3d
545 (8th Cir.2007) (citing Odem v. Hopkins, 382 F.3d
846, 851 (8th Cir.2004)). Additionally, actual prejudice does
not exist where a petitioner, at best, suffers the mere
possibility of prejudice. See Wainwright v. Torna,
455 U.S. 586, 587-88 (1982); Prewitt v. United
States, 83 F.3d 812, 819 (7th Cir.1996) (mere
possibility does not equal actual prejudice). Although the
two prongs of the “ineffective assistance”
analysis are described as sequential, courts “do not .
. . need to address the performance prong if petitioner does
not affirmatively prove prejudice.” Boysiewick v.
Schriro, 179 F.3d 616, 620 (8th Cir.1999).
to the extent that Petitioner's claims arise out the plea
process, he must show a reasonable probability that, but for
counsel's errors, he would not have pled guilty and would
have insisted on going to trial. See Strickland, 466