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United States v. Williamson

United States District Court, D. Kansas

September 23, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BRETT J. WILLIAMSON, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on defendant’s pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or. Correct Sentence By A Person In Federal Custody (Doc. #210) filed December 6, 2018 and pro se Motion For Summary Judgment (Doc. #227) filed July 15, 2019. The government opposes defendant’s Section 2255 motion; the government did not respond to his summary judgment motion. Government’s Response To Defendant’s Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or. Correct Sentence By A Person In Federal Custody (Doc. #225) filed May 28, 2019. For reasons stated below, the Court overrules defendant’s Section 2255 motion, denies a certificate of appealability and overrules as moot defendant’s motion for summary judgment.

         Factual And Procedural Background

         On May 14, 2014, a grand jury returned an indictment which charged defendant with three counts of attempting to employ, use, persuade, induce, entice and coerce a minor to engage in sexually explic it conduct for the purpose of transmitting a live visual depiction of such conduct, and transmitting the visual depiction in interstate commerce, in violation of 18 U.S.C. § 2251(a) (Counts 1, 2 and 3); and three counts of using a facility of interstate commerce to attempt to persuade, induce, entice and coerce an individual under the age of 18 to engage in sexual activity for which a person could be charged with a criminal offense, in violation of 18 U.S.C. § 2422(b) (Counts 4, 5 and 6). Superseding Indictment (Doc. #72) at 1-3.

         Initially, Assistant Federal Public Defender Thomas Bartee represented defendant. On May 23, 2013, Bartee filed a motion to withdraw, which the Court sustained. Motion To Withdraw (Doc. #22). On May 29, 2013, the Court appointed Robin Fowler as defense counsel. Doc. #27. On February 7, 2014, Fowler filed a motion to withdraw. Motion To Withdraw As Counsel (Doc. #45). After a hearing on February 11, 2014, the Court overruled his motion. Doc. #47. On May 30, 2014, the Court overruled defendant’s motion to reconsider its prior rulings not to appoint new counsel. Memorandum And Order (Doc. #86). On June 4, 2014, defendant filed his pro se Motion To Relieve Counsel And Continue Pro Se (Doc. #94), which the Court construed as a second motion to reconsider its prior rulings not to appoint new counsel and, in the alternative, a request to proceed pro se. The Court overruled defendant’s motion. Memorandum And Order (Doc. #95) filed June 4, 2014. On June 6, 2014, the Honorable Julie A. Robinson conducted a hearing on defendant’s request to proceed pro se. Order (Doc. #102). Although she recommended against it, Judge Robinson found that defendant had knowingly and voluntarily waived his right to counsel and allowed him to proceed pro se with Fowler as standby counsel. Id. at 1-2.

         On June 11, 2014, a jury found defendant guilty on all counts. On May 28, 2015, the Court sentenced him to 30 years in prison on Counts 1 through 3 and life in prison on Counts 4 through 6, to run concurrently.

         Defendant appealed the Court’s judgment and sentence. Assistant Public Defender Melody Brannon represented him on appeal. On July 26, 2017, the Tenth Circuit affirmed. See United States v. Williamson, 859 F.3d 843 (10th Cir. 2017). On October 16, 2017, defendant filed a petition for a writ of certiorari, which the Supreme Court denied on March 26, 2018. See Williamson v. United States, 138 S.Ct. 1324 (2018).

         On December 6, 2018, defendant filed this motion to vacate his sentence and on April 1, 2019, he filed a supplement to his motion. Motion To Vacate (Doc. #210); Certified Supplement To Defendant’s Motion To Vacate, Set Aside Or. Correct Sentence (Doc. #220). In his motion, defendant cites the following grounds for relief: (1) the indictment failed to state an offense; (2) the Court lacked subject matter jurisdiction; (3) the cumulative actions of the government, defense counsel and the Court deprived him of a fair trial; and (4) 18 U.S.C. § 2251(a) and K.S.A. § 21-5510 are unconstitutional. Defendant did not raise these arguments on direct appeal.

         On May 28, 2019, the government filed a response to defendant’s motion. It requests that the Court deny defendant’s motion in its entirety, deny his request for an evidentiary hearing and decline to issue a certificate of appealability. Government’s Response (Doc. #225) at 1. More specifically, the government argues that defendant’s claims are procedurally defaulted because he failed to raise them on direct appeal and he fails to show ineffective assistance.

         Analysis

         The Court applies a stringent standard of review when analyzing a Section 2255 petition and presumes that the proceedings which led to defendant’s conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). Section 2255 precludes defendant from raising issues he did not address in his direct appeal unless he can show cause excusing his procedural default and actual prejudice resulting from the errors of which he complains, or that a fundamental miscarriage of justice will occur if the Court does not address his claim. United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)).[1]

         As noted, defendant asserts the following grounds for relief: (1) the indictment failed to state an offense; (2) the Court lacked subject matter jurisdiction; (3) the cumulative actions of the government, defense counsel and the Court deprived him of a fair trial; and (4) 18 U.S.C. § 2251(a) and K.S.A. § 21-5510 are unconstitutional. As to claim 3, defendant attaches a lengthy addendum (13 single-spaced pages) with sub-claims and allegations labeled A through Q. As to claims 2, 3 and 4, defendant’s supplement adds 20 pages of supporting allegations. The government argues that all of defendant’s claims are procedurally defaulted because he did not raise them on direct appeal. To excuse his procedural default, defendant argues ineffective assistance of counsel on appeal, but he does not show that appellate counsel’s performance was deficient or prejudiced him in any way.

         To establish ineffective assistance of appellate counsel, defendant must show that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance was prejudicial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudicial performance, defendant must show a “reasonable probability” that but for counsel’s unprofessional errors, the result of the appeal would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome. See id. at 694. Furthermore, actual ineffectiveness claims which allege a deficiency in counsel’s performance are subject to a general requirement that defendant affirmatively prove prejudice. United States v. Reed, 766 Fed.Appx. 661, 671 (10th Cir. 2019). The Court need not address whether counsel’s performance was deficient if defendant cannot establish prejudice. See United States v. Jones, 852 F.2d 1275, 1277 (10th Cir. 1988). The burden is on defendant to show that he is entitled to relief by a preponderance of the evidence. Sa’Ra v. Raemisch, 536 Fed.Appx. 783, 787-88 (10th Cir. 2013).

         Although it is possible to bring a Strickland claim based on appellate counsel’s failure to raise a particular issue, it is difficult to show deficient performance under those circumstances because counsel need not and should not raise every nonfrivolous claim on appeal. See Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (citing Smith v. Robbins, 528 U.S. 259, 288 (2000)). To evaluate appellate counsel’s performance, the Court looks to the merit of the omitted issue. Id. Counsel’s failure to raise a meritless issue does not constitute deficient performance. Id.

         For substantially the reasons stated below, each of defendant’s four claims lack substantive merit. Accordingly, appellate counsel’s failure to raise these issues was not deficient and did not prejudice defendant.

         I. Sufficiency Of The Indictment (Claim 1)

         Defendant argues that the indictment was legally insufficient because (A) Counts 1 through 6 do not allege that defendant knew or believed that on account of the victim’s[2] youth, she was incapable of appreciating the nature of the conduct at the time of the offense, or he knew the victim was a minor; (B) Counts 1 through 6 do not identify the nature of the sexual conduct at issue; (C) Counts 1 through 3 fail to identify the victim; (D) Counts 4 through 6 do not identify which provision of K.S.A. § 21-5510 he allegedly violated; and (E) Counts 4 through 6 allege violations of K.S.A. § 21-5510 instead of federal criminal offenses. Motion To Vacate (Doc. #210) at 5.

         An indictment need only meet minimal constitutional standards, and the Court determines whether the indictment was sufficient by practical rather than technical considerations. United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997). An indictment is sufficient if it (1) contains the elements of the charged offense, (2) fairly informs defendant of the charge against which he must defend and (3) enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007); United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006). If the statute itself adequately states the elements of the offense, an indictment is sufficient if it generally sets outs the words of the statute. United States v. Darrell, 828 F.2d 644, 647 (10th Cir. 1987).

         A. Defendant’s Knowledge Of Victim’s Age

         Defendant asserts that the indictment failed to state an offense under 18 U.S.C. §§ 2251(a) (Counts 1-3) or 2422(b) (Counts 4-6) because it did not allege that defendant knew that on account of the victim’s youth, she was incapable of appraising the nature of the conduct at the time of the offense, or that he knew the victim was a minor.

         In Resendiz-Ponce, the Supreme Court held that an indictment was sufficient when it referenced the relevant criminal statute, used the word “attempt” and specified the time and place of the attempted offense. 549 U.S. at 108. The Supreme Court embraced the general principle that an indictment which parrots the language of a federal criminal statute is often sufficient. Id. at 109; see United States v. Williamson, 903 F.3d 124, 130 (D.C. Cir. 2018). Here, Counts 1 through 3 and 4 through 6 track the statutory language of Sections 2251(a) and 2422(b), respectively, and state the time and place of the charged offenses. See United States v. Devore, 771 Fed.Appx. 427, 428 (9th Cir. 2019); see also United States v. Barrios-Ramos, 732 Fed.Appx. 457, 460 (7th Cir. 2018) (Resendiz-Ponce generally suggests indictment need not specifically allege element if stated implicitly); United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007) (indictment does not require more specificity than statutory language as long as sufficient facts permit defendant to prepare defense and invoke double jeopardy in subsequent prosecution); United States v. Smith, 223 F.3d 554, 571 (7th Cir. 2000) (not necessary to spell out each element if elements present in context); Dashney, 117 F.3d at 1205 (“When reviewing a post-verdict challenge to an indictment asserting the absence of an element of the offense, the indictment is sufficient if it contains words of similar import to the element in question.”) (internal quotation marks omitted); United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir. 1988) (no additional detail needed in indictment that quoted statute and listed date, location and specific controlled substance); Darrell, 828 F.2d at 647 (“An indictment that sets forth the words of the statute generally is sufficient so long as the statute itself adequately states the elements of the offense.”).

         Counts 1 through 3 were sufficient to put defendant on fair notice of the intent component of the charges, i.e. his knowledge or belief that the victim was a minor. See Devore, 771 Fed.Appx. at 428 (“When used in the law, the word ‘attempt’ connotes both action and intent.”) (citing Resendiz-Ponce, 549 U.S. at 107). As to Counts 4 through 6, knowledge that the victim was a minor is not an element of attempting to violate Section 2422(b).[3] See United States v. Isabella, 918 F.3d 816, 848 (10th Cir. 2019) (setting forth elements). Knowledge that the victim was incapable of appraising the nature of the conduct at the time of the offense is not an element of either offense. The indictment sufficiently charges that defendant attempted to violate Sections 2251(a) and 2422(b).

         B. Nature Of The Sexual Conduct

         Defendant challenges the sufficiency of Counts 1 through 6 of the indictment because they fail to “identify the nature of the sexual conduct at issue” and therefore prevent him from asserting a double jeopardy defense in future prosecutions. Motion To Vacate (Doc. #210) at 5; Petitioner’s Reply (Doc. #226) at 2-3.

         To provide sufficient notice of the crimes charged under 18 U.S.C. §§ 2251(a) and 2422(b), the indictment need only allege that defendant attempted to persuade his victims to engage in “sexually explic it conduct” (Counts 1-3) and “sexual activity for which a person could be charged with a criminal offense” under Kansas law (Counts 4-6), respectively. For all counts, the indictment described the conduct at issue with enough specificity such that defendant could prepare his defense. Defendant does not cite relevant authority which supports his argument that the indictment must contain additional detail regarding the nature of the sexual conduct. In addition, the indictment preserved defendant’s double jeopardy rights because if “any other proceedings are taken against him for a similar offense . . . the record shows with accuracy to what extent he may plead a former acquittal or conviction.”[4] United States v. Washington, 653 F.3d 1251, 1259 (10th Cir. 2011) (quoting Russell v. United States, 369 U.S. 749, 763-64 (1962)). Defendant has not shown that Counts 1 through 6 were facially deficient.

         C. Victim’s Identity

         Defendant challenges the sufficiency of Counts 1 through 3 because they do not specifically identify the victim. Defendant’s arguments fail because to state an offense under 18 U.S.C. § 2251(a), the indictment need not specifically identify the minor victim. See United States v. Theis, 853 F.3d 1178, 1181 (10th Cir. 2017) (citing Ortiz-Graulau v. United States, 756 F.3d 12, 19 (1st Cir. 2014)) (identification of specific minor not required for conviction under 18 U.S.C. § 2251(a)).

         D. Specific Subsection Of ...


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