United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.
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.
And Procedural Background
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.
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.
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.
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.
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.
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
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
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.
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).
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.
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.
Sufficiency Of The Indictment (Claim 1)
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 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.
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).
Defendant’s Knowledge Of Victim’s Age
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.
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.”).
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). 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)
Nature Of The Sexual Conduct
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.
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.” 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
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)).
Specific Subsection Of ...