Wilson v. United States of America

Filing 8

OPINION MEMORANDUM re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Petitioner Devin C. Wilson. IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. 1], is DENIED. IT IS FURTHER ORDERED that th is Court will not issue a Certificate of Appealability as Movant has not made a substantial showing of the denial of a federal constitutional right. A separate judgment is entered this same date. Signed by Honorable Henry E. Autrey on 5/29/2012. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DEVIN C. WILSON,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:10CV169 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Movant’s Motion under 28 U.S.C. § 2255
by a Person in Federal Custody, [Doc. No. 1]. Pursuant to this Court’s Order, the
government has responded to the motion. For the reasons set forth below, the
Motion under § 2255 is denied without a hearing.
Movant’s Claims
Movant makes the following claims:
Ground One, Six, Seven: Prosecutorial Misconduct
1. During opening motions, the government and the Court conspired to
dismiss two counts of possession of child pornography for the specific purpose of
denying Movant the defense of mistake of age.
6. Government withheld statements of police officers regarding the victim.
7. Selective prosecution. Movant claims that Officer Brown, in allowing
Movant and two naked women to leave after being stopped by Brown, was
made a party to various crimes.

Grounds Two, Four, Six, and Ten Ineffective Assistance of Counsel
2. Counsel failed to object to dismissal of some of the charges against
Movant.
4. Counsel failed to argue the terminology and application of that
terminology found in the statutes giving rise to the charges against Movant.
6. Same grounds as prosecutorial misconduct as stated above.
10. Government established during the pretrial conference that the
“knowingly transported” element of the case was yet to be proven; defense
attorney stated in opening remarks that the “facts arising out of this case do not
begin on August 21st when Devin Wilson drove Christina Walker back to
Missouri.”
Ground Three: Misinterpretation and Misapplication of 18 U.S.C. § 2423
and § 2251
Movant claims the government and the Court wrongfully dissected
the wording of the statute and misapplied that misinterpretation.
Ground Five: Indictment Fatally Flawed
Movant argues that the victim in this case testified before the Grand
Jury that she had been kidnaped and forced into prostitution. She later
testified at trial that she was not kidnaped and had, in fact, been a willing
participant in the entire excursion, causing the indictment to be fatally
flawed.
Ground Eight: Insufficiency of the Evidence.
Movant was charged with felon in possession with a hand gun based on the
victim’s statement that she saw drugs and a gun in the closet; the apartment was
not Movant’s but rather, his brother’s and therefore there was no evidence that he
was in possession of a gun.
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Ground Nine: Tainted Evidence
While searching Movant’s vehicle, police discovered a cell phone which
was not listed with particularity in the search warrant nor in the affidavit for the
search warrant nor did the cell phone meet the requirements of the plain view
doctrine as later claimed by the investigating officers and the government which
later claimed that the cell phone was found in the residence, not Movant’s vehicle.
According to Movant, the cell phone was subject therefore to a warrantless search.
Facts and Background
Movant was charged with transporting a minor across state lines for
prostitution, two counts of producing child pornography, two counts of possession
of child pornography, and one count of felon in possession of a firearm.
A jury trial was held, and on February 29, 2008, the jury convicted Movant
of the four charges which remained from an Amended Indictment--transporting a
minor across state lines for prostitution, two counts of producing child
pornography and felon in possession of a firearm. The government had previously
dismissed the possession of child pornography counts. Movant was sentenced to
440 months imprisonment in May, 2008.
Movant appealed his conviction, challenging the denial of his motion to
suppress and the admission of the evidence therefrom, the denial of his request to
present a mistake of age defense, the Court’s ruling that the government did not
have to prove that Movant knew the age of the victim, the validity of the
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indictment, and the sufficiency of the evidence that supported his conviction.
Movant’s conviction was affirmed on May 14, 2009. Movant’s petition for writ of
certiorari was denied on January 10, 2010.
Standards for Relief Under 28 U.S.C. 2255
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief from a
sentence imposed against him on the ground that “the sentence was imposed in
violation of the Constitution or law 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.” 28
U.S.C. § 2255. Claims brought under § 2255 may also be limited by procedural
default. A Movant “cannot raise a nonconstitutional or nonjurisdictional issue in a
§ 2255 motion if the issue could have been raised on direct appeal but was not.”
Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v.
United States, 975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even
constitutional or jurisdictional claims not raised on direct appeal cannot be raised
collaterally in a § 2255 motion “unless a petitioner can demonstrate (1) cause for
the default and actual prejudice or (2) actual innocence.” United States v. Moss,
252 F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614,
622 (1998)). Claims based on a federal statute or rule, rather than on a specific
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constitutional guarantee, “can be raised on collateral review only if the alleged
error constituted a ‘fundamental defect which inherently results in a complete
miscarriage of justice.’” Reed v. Farley, 512 U.S. 339, 354 (1994)(quoting Hill v.
United States, 368 U.S. 424, 477 n. 10 (1962)).
The Court must hold an evidentiary hearing to consider claims in a § 2255
motion “unless the motion, files and records of the case conclusively show that the
prisoner is entitled to no relief.” Shaw v. United States, 24 F.3d 1040, 1043 (8th
Cir. 1994)(citing 28 U.S.C. § 2255). Thus, a “[movant] is entitled to an
evidentiary hearing ‘when the facts alleged, if true, would entitle [movant] to
relief.’” Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996)(quoting Wade v.
Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)). The Court may dismiss a claim
“without an evidentiary hearing if the claim is inadequate on its face or if the
record affirmatively refutes the factual assertions upon which it is based.” Shaw,
24 F.3d at 1043. Since the Court finds that Movant’s claims can be conclusively
determined based upon the parties’ filings and the records of the case, no
evidentiary hearing will be necessary.
Standard for Ineffective Assistance of Counsel
It is well-established that a petitioner’s ineffective assistance of counsel
claim is properly raised under 28 U.S.C. § 2255 rather than on direct appeal.
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United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy,
560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective
assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648,
658 (1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To prevail
on an ineffective assistance of counsel claim, a convicted defendant must first
show counsel’s performance “fell below an objective standard of reasonableness.”
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also
establish prejudice by showing “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id., at 694.
Under Strickland, a petitioner must show that his counsel's
performance was both deficient and prejudicial to obtain relief. Id. at
687, 104 S.Ct. 2052. That is, “the movant must show that his
lawyer’s performance fell below the minimum standards of
professional competence (deficient performance) and that there is a
reasonable probability that the result of the proceedings would have
been different if his lawyer had performed competently (prejudice).”
Alaniz v. United States, 351 F.3d 365, 367–68 (8th Cir.2003) (citing
Strickland, 466 U.S. at 690, 694, 104 S.Ct. 2052). “Our scrutiny of
counsel’s performance must be ‘highly deferential.’” New v. United
States, 652 F.3d 949, 952 (8th Cir.2011) (citing Strickland, 466 U.S.
at 687, 104 S.Ct. 2052).
Hamberg v. U.S., 2012 WL 1058950, 2 (8th Cir 2012).
Both parts of the Strickland test must be met in order for an ineffective

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assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,
753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires
a “showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Review of
counsel’s performance by the court is “highly deferential,” and the Court
presumes “counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. The court does not “second-guess” trial strategy or
rely on the benefit of hindsight, id., and the attorney’s conduct must fall below an
objective standard of reasonableness to be found ineffective, United States v.
Ledezma-Rodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the
alleged deficient performance) would have been rejected, counsel's performance is
not deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to
“eliminate the distorting effects of hindsight” by examining counsel’s performance
from counsel’s perspective at the time of the alleged error. Id.
The second part of the Strickland test requires that the movant show that he
was prejudiced by counsel’s error, and “that ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at
694). “A reasonable probability is a probability sufficient to undermine
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confidence in the outcome.” Strickland, 466 U.S. at 694. When determining if
prejudice exists, the court “must consider the totality of the evidence before the
judge or jury.” Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir.
2006).
The first prong of the Strickland test, that of attorney competence, is applied
in the same manner to guilty pleas as it is to trial convictions. The prejudice
prong, however, is different in the context of guilty pleas. Instead of merely
showing that the result would be different, the defendant who has pled guilty must
establish that “there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985); Matthews v. United States, 114 F.3d 114.
Where a defendant raises multiple claims of ineffective assistance, each
claim of ineffective assistance must be examined independently rather than
collectively. Hall v. Luebbers,296 F.3d 385, 692-693 (8th Cir.2002); Griffin v.
Delo, 33 F.3d 895, 903-904 (8th Cir.1994).
Discussion
Dismissal of Counts IV and V (Grounds One and Two)
Rule 48(a) of the Federal Rules of Criminal Procedure provides that the
government may, with leave of Court, and without the consent of the defendant,
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dismiss an indictment, information or complaint prior to trial. Moreover, as the
government correctly argues, Movant could not have been prejudiced by the
dismissal of the charges since he was convicted of production of child
pornography, an offense of which Movant’s proposed defense was unavailable.
Likewise, because Movant cannot establish prejudice by the dismissal of the
charges, Movant cannot establish ineffective assistance of counsel for failing to
object and/or appeal the dismissal of the charges.
Government’s failure to prove knowledge of victim’s age (Grounds Three and
Four)
Movant argues that the government misinterpreted the language of Section
2423, seeking to impose a statutory requirement that the government prove
knowledge of the victim’s age by Movant. The statute includes no such
requirement. See U.S. v. Wilson, 565 F.3d 1059, 1069 (8th Cir. 2009).
Accordingly, the government’s presentation of this case cannot be construed as
misinterpreting § 2423. By the same token, because there is no such requirement
in the statute, Movant cannot demonstrate counsel was ineffective for failing to
object to the government’s argument.
Fatally Flawed Indictment (Ground Five)
Movant raised this issue on appeal. The Eighth Circuit Court of Appeals

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considered, and denied this ground for relief.
Wilson claims that the Victim told the grand jury that he
kidnapped her from Oklahoma, whereas she now acknowledges that
she left with him willingly. According to the government, she never
alleged to the grand jury that she had been kidnapped. The
government argues that the Victim only mentioned the kidnapping in
her testimony concerning what she told the police when they arrived
at Wilson's residence.
Regardless of which version is accurate, Wilson's challenge to the
indictment is without merit because “[e]ven assuming ... that there
were errors in the charging decision that may have followed from the
conduct of the prosecution ..., the petit jury's guilty verdict rendered
those errors harmless.” Kouba, 822 F.2d at 774. “Except in cases
involving racial discrimination in the composition of the grand jury, a
guilty verdict by the petit jury generally excuses errors at the grand
jury level that are ‘connected with the charging decision....’ ”
Hintzman, 806 F.2d at 843 ( quoting United States v. Mechanik, 475
U.S. 66, 70, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986)). “A petit jury's
‘subsequent guilty verdict not only means that there was probable
cause to believe that the defendant[ ][was] guilty as charged, but that
[he was] in fact guilty as charged beyond a reasonable doubt.” Kouba,
822 F.2d at 774 ( quoting Mechanik, 475 U.S. at 70, 106 S.Ct. 938).
Wilson, 565 F.3d at 1070.
Withholding police statements-Prosecutorial Misconduct and Ineffective
Assistance of Counsel (Ground Six)
Movant claims that the government allowed the victim to falsely testify
regarding the events surrounding the victim’s transportation to Missouri. The
record clearly establishes that the government addressed the inconsistencies of the
victim’s testimony and repeatedly pointed out that the victim willingly went with
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Movant. Nothing in the record supports Movant’s contention that the government
acted improperly with regard to the victim’s version of the events. Moreover,
Movant’s claim that counsel failed to impeach the victim is not supported by the
record. Clearly, counsel vehemently defended Movant in his cross examination of
the victim and in his arguments. As such, neither the claim of prosecutorial
misconduct, nor ineffective assistance of counsel are meritorious.
Selective Prosecution (Ground Seven)
Movant alleges prosecutorial misconduct through “selective prosecution.”
Movant argues that Officer Brown had in fact become a part of Movant’s crimes
by allowing Movant and the nude female passengers to proceed provided the nude
female would drive the vehicle with Movant as a passenger. Movant has
presented no evidence to support his claim that Officer Brown was even aware of
the crimes for which Movant was charged and convicted. This ground is
meritless.
Insufficiency of the Evidence (Ground Eight)
Movant claims that there was insufficient evidence to support his conviction
for possession of a firearm by a convicted felon. This claim was raised on appeal
and denied by the Eighth Circuit Court of Appeals.
Regarding his conviction for being a felon in possession of a firearm,
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[Movant] stipulated that he had been previously convicted of a
felony. He does not challenge the seizure of the firearm from his
residence. Witnesses testified that the firearm belonged to [Movant].
This was sufficient to support a conviction under 18 U.S.C. § 922(g).
Wilson, 565 F.3d at 1071.
Tainted Evidence (Ground Nine)
Movant argues counsel was ineffective because he failed to object to the use
of evidence found on his cell phone which he believes was illegally seized. The
record clearly establishes that counsel filed a motion to suppress this evidence,
litigate the motion, and appealed the denial of the motion to the Eighth Circuit.
The Eighth Circuit sustained this Court’s determination that the cell phone had
been lawfully seized as it was in plain view. The phone, therefore was properly
admitted into evidence. Wilson, 565 F.3d at 1065. Counsel therefore cannot be
held to have been ineffective considering the steps he took to attempt to suppress
the cell phone and the fact that the Eighth Circuit found the evidence admissible.
Ineffective Assistance of Counsel for Admission that Movant Transported the
Victim (Ground Ten)
Movant claims counsel was ineffective for admitting that he had transported
the victim across state line without the government having proven this fact. In his
defense of Movant, counsel strategically focused on Movant’s lack of knowledge
of the victim’s age rather than arguing that Movant had not brought her from
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Oklahoma to Missouri. The record supports this strategy as sound. The victim
testified that she came to Missouri with Movant; her personal belongings were
found in Movant’s apartment; pictures of the victim engaged in sex acts were
found on Movant’s cell phone and video camera; the victim was found naked
riding in Movant’s car. All of these facts completely derail the theory that Movant
had not transported the victim across state lines. Rather than decrease the strength
of the defense of mistake as to the victim’s age with the unplausible argument that
the victim did not travel with Movant across state lines, counsel’s strategy to focus
the defense upon Movant’s mistake as to the victim’s age was within the
reasonable bounds of effectiveness, and thus, satisfies the Strickland standard.
Ground Ten is therefore without merit.
Conclusion
Movant has failed to establish any grounds upon which to establish
ineffective assistance of counsel, prosecutorial misconduct, insufficient or tainted
evidence, misinterpretation of the applicable statutes, or an insufficient indictment.
Movant’s motion will be denied in its entirety.
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
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substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). A substantial showing of the denial of a constitutional right requires
that “issues are debatable among reasonable jurists, a court could resolve the
issues differently, or the issues deserve further proceedings.” Cox v. Norris, 133
F.3d 565, 569 (8th Cir. 1997). Based on the record, and the law as discussed
herein, the Court finds that Movant has not made a substantial showing of the
denial of a constitutional right.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or
Correct Sentence, [Doc. 1], is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Movant has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 29th day of May, 2012.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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