Russell v. United States of America

Filing 13

MEMORANDUM AND ORDER re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Petitioner Christopher Russell. IT IS HEREBY ORDERED that the motion of Christopher Russell to vacate, set aside or correct his sentence pursuant to 28 U .S.C. Section 2255 is DENIED. IT IS FURTHER ORDERED that the motion for an evidentiary hearing is DENIED. IT IS FURTHER ORDERED that this Court will not issue a certificate of appealability, as Russel has not made a substantial showing of the denial of a federal constitutional right. Signed by District Judge Rodney W. Sippel on October 16, 2013. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHRISTOPHER RUSSELL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 4:11 CV 1104 RWS

MEMORANDUM AND ORDER
Petitioner Christopher Russell has filed a motion under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence by a Person in Federal Custody. Russell asserts several claims,
including that his plea was not entered into voluntarily or knowingly, that he received ineffective
assistance of counsel, that this Court lacked jurisdiction over his criminal case, and that he is
actually innocent.
For the reasons set forth below, I will deny Russell's motion.
I.

Background
On March 18, 2010, Russell was indicted by a federal grand jury in a two count

indictment. In both counts he was charged with possession of child pornography in violation of
Title 18, United States Code, Section 2252A(a)(5)(B). On February 14, 2011, Russell pleaded
guilty to Count I. At his plea hearing, Russell stated, under oath, that the Plea Agreement was
true and correct. The Plea Agreement set forth the following facts:
In 2007, St. Louis County Police identified a computer located in the State of Missouri
that was offering to participate in the distribution of known child pornography. (Plea Agreement
at 9). A subpoena issued to Charter Communications revealed that the subscriber was Ronica

Shelton. Id. Based upon this information, law enforcement officers applied for and obtained a
search warrant for Ronica Shelton’s residence. Id. Law enforcement officers executed the
warrant on February 25, 2008. Id. Law enforcement officers seized a Gateway 2000 Desktop
Computer containing a Quantum hard drive and a Compaq Presario Desktop Computer
containing a Seagate hard drive. Id. Russell was present at the time of the search and was later
interviewed by a police officer. Id. During the course of the interview, Russell made statements
indicating his knowing possession of child pornography as well as his use of the internet to
acquire those images. Id. at 10. A forensic examination was conducted on Russell’s seized hard
drives. Id. The examination found that both the Quantum hard drive and the Seagate hard drive
contained multiple images of child pornography. Id.
Russell filed pre-trial motions to suppress the evidence. I adopted United States
Magistrate Judge Thomas C. Mummert, III’s Report and Recommendation denying Russell’s
motion to suppress.
Russell appeared for a change of plea on December 23, 2009, but did not enter a plea of
guilty. The change of plea proceeding was continued to December 29, 2009. On December 29,
2009, Russell again declined to plead guilty. On April 1, 2010, Russell entered a guilty plea to
Count I in exchange for the Assistant United States Attorney’s promise to dismiss Count II, as
well as an agreement not to pursue a four-level enhancement for material containing sadistic or
violent behavior.
At his plea hearing, Russell told me, under oath, that he was satisfied with his counsel's
representation. (Plea Hr'g Tr. at 6). Russell told me that he had gone over his plea agreement
with counsel and that counsel answered all of Russell's questions. Id. at 8–9. Russell stated that
-2-

no one had made any other promise or assurance to him in order to induce him to plead guilty.
Id. at 14. Russell stated that he understood that he had the opportunity to plead not guilty and
have a trial by jury, and that he knew there would be no trial if he entered a guilty plea. Id. at
7–8.
The United States Probation Office prepared a presentence investigation report (PSR).
The Assistant United States Attorney subsequently learned that Russell might have a juvenile
criminal record that had not been available to the Probation Office. The PSR was amended and
as a result, Russell’s Criminal History Category was changed from Category I to Category III.
Based on the amended PSR, the advisory guideline range for Russell’s sentence increased from
46 to 57 months to 57 to 71 months. Absent the plea agreement, the guideline range would have
been 100 to 125 months. However, I found that a Criminal History Category I would be more
appropriate, granted a further variance, and sentenced Russell to a sentence of 42 months
imprisonment to be followed by supervised release for life. (Sentencing Hr'g Tr. at 23–24).
Russell now claims, contrary to what he said under oath at his plea hearing, that his guilty
plea was not made knowingly or voluntarily and that he received ineffective assistance of
counsel. He also asserts that this Court lacked jurisdiction to hear his criminal case. He also
appears to assert a claim of actual innocence.
II.

Grounds for Relief
In his 28 U.S.C. § 2255 motion, Russell alleges the following grounds for relief:
1.

He was subject to prosecutorial misconduct in that the Assistant United States

Attorney requested a continuance of the sentencing hearing so that his juvenile records could be
obtained;
-3-

2.

His plea was not made knowingly or voluntarily because his counsel did not

adequately explain the plea agreement or the consequences of a guilty plea;
3.

He was denied effective assistance of counsel in violation of the Sixth

Amendment when his counsel failed to:
(a) explain the plea agreement;
(b) challenge alleged violations of Russell’s First and Fourth Amendment rights;
(c) file a motion to suppress the warrant due to staleness of information;
(d) point out an error in the criminal cover sheet;
(e) object to the enhancement for use of a computer when the enhancement is built
into the original offense;
(f) preserve his rights to a speedy trial; and
(g) challenge this Court's jurisdiction;
4.

This Court lacks jurisdiction because there is no sufficient interstate nexus

and the charged conduct is not commercial; and
5.

Russell is actually innocent because the word "materials" in the child pornography

statute does not include computers and hard drives.
III.

Standard for § 2255 Relief
Section 2255 of Title 28 of the United States Code provides as follows:

A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground [1] that the sentence was imposed in
violation of the Constitution or laws of the United States, or [2] that the court was
without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the
maximum authorized by law, or [4] is otherwise subject to collateral attack, may move
the court which imposed the sentence to vacate, set aside or correct the sentence.

-4-

28 U.S.C. § 2255; Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) ("Under 28 U.S.C.
§ 2255 a defendant in federal custody may seek post conviction relief on the ground that his
sentence was imposed in the absence of jurisdiction or in violation of the Constitution or laws of
the United States, was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack."). A motion pursuant to § 2255 "is 'intended to afford federal prisoners a
remedy identical in scope to federal habeas corpus.'" United States v. Wilson, 997 F.2d 429, 431
(8th Cir. 1993) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)).
"'Issues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral
proceeding based on 28 U.S.C. § 2255.'" Theus v. United States, 611 F.3d 441, 449 (8th Cir.
2010) (quoting United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001)). One exception arises
when there is a "miscarriage of justice," but the Eighth Circuit Court of Appeals has "recognized
such an exception only when petitioners have produced convincing new evidence of actual
innocence," and the Supreme Court has not extended the exception beyond situations involving
actual innocence. Wiley, 245 F.3d at 752. "[T]he Court has emphasized the narrowness of the
exception and has expressed its desire that it remain rare and available only in the extraordinary
case." Id. (citations omitted). Section 2255 ordinarily "is not available to correct errors which
could have been raised at trial or on direct appeal." Ramey v. United States, 8 F.3d 1313, 1314
(8th Cir. 1993). "Where a defendant has procedurally defaulted a claim by failing to raise it on
direct review, the claim may be raised in habeas only if the defendant can first demonstrate either
cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S.
614, 622 (1998) (citations omitted).
IV.

ANALYSIS
-5-

A.

Russell Was Not Subject to Prosecutorial Misconduct

Russell claims that the Assistant U.S. Attorney manipulated the Court and the Probation
Office by asking for a continuance of the sentencing so that it could request an order from the
Court permitting the Probation Office to obtain Russell’s juvenile records, and then had the
Probation Office change his criminal history category from I to III. While Russell does not
explicitly refer to prosecutorial misconduct, I construe this as such a claim.
No formal limitations are imposed on the contents of pre-sentence reports, or the sources
from which their information may be obtained. Gregg v. U.S., 394 U.S. 489, 492.
Fed.R.Crim.P. 32(c) requires only that the defendant have an opportunity to see the report and
the opportunity to object to the report at the sentencing hearing. Kohley v. United States, 784
F.2d 332, 334 (8th Cir. 1986). A defendant’s juvenile criminal history is an appropriate
sentencing consideration. United States v. Johnson, 572 F.3d 449, 454 (8th Cir. 2009).
The Assistant U.S. Attorney did not engage in any misconduct by requesting an order
releasing Russell’s juvenile record. Further, Russell did not receive any criminal history points
for the juvenile conviction. (Sentencing Hr'g Tr. at 23). As a result, he did not suffer any harm
as a result of the inclusion of his juvenile record.
B.

Russell's Guilty Plea Was Made Knowingly and Voluntarily

Russell alleges that his guilty plea was not made knowingly and voluntarily. He asserts
that his attorney did not adequately explain the nature of the charges against him and the
consequences of his plea, and that he therefore did not understand them. This claim is directly
contradicted by the Plea Agreement, Russell's plea colloquy, and the transcript of his sentencing
hearing.
-6-

In his Plea Agreement, Russell agreed to "waive all rights to contest the conviction . . . in
any post-conviction proceeding, including one pursuant to" § 2255 "except for claims of
prosecutorial misconduct or ineffective assistance of counsel." (Plea Agreement at 4). The Plea
Agreement, Russell's plea colloquy, and the transcript of his sentencing hearing clearly
demonstrate that Russell knowingly and voluntarily waived his right to file this motion.
Because Russell also has not contested that these waivers were given both "knowingly
and voluntarily," the waiver is enforceable. United States v. Rutan, 956 F.2d 827, 829 (8th Cir.
1992) ("If a waiver of appeal is made knowingly and voluntarily, it is enforceable."). However,
even if Russell's challenge to the voluntariness of his plea could be construed as an ineffective
assistance of counsel claim, which would survive his waiver of § 2255 post-conviction relief, it
still must fail the reasons stated below.
C.

Russell Received Effective Assistance of Counsel

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his
defense." U.S. CONST . AMEND . VI. A claim of ineffective assistance of counsel should be raised
in a § 2255 proceeding, rather than on direct appeal. See United States v. Hughes, 330 F.3d
1068, 1069 (8th Cir. 2003) ("When claims of ineffective assistance of trial counsel are asserted
on direct appeal, we ordinarily defer them to 28 U.S.C. § 2255 proceedings.").
To prevail on a claim alleging ineffective assistance of counsel, the defendant must
satisfy the two-part test of Strickland v. Washington, 466 U.S. 668 (1984). For a convicted
defendant to prove his counsel was ineffective, the defendant must first show that the counsel's
performance was deficient. Strickland, 466 U.S. at 687. This requires the defendant to show
-7-

"that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed
the defendant by the Sixth Amendment." Id. A defendant can demonstrate that counsel's
performance was deficient where counsel's performance "'fell below an objective standard of
reasonableness.'" Wiggins v. Smith, 539 U.S. 510, 522 (2003) (quoting Strickland, 466 U.S. at
688). But "[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). And "[t]here is a 'strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance.'" Id. (quoting
Strickland, 466 U.S. at 689). If the defendant fails to show that his counsel was deficient, the
court need not address the second prong of the Strickland test. Brown v. United States, 311 F.3d
875, 878 (8th Cir. 2002).
Second, the defendant must demonstrate that the deficient performance was "so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at
687. "The 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 is a probability sufficient to undermine confidence in the outcome." Id. at 694. In the
context of a guilty plea, a "defendant must show 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).
The Eighth Circuit has described the Strickland test as follows: the questions a court must
ask are "[w]hether counsel's performance was in fact deficient and, if so, whether the defendant
was prejudiced by the inadequate representation. If we can answer 'no' to either question, then
-8-

we need not address the other part of the test." Fields v. United States, 201 F.3d 1025, 1027 (8th
Cir. 2000). When evaluating counsel's performance, the court "must indulge in a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance." Strickland, 466 U.S. at 689. Considered objectively, counsel's performance is
gauged by "whether it was reasonable 'under prevailing professional norms' and 'considering all
the circumstances.'" Fields, 201 F.3d at 1027 (quoting Strickland, 466 U.S. at 688). "[W]e avoid
making judgments based on hindsight." Id. A reviewing court's "scrutiny of counsel's
performance must be highly deferential." Strickland, 466 U.S. at 689.
Where a defendant raises multiple claims of ineffective assistance, each claim must be
examined independently rather than collectively. Hall v. Luebbers, 296 F.3d 685, 692-93 (8th
Cir. 2002).
a.

Counsel Did Not Fail To Adequately Explain the Plea Agreement

"Out of just consideration for persons accused of crime, courts are careful that a plea of
guilty shall not be accepted unless made voluntarily after proper advice and with full
understanding of the consequences. When one so pleads, he may be held bound." United States
v. Frook, 616 F.3d 773, 775 (8th Cir. 2010) (quoting Kercheval v. United States, 274 U.S. 220
(1927)). "The voluntariness of a guilty plea presents a mixed question of law and fact subject to
independent review by this court." Porter v. Lockhart, 925 F.2d 1107, 1110 (8th Cir. 1991)
(quoting Blalock v. Lockhart, 898 F.2d 1367, 1370 (8th Cir. 1990)).
"The test for determining the validity of a guilty plea is 'whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the defendant.'"
Id. at 1110 (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)). A guilty plea is voluntary
-9-

if it is "entered by one fully aware of the direct consequences, including the actual value of any
commitments made to him by the court, prosecutor, or his own counsel . . . ." Brady v. United
States, 397 U.S. 742, 755 (1970). "[I]t must stand unless induced by threats (or promises to
discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable
promises), or perhaps by promises that are by their nature improper as having no proper
relationship to the prosecutor's business (e.g. bribes)." Id. (citation omitted). When a defendant
pleads guilty and then later alleges that the plea was not made voluntarily, "the defendant must
show 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). Here, Russell has failed to show that any information which formed the basis of his
sentence was a surprise or was not contemplated by the Plea Agreement.
A "defendant's representations during the plea-taking carry a strong presumption of verity
and pose a 'formidable barrier in any subsequent collateral proceedings.'" Nguyen v. United
States, 114 F.3d 699, 703 (8th Cir. 1997) (quoting Voytik v. United States, 778 F.2d 1306, 1308
(8th Cir. 1985)). Russell has a heavy burden to overcome admissions made at a plea hearing to
show that the plea was involuntary and not intelligently entered.
Russell claims that his plea was not intelligently entered because
[m]erely reading the plea agreement does not put a defendant on notice as to what
the law is, how the conduct alleged fits into that law, the pro's and con's of a trial
vs. a guilty plea, or the consequences of a trial over a plea. There is so much more
in considering and accepting a plea agreement, then verbally pleading guilty than
what's in the content of the plea agreement.
(Petition at 4–5). Russell's assertion that I directed Russell's counsel to read the entire
agreement to him prior to the plea proceedings, and that this is evidence that his counsel failed to
-10-

adequately explain the consequences of a guilty plea, is clearly contradicted by the record.
Whether or not a recess was taken in order for the plea agreement to be read to him, Russell
repeatedly affirmed under oath that he fully understood his plea and its consequences. At his
plea hearing, Russell stated that he was satisfied with his attorney's representation and the advice
given to him by his attorney. (Plea Hr'g Tr. at 6). He was asked if he had gone over the Plea
Agreement with his attorney, and he stated that he had and that he did not object to anything in it.
Id. at 8. He was asked if he understood that he had the right to plead not guilty and that by
pleading guilty he waived his right to a trial and other rights associated with a trial, and Russell
stated that he understood. Id. at 7.
The written Plea Agreement and stipulation Russell entered into with the government also
addressed the voluntariness of the guilty plea. The Plea Agreement contained the following
stipulation:
The defendant acknowledges that the defendant has voluntarily entered into both
this plea and these agreements, recommendations and stipulations. The defendant
further acknowledges that this guilty plea is made of the defendant's own free will
because the defendant is, in fact, guilty of the conduct specified in sections four
and five above.
(Plea Agreement at 18) (emphasis added). Furthermore, the Plea Agreement establishes that
Russell was fully advised of the rights he was giving up as a result of his guilty plea. The written
Plea Agreement contained the following stipulation:
The defendant's counsel has explained these rights and the consequences of the
waiver of these rights. The defendant fully understands that, as a result of the
guilty plea, no trial will, in fact, occur and that the only action remaining to be
taken in this case is the imposition of the sentence. The defendant is fully satisfied
with the representation received from defense counsel. The defendant has
reviewed the government's evidence and discussed the government's case and all
possible defenses and defense witnesses with defense counsel. Defense counsel
-11-

has completely and satisfactorily explored all areas which the defendant has
requested relative to the government's case and any defenses.
(Plea Agreement at 16) (emphasis added). Russell was aware of the possible penalties and the
length of his potential sentence prior to pleading guilty. The Plea Agreement contained the
following stipulation pertaining to the length of Russell's sentence:
The Defendant fully understands that the maximum penalty provided by law for
the crime to which the defendant is pleading guilty is a term of imprisonment of
not more than ten years, a fine of not more than $250,000, or both such
imprisonment or fine. The Court may also impose a period of supervised release
of not more than life.
(Plea Agreement at 13). Russell's awareness of the statutory maximum is also evident from the
plea colloquy, wherein the following exchange occurred:
COURT: Do you understand that the term of imprisonment for the charge to
which you're pleading guilty is a term of not more than ten years?
Russell: Yes, I do.
COURT: There is a maximum fine of $250,000?
Russell: Yes.
COURT: That you could be sentenced to the maximum term of imprisonment or
assessed the maximum fine or both?
Russell: Yes, I do.
(Plea Hr'g Tr. at 18). The record also indicates that Russell was fully aware of the charge
against him and the elements of the offense. (Plea Agreement at 13 and Plea Hr'g Tr. at 13).
Both the plea colloquy and plea stipulation contained a recitation of the factual basis for the plea.
(Plea Agreement at 9–13 and Plea Hr'g Tr. at 14–18).
Because Russell stated that he was satisfied with the work his counsel had done on his
behalf, that he knew of the maximum statutory penalty, that he was aware of the charge against
him and the elements of the offense, and that he was informed of the consequences of a guilty
plea, he cannot overcome the strong presumption that his attorney competently represented him
-12-

and that his guilty plea was voluntary. The record clearly establishes that he was fully aware of
his constitutional rights and that he waived those rights and pleaded guilty.
b.

Counsel's Failure to Challenge Alleged Violations of Russell’s First

and Fourth Amendment Rights Did Not Render Her Assistance Ineffective
Russell asserts that his attorney was ineffective for failing to challenge alleged violations
of Russell’s First and Fourth Amendment rights.
The grounds for Russell's First Amendment claim are unclear, however, it appears that he
asserts that he has a First Amendment right to possess images of child pornography. There is no
such First Amendment right. See Osborne v. Ohio, 495 U.S. 103 (1990); New York v. Ferber,
458 U.S. 747 (1982). Counsel is not ineffective for failing to make a meritless argument. Dyer
v. United States, 23 F.3d 1424, 1426 (8th Cir. 1994); see also Rodriguez v. U.S., 17 F.3d 225,
226 (8th Cir. 1994) ("[C]ounsel's failure to raise a meritless argument cannot constitute
ineffective assistance."). As a result, Russell's claim he received ineffective assistance of counsel
for counsel's failure to challenge violations of Russell's First Amendment rights is meritless.
Russell argues that his attorney was ineffective for failing to pursue violations of his
Fourth Amendment rights in that the search warrant in his case lacked probable cause. Russell's
attorney did, in fact, file a motion to suppress the seizure of evidence on the grounds that the
search warrant lacked probable cause. (Mot. to Suppress at 2).
However, Russell asserts an argument that his counsel did not bring in her Motion to
Suppress: that the initial search of "every computer . . . using a peer to peer file-sharing software
protocol . . . sharing a file that contained the word 'pre' or 'preteen' . . . violate[d] the 4th
Amendment." (Petition at 5–6).
-13-

When moving to suppress evidence on the basis of an alleged unreasonable search, the
defendant has the burden of showing a legitimate expectation of privacy in the area searched.
United States v. James, 534 F.3d 868, 872 (8th Cir. 2008). There is no reasonable expectation of
privacy in files on a personal computer which are accessible to others for file sharing based on a
defendant's installation and use of file sharing software. United States v. Stults, 575 F.3d 834,
843 (8th Cir. 2009). Thus a federal agent's use of a file-sharing program to access child
pornography files on a defendant's computer does not violate the defendant's Fourth Amendment
rights. Id.
Even when there is no reasonable expectation of privacy, a Fourth Amendment violation
may be found when the government trespasses upon the areas ("persons, houses, papers, and
effects") mentioned in the Constitutional text. United States v. Jones, 132 S. Ct. 945, 950
(2012). Here, however, Russell was using a file-sharing program that broadcast the contents of
his computer to the internet and invited users to search those contents. (Plea Agreement at
9–10). Thus no government trespass into Russell's home or effects occurred.
As a result, Russell's claim that his Fourth Amendment rights were violated is meritless,
and his counsel was not ineffective for failing to raise Russell's Fourth Amendment claim.
c.

Counsel Was Not Ineffective for Failing to Raise a Staleness Challenge

Russell argues that his counsel should have raised a staleness issue regarding the search
warrant. (Petition at 6). There is no bright-line test for determining when information is stale.
United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993). The factors in determining whether
probable cause has dissipated, rendering the warrant fatally stale, "include the lapse of time since
the warrant was issued, the nature of the criminal activity, and the kind of property subject to the
-14-

search." United States v. Gibson, 123 F.3d 1121, 1124 (8th Cir. 1997).
The 8th Circuit has held that a five-month delay between discovering information linking
a defendant's residence with child pornography and obtaining search warrant did not render the
warrant invalid based on staleness. United States v. Estey, 595 F.3d 836, 839 (8th Cir. 2010).
When coupled with other evidence, even information about possession of child pornography
which is several years old may be relevant to the determination of whether to issue a warrant,
because common sense dictates that images of child pornography are likely to be hoarded by
persons interested in those materials in the privacy of their homes. United States v. Hyer, 498 F.
App'x 658, 659 (8th Cir. 2013).
Here, law enforcement officers obtained the information contained in the search warrant
affidavit in November 2007. They applied for a search warrant based on that information in
February 2008. Any claim that the information contained in the search warrant was stale would
have been unsuccessful. Therefore, Russell’s attorney was not ineffective for failing to raise a
meritless argument. Dyer, 23 F.3d at 1426.
d.

Counsel's Assistance Was Not Ineffective in that She Did Not

Challenge an Error in the Criminal Cover Sheet
Russell argues that "counsel was also ineffective for failing to . . . inform the court that
[the criminal cover sheet] informed this petitioner . . . that supervised release was not more than
3 years." (Petition at 8).
This mistake meets neither prong of the Strickland test. The defendant must show errors
"so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth
Amendment." Strickland, 466 U .S. at 687. A "minor clerical error is not sufficient to raise an
-15-

issue of constitutional significance." Aldridge v. Dormire, 4:06 CV 1641 CEJ, 2010 WL 883656
(E.D. Mo. Mar. 5, 2010). Here, the error was minor, and Russell does not claim that as a result
of the error on the cover sheet, he was deprived of notice of the nature of the charges against him
or the sentence likely to be imposed.
This claim also fails because Russell must show that "but for counsel's unprofessional
errors, the result of the proceeding would have been different." Jeffries v. United States, 721
F.3d 1008, 1012 (8th Cir. 2013) (quoting Strickland, 466 U.S. at 669). Russell has not argued,
and it is hard to imagine, how fixing the cover sheet error could have changed the outcome in his case.
e.

Counsel's Failure to Object to the Enhancement for Use of a

Computer Did Not Constitute Ineffective Assistance
Russell argues that his counsel was ineffective for failing to challenge the enhancement
for the use of a computer, arguing that this enhancement "is built in to the original offense,"
because the vast majority of cases involve use of a computer. (Petition, 8).
Double counting occurs when one part of the Guidelines is applied to increase a
defendant's punishment on account of a kind of harm that has already been fully accounted for by
application of another part of the Guidelines. United States v. Zech, 553 F.3d 663, 668 (8th Cir.
2009) (internal quotations omitted). Impermissible double counting does not occur if the conduct
enhancing the punishment addresses conceptually separate sentencing notions. United States v.
Hackman, 630 F.3d 1078, 1084 (8th Cir. 2011).
Here, the possession of child pornography and the use of a computer are conceptually
separate notions. Russell cites no authority in support of the proposition that the vast majority of
child pornography cases involve use of a computer, but even taken as true, that assertion is
-16-

irrelevant in considering whether double counting has occurred. As the Assistant United States
Attorney correctly points out, "the Government has prosecuted individuals who have had printed
images of child pornography in their possession." (Resp. to Show Cause Order at 21). Other
cases have involved video cameras or other devices but not computers. See, e.g., United States
v. Wilson, 1:07CR53 HEA, 2008 WL 342397 (E.D. Mo. Feb. 5, 2008).
Therefore, Russell’s attorney was not ineffective for failing to raise a meritless argument.
Dyer, 23 F.3d at1426.
f.

Counsel Was Not Ineffective for Failing to Preserve Russell's Rights

to a Speedy Trial
Russell argues that his counsel was ineffective for failing to preserve his rights to a
speedy trial. (Petition at 9). He claims that this is "supported by the record as well." Id. He
offers no legal argument or specific evidence in support of this position. A review of the record
reveals no evidence of a speedy trial violation. Moreover, Russell filed not one, but two Waivers
of Speedy Trial. (Doc. 50-2, Doc. 69).
g.

Counsel Was Not Ineffective Due to her Failure to Challenge this

Court's Jurisdiction
Russell claims his counsel was ineffective for failing to challenge this Court's jurisdiction
over his criminal case. Specifically, Russell claims that this Court lacked jurisdiction because
there was an insufficient interstate nexus regarding his receipt of child pornography. I address
Russell's challenge to the Court's jurisdiction below. For the reasons stated there I find this claim
to be without merit. As a result, Russell's counsel cannot be constitutionally ineffective for
failing to make a meritless argument. Dyer, 23 F.3d at 1426.
-17-

D.

This Court Has Jurisdiction Because There Was a Sufficient Interstate

Nexus
Russell claims that this Court lacks jurisdiction over his criminal trial. Russell's claim is
without merit.
The Plea Agreement set forth the factual allegations that Russell accepted in choosing to
plead guilty, including the following stipulation:
the defendant admits to knowingly violating Title 18, United States Code, Section
2252A(a)(5), and admits there is a factual basis for the plea and further fully
understands that the elements of the crime of Possession of Child Pornography
are: (1) he knowingly possessed material that contained images of child
pornography; ( 2) which were visual depictions where the production of such
visual depictions involved the use of a minor engaging in sexually explicit
conduct and such visual depictions were of a minor engaging in sexually explicit
conduct; and (3) those images are contained on material that has been transported
in interstate commerce and were themselves transported in interstate commerce.
(Plea Agreement at 5) (emphasis added). The use of digital equipment to store child
pornography satisfies the interstate or foreign commerce element. The United States Court of
Appeals for the Eighth Circuit has held the interstate commerce element of § 2252A fulfilled
where child pornography was stored on a digital memory card which had previously been
transported in interstate and foreign commerce. United States v. Mugan, 441 F.3d 622, 628-30
(8th Cir. 2006). The images at issue in this case were found on two computers. The hard drive
in one of the computers was manufactured in Japan, and the hard drive in the other computer was
manufactured in China. These pieces of equipment were materials that had been "shipped or
transported in interstate or foreign commerce" under § 2252A(a)(2). As a result, the interstate
commerce element has been met.
Even if Russell's use of the hard drives does not satisfy the interstate commerce
-18-

requirement, Russell's use of the internet satisfies the interstate commerce requirement. United
States v. Trotter, 478 F.3d 918, 921 (8th Cir. 2007) (the internet is an instrumentality and channel
of interstate commerce and Congress has the power to regulate the internet). See also United
States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004) ("Congress clearly has the power to
regulate the internet, as it does other instrumentalities and channels of interstate commerce, and
to prohibit its use for harmful or immoral purposes regardless of whether those purposes would
have a primarily intrastate impact.")
E.

Russell is Not Actually Innocent
Russell appears to assert a free-standing actual innocence claim, arguing that 18

U.S.C. 2252A(a)(5)(B) does not apply to him because computers or hard drives are not
"materials":
The government claims jurisdiction by misinterpreting a phrase added to the
statute in 1996 est. The phrase "or was produced using materials that have been
mailed, shipped, or transported in interstate commerce by any means, including by
computer." The government and the court have misinterpreted the word
"materials" as meaning computers, hard drives, cds, cameras or other equipment.
(Petition at 7). 18 U.S.C. 2252A(a)(5)(B) provides for criminal liability for any person
who
knowingly possesses, or knowingly accesses with intent to view, any book,
magazine, periodical, film, videotape, computer disk, or any other material that
contains an image of child pornography that has been mailed, or shipped or
transported using any means or facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce by any means, including by computer, or
that was produced using materials that have been mailed, or shipped or
transported in or affecting interstate or foreign commerce by any means, including
by computer . . . .
18 U.S.C. 2252A(a)(5)(B) (emphasis added). Russell provides no authority for the
proposition that "materials" does not refer to computers, cameras or hard drives. But even if
-19-

Russell's interpretation of clause of the statute he cites is accurate, it is irrelevant, because his
criminal liability is not based on the clause of the statute he cites; rather, it is based on the clause
immediately preceding the one he cites: he knowingly possessed images of child pornography
that were "transported using any means or facility of interstate . . . commerce." 18 U.S.C.
2252A(a)(2). The internet is an instrumentality and channel of interstate commerce. United
States v. Trotter, 478 F.3d at 921.
Moreover, a free-standing claim of actual innocence is not cognizable in a collateral
proceeding such as a the instant § 2255 motion. "[A] claim of 'actual innocence' is not itself a
constitutional claim, but instead a gateway through which a habeas petition must pass to have
[an] otherwise barred constitutional claim considered on the merits." Herrera v. Collins, 506
U.S. 390, 404 (1993). See also Bousley v. United States, 523 U.S. 614, 623 (1998). "To
establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is
more likely than not that no reasonable juror would have convicted him." Schlup v. Delo, 513
U.S. 298, 327-328 (1995) (internal citations omitted).
Russell's free-standing actual innocence claim is not cognizable. Moreover, he has not
adduced any additional evidence that would support a finding that no reasonable juror would
have convicted him.
F.

An Evidentiary Hearing is not Warranted

I will not hold an evidentiary hearing on this matter. "A petitioner is entitled to an
evidentiary hearing on a section 2255 motion unless the motion and the files and records of the
case conclusively show that he is entitled to no relief." Anjulo-Lopez v. United States, 541 F.3d
814, 817 (8th Cir. 2008) (internal quotation marks omitted). However, an evidentiary hearing
-20-

need not be held if Russell's "allegations cannot be accepted as true because they are contradicted
by the record, inherently incredible or conclusions rather than statements of fact." Delgado v.
United States, 162 F.3d 981, 983 (8th Cir. 1998). Because the record conclusively shows that
Russell is not entitled to relief as a matter of law, I need not hold a hearing.
V.

Certificate of Appealability
For this Court to grant a certificate of appealability, Russell must make a substantial

showing that his constitutional right was denied. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997). "A substantial showing is a showing that issues are debatable among reasonable jurists, a
court could resolve the issues differently, or the issues deserve further proceedings." Id. For the
reasons set forth above, I find Russell has not made such a showing. As such, I will not issue a
certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that the motion of Christopher Russell to vacate, set aside
or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED.
IT IS FURTHER ORDERED that the motion for an evidentiary hearing is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a certificate of
appealability, as Russell has not made a substantial showing of the denial of a federal
constitutional right.

______________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 16th day of October, 2013.
-21-