Martin v. United States of America

Filing 5

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Movant=s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. ' 2255 (ECF No. 1) is DENIED, and his claims are DISMISSED with prejudice. An Order of Dismissal will accompany this M emorandum and Order. IT IS FURTHER ORDERED that because Movant cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. Signed by District Judge Jean C. Hamilton on 12/19/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MICHAEL PAUL MARTIN,

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Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

Case No. 4:11CV1141 JCH

MEMORANDUM AND ORDER
This matter is before the Court on pro se Movant Michael Paul Martin=s Motion under 28
U.S.C. ' 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed June
27, 2011. (ECF No. 1).
BACKGROUND
By way of background, on December 3, 2009, Movant was indicted on three counts of
Production of Child Pornography, in violation of 18 U.S.C. § 2251(a), one count of Possession of
Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), and one count of Receipt of Child
Pornography, in violation of 18 U.S.C. § 2252A(a)(2). On December 11, 2009, Assistant Federal
Public Defender Michael Dwyer entered his appearance on behalf of Movant. On December 28,
2009, Mr. Dwyer filed a notice of Movant’s intent not to file pretrial motions. Movant then appeared
with Mr. Dwyer before United States Magistrate Judge Mary Ann L. Medler on December 30, 2009,
and formally waived his right to file motions.
On January 21, 2010, attorney Frank Carlson entered his appearance on behalf of Movant.
On April 8, 2010, Movant pled guilty to all five counts of the indictment. Neither the Government

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nor Movant filed objections to the Presentence Investigation Report, and on July 27, 2010, the Court
sentenced Movant to a total of 120 years in prison. Movant did not appeal his conviction or sentence.
As stated above, Movant filed the instant ' 2255 Motion on June 27, 20111, alleging the
following two grounds for relief:
(1)

That Movant received ineffective assistance of counsel, in that Mr. Dwyer
failed to file a motion to suppress evidence; and

(2)

That Movant received ineffective assistance of counsel, in that Mr. Carlson
failed properly to argue the factors set forth in 18 U.S.C. § 3553(a) during
Movant’s sentencing proceeding.

(' 2255 Motion, PP. 4-7).
STANDARDS GOVERNING MOTIONS UNDER 28 U.S.C. ' 2255
Pursuant to 28 U.S.C. ' 2255, a federal prisoner may seek relief on the ground that Athe
sentence was imposed in violation of the Constitution or laws 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 based on
a federal statute or rule, rather than on a specific constitutional guarantee, can be raised Aon 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, 114 S.Ct. 2291, 129 L.Ed.2d
277 (1994) (citations omitted).2

1

AA 1-year period of limitation shall apply to a motion under [' 2255].@ 28 U.S.C. ' 2255.
AThe limitation period shall run from...(1) the date on which the judgment of conviction becomes
final.@ 28 U.S.C. ' 2255(1). As stated above, the Court entered its Judgment on July 27, 2010. The
present motion, filed June 27, 2011, thus is within the 1-year limitation period provided for in '
2255.
2

A[A]t least where mere statutory violations are at issue, >' 2255 was intended to mirror '
2254 in operative effect.=@ Reed, 512 U.S. at 353 (quoting Davis v. United States, 417 U.S. 333, 344
(1974)).
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The Court must hold an evidentiary hearing to consider claims in a ' 2255 motion A>[u]nless
the motion and the 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 A>when the facts alleged, if true, would entitle him 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 A>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 (citation omitted).
I.

Ground 1
As stated above, in Ground 1 of his ' 2255 Motion Movant asserts he received ineffective

assistance of counsel, in that Mr. Dwyer failed to file a motion to suppress evidence. (' 2255 Motion,
PP. 4-5). Specifically, Movant claims Mr. Dwyer should have moved to suppress the search warrant
affidavit in his case.

In order to prevail on a claim of ineffective assistance of counsel, Movant must show that his
attorney=s performance was Adeficient,@ and that the deficient performance was Aprejudicial.@
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel
is Astrongly presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.@ Id. at 690. To overcome this presumption, Movant
must prove that, Ain light of all the circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance.@ Id.
Even if Movant satisfies the performance component of the analysis, he is not entitled to
relief unless he can prove sufficient prejudice. Id. at 691. Movant must prove that Athere is a
reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding

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would have been different.@ Id. at 694. In the context of a guilty plea, to demonstrate prejudice the
Movant must show that, but for counsel=s error, he would not have pled guilty, but would have
insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
Upon consideration, the Court finds that with this claim Movant fails to demonstrate
deficient performance, as the record before the Court establishes Movant did not want his attorney to
file a motion to suppress evidence. The Magistrate Judge questioned Movant extensively regarding
his decision to waive pretrial motions, as follows:
THE COURT:

Now with regard to this issue of pretrial motions, have you had
plenty of time to talk to [Mr. Dwyer] about that?

DEFENDANT:

I believe so.

THE COURT:

Okay. And you know that there are all different kinds of motions that
can be filed. Did you talk to him about that, challenging the grand jury,
challenging the indictment. You don’t have any co-defendants here, but
there are all sorts of pretrial motions that can be filed. Do you
understand that?

DEFENDANT:

Yes.

THE COURT:

Okay. And did you talk all that over with Mr. Dwyer?

DEFENDANT:

I’m sure he’ll fill me in.

THE COURT:

Okay. And then there are also motions called motions to
suppress.

DEFENDANT:

Right.

THE COURT:

And those are the ones that have to do with the evidence that the
government wants to use.

DEFENDANT:

Right.

THE COURT:

The purpose of those motions is to ask the Court to suppress
some of their evidence and if it’s suppressed, then they can’t use
it at trial. Do you understand that?

DEFENDANT:

Correct.

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THE COURT:

All right. And then if those motions are filed you have the right
to have a hearing and [the] purpose of the hearing is for me to
hear their evidence and how they acquired it and then I make a
recommendation to Judge Hamilton, who’s your trial judge,
about whether or not that evidence should be used or not.

DEFENDANT:

Yes. Yes. He did go into detail about telling me about that.

THE COURT:

Okay. And Miss Costantin3 has already said that she decided not
to use some of the evidence that they have.

DEFENDANT:

Yes.

THE COURT:

Okay. And you talked that over with Mr. Dwyer as well?

DEFENDANT:

Yes.

THE COURT:

All right. And he’s filed the document and you filed this form
indicating that after the two of you talked it over you think it’s in
your best interest not to file pretrial motions. Is that right?

DEFENDANT:

That’s correct.

THE COURT:

Okay. Obviously, if there are no motions filed, there’s nothing
to have a hearing on, so we won’t have a hearing today.

DEFENDANT:

Okay.

THE COURT:

Right?

DEFENDANT:

Yes.

THE COURT:

Okay. Now that means that you are waiving or giving up your
right to have the motions filed and to have the hearing. Do you
understand that?

DEFENDANT:

Yes.

THE COURT:

Is that what you want to do?

DEFENDANT:

Yes.

THE COURT:

Okay. I want to make sure that you understand that this is a
now or never. If you tell me now you don’t want the motions
filed and you don’t want to have the hearing, you can’t change

3 Carrie

Costantin was the Assistant United States Attorney assigned to Movant=s case.
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your mind later on and decide that you do.
understand that?

Do you

DEFENDANT:

Right.

THE COURT:

All right. And you have had plenty of time to talk this over
with Mr. Dwyer?

DEFENDANT:

As far as I know, everything is—is in good hands.

THE COURT:

Okay. And anybody beat you up or threaten you in any way
to get you to do this?

DEFENDANT:

No.

THE COURT:

Did anybody promise you anything to get you to do this?

DEFENDANT:

No.

THE COURT:

All right. I will accept your waiver. I will find that they are
made intelligently, knowingly, and voluntarily.

(Waiver Hearing Transcript (4:09CR760 JCH, ECF No. 37), PP. 3-6).
The Eighth Circuit has held that, A>[s]olemn declarations in open court carry a strong presumption
of verity.=@ Smith v. Lockhart, 921 F.2d 154, 157 (8th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S.
63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977)). Upon consideration of the foregoing, this Court

finds Movant=s own testimony demonstrates that after ample time to consult with Mr. Dwyer,
Movant voluntarily waived his right to file any pretrial motions, including a motion to suppress the
search warrant affidavit. Under these circumstances, the Court finds Mr. Dwyer’s decision not to file
the motion fell well within the wide range of professionally competent assistance sanctioned by
Strickland, and so Ground 1 of Movant=s ' 2255 Motion must be denied.4
II.

Ground 2

4 In

light of the above ruling, the Court need not consider whether Movant established the
necessary prejudice under Strickland. The Court finds Movant failed to do so, however, as any
motion to suppress evidence would have been denied for the reasons set forth in the
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As stated above, in Ground 2 of his ' 2255 Motion Movant asserts he received ineffective
assistance of counsel, in that Mr. Carlson failed properly to argue the factors set forth in 18 U.S.C. §
3553(a) during Movant’s sentencing proceeding. (' 2255 Motion, PP. 5-7). Section 3553(a)
requires that in determining the particular sentence to be imposed the Court must consider, among
other things, the nature and circumstances of the offense and the history and characteristics of the
defendant; the need for the sentence imposed to reflect the seriousness of the offense, to promote
respect for the law, to provide just punishment for the offense, to afford adequate deterrence to
criminal conduct, and to protect the public from further crimes of the defendant; and the need to
avoid unwarranted sentence disparities among defendants with similar records.
Upon consideration the Court finds that with this claim, Movant fails to demonstrate the
requisite prejudice. In other words, Movant fails to establish that absent his counsel’s alleged error
the result of his proceeding would have been different, because the Court did consider the §3553(a)
factors in rendering Movant’s sentence. As always, the Court thoroughly reviewed the Presentence
Investigation Report prepared by the United States Probation Officer prior to imposing its sentence.
The Court further articulated its familiarity with the factors as applied to Movant’s case during the
sentencing hearing, as follows:
THE COURT:

In view of the advisory guidelines range and the provisions of
18 USC, Section 3553(a), based upon the serious nature of the
instant offense which involved production, possession and
receipt of child pornography involving three known victims
under the age of 12 and in consideration of the Defendant’s
lack of a criminal history, an aggregate sentence of 1,440
months’ imprisonment, which is the maximum sentence
available, to be followed by a lifetime term of supervised
release, would seem to address the sentencing objectives of
just punishment, general deterrence and incapacitation. The
maximum term of supervised release is ordered in view of the
nature of the instant offense and public safety concerns.

Government’s response.
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(Sentencing Hearing Transcript (4:09CR760 JCH, ECF No. 35), PP. 12-13).

Under these

circumstances Movant fails to demonstrate that the result of his proceeding would have been
different, had Mr. Carlson specifically argued the § 3553(a) factors. Ground 2 of Movant=s ' 2255
Motion will therefore be denied.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Movant=s Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. ' 2255 (ECF No. 1) is DENIED, and his claims are DISMISSED
with prejudice. An Order of Dismissal will accompany this Memorandum and Order.
IT IS FURTHER ORDERED that because Movant cannot make a substantial showing of
the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998).

Dated this 19th Day of December, 2013.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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