Fugitt v. United States of America

Filing 9

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. No. 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. Signed by District Judge Henry Edward Autrey on 4/1/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STEVEN FUGITT,
Movant,
vs.
UNITED STATES OF AMERICA,

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) Case No: 4:12CV1089 HEA
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Respondent.

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Steven Fugitt’s Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, [Doc. No. 1]. The United
States of America has responded to the motion, pursuant to the Court’s Case
Management Order. For the reasons set forth below, the Motion is denied.
PROCEDURAL HISTORY
A grand jury indicted Movant, charging him in a three count indictment with
one count possession of child pornography in violation of 18 U.S.C. §
2252A(a)(5)(a), one count of receipt of child pornography in violation of §
2252A(a)(2), and one cunt of transportation of child pornography in violation of §
2252A(a)(1).

On March 22, 2011, Movant entered a plea of guilty to the three counts. On
June 21, 2012, Movant was sentenced to 75 months imprisonment on each count to
run concurrently with each other.
Movant filed this Motion for Post-Conviction Relief pursuant to Title 28
U.S.C. Section 2255 on June 11, 2012.
CLAIM FOR RELIEF
Movant has raised the following grounds for post-conviction relief:
Ground One: The Movant received ineffective assistance of counsel based
on defense counsel’s failure to advise Movant that he would be exposed to the
possibility of civil commitment by entering a plea of guilty to the charges instead
of seeking alternative routes that would avoid those consequences.
Ground Two: The United States Attorney committed prosecutorial
misconduct, an act in bad faith for failing to submit a motion under Rule 48(a) to
dismiss the charges based on the Petite/Rinaldi Rule, formally located in the
United States Attorneys’ Manual 9-2.031 Policy.
Ground Three: Movant received ineffective assistance of counsel when
defense counsel failed to inform Movant of the civil consequences that would
attach to a plea to the type of charges involved, failed to raise the Petite/Rinaldi
Policy and failed to negotiate with the prosecutor by bringing up the prosecutorial
misconduct that was involved causing prejudice to Movant.
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STANDARD FOR RELIEF UNDER 28 U.S.C. 2255
A federal prisoner seeking relief from a sentence under 28 U.S.C. § 2255 on
the ground “that the 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, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255. In order to
obtain relief under § 2255, the movant must allege a violation constituting “‘a
fundamental defect which inherently results in a complete miscarriage of justice.’”
United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States
v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).
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)).
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DISCUSSION
Right to Evidentiary Hearing
The Court must hold an evidentiary hearing to consider claims in a § 2255
motion “‘[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) (alteration in original) (quoting 28 U.S.C. § 2255).
Thus, a movant is entitled to an evidentiary hearing “‘when the facts alleged, if
true, would entitle [the 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.
986)). 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 (citing Larson v. United States, 905
F.2d 218, 220-21 (8th Cir. 1990)). Since the Court finds that Movant’s claim 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.
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
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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 Afell below an objective standard of reasonableness.@
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also
establish prejudice by showing Athere is a reasonable probability that, but for
counsel=s unprofessional errors, the result of the proceeding would have been
different. Id., at 694.
Both parts of the Strickland test must be met in order for an ineffective
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 Ashowing 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 Ahighly deferential,@ and the Court presumes
Acounsel=s conduct falls within the wide range of reasonable professional
assistance.@ Id. The court does not Asecond-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. LedezmaRodriguez, 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
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deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to
Aeliminate 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 Athat >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). AA reasonable probability is a probability sufficient to undermine confidence
in the outcome.@ Strickland, 466 U.S. at 694. When determining if prejudice
exists, the court Amust 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
Athere 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.
Ground One: The Movant received ineffective assistance of counsel based
on defense counsel’s failure to advise Movant that he would be exposed to the
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possibility of civil commitment by entering a plea of guilty to the charges instead
of seeking alternative routes that would avoid those consequences.
Movant argues that counsel failed to advise him of the consequences of his
plea that he might be civilly committed, be categorized as a career offender, and be
faced with civil liability as a result of entering his plea.
Courts have held that the risk of civil commitment is a collateral
consequence of a plea, not a direct consequence. George v. Black, 732 F.2d 108,
111 (8th Cir.1984). The distinction between collateral and direct consequences of a
guilty plea, lies in whether the result definitely, immediately, and largely
automatically affects the range of defendant's punishment. George, 732 F.2d at 110
(citing Cuthrell v. Dir., Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir.1973)).
Civil commitment is a possible consequence of a guilty plea to sexual abuse, but it
is not mandatory and not a certainty that Movant will be committed.
The commitment laws are civil laws, not criminal statutes, and accordingly,
Movant would go through a separate civil process before any consequences would
attach. As a result, the court is not required to inform the defendant of that risk.
Brady v. United States, 397 U.S. 742, 755 (1970); George, 732 F.2d at 110.
Under controlling precedents, the trial court need only inform a defendant of the
direct consequences of a guilty plea, not collateral ones. Brady, 397 U.S. at 755;
George, 732 F.2d at 110; United States v. Lambros, 544 F.2d 962, 966 (8th
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Cir.1976). Civil commitment does not definitely, immediately, and largely
automatically follow Movant's guilty plea; in fact, there is no certainty that such
commitment will ever occur. Maxwell v. Larkins, No. 4:08 CV 1896 DDN, 2010
WL 2680333, at *5-6 (E.D. Mo. July 1, 2010); See also, Carter v. Larkins, No.
4:07 CV 1581 CDP, 2009 WL 3068094, at * *8–11 (E.D.Mo. Sept. 25, 2009);
Klaus v. Luebbers, No. 4:06 CV 177 AGF, 2009 WL 367697 at * *3–5 (E.D.Mo.
Feb. 11, 2009).
As the Government argues, Movant’s reliance on Padilla v. Kentucky, 130
S.Ct. 1473 (2010) is misplaced. In Padilla, the defendant was subject to automatic
deportation; in this case, civil commitment is not an automatic result of a guilty
plea. The two issues are by no means parallel and as different as night and day.
Additionally, Movant argues that counsel was ineffective because counsel
did not advise Movant that he faced the probability of career status. Movant had
no prior convictions at the time of his plea. Counsel cannot be said to be
ineffective for failing to raise the speculation that if Movant committed other
offenses in the future, he may be classified as a career offender.
Like civil commitment, civil liability is not an automatic consequence of a
guilty plea. Notwithstanding, Movant acknowledged in the Plea Agreement that
the Government may take civil action against him. He also agreed to pay
restitution to all victims and to forfeit property seized by law enforcement officials
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during their investigation. Movant therefore, cannot satisfy the prejudice prong of
Strickland. Ground one is denied.
Grounds Two and Three: The United States Attorney committed
prosecutorial misconduct, an act in bad faith for failing to submit a motion under
Rule 48(a) to dismiss the charges based on the Petite/Rinaldi Rule, formally
located in the United States Attorneys’ Manual 9-2.031 Policy.
Movant received ineffective assistance of counsel when defense counsel failed
to inform Movant of the civil consequences that would attach to a plea to the type
of charges involved, failed to raise the Petite/Rinaldi Policy and failed to negotiate
with the prosecutor by bringing up the prosecutorial misconduct that was involved
causing prejudice to Movant.
“The Petite policy is a discretionary policy of the Department of Justice. It
does not confer any substantive rights and its application cannot form the basis for
a claim of improper prosecution. See Kriens, 270 F.3d at 603; United States v.
Lester, 992 F.2d 174, 176 (8th Cir.1993).” United States v. Leathers, 354 F.3d
955, 962 (8th Cir. 2004).
Movant’s reliance on Rinaldi v. United States, 434 U.S. 22 (1977) is entirely
misplaced. Rinaldi involved a motion by the Government to dismiss based on the
policy.
[W]e consider whether the internal Petite policy of the Department of Justice
grants substantive rights to criminal defendants. This court has previously
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decided that “the Petite policy does not confer any substantive rights on a
criminal defendant.” United States v. Simpkins, 953 F.2d 443, 445 (8th
Cir.1992); see United States v. Bartlett, 856 F.2d 1071, 1075 (8th Cir.1988).
In Simpkins the defendant was convicted of drug-related offenses in federal
district court after he had already been tried and convicted in state court for
the same offense. This Court held that the Petite policy “does not confer any
substantive rights on a criminal defendant” and cannot form the basis of a
claim that the prosecution was improper. 953 F.2d at 445.
Appellee cites two cases to support his view that the Petite policy does grant
substantive rights, Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54
L.Ed.2d 207 (1977), and Thompson v. United States, 444 U.S. 248, 100 S.Ct.
512, 62 L.Ed.2d 457 (1980). In both Rinaldi and Thompson, however, the
indictments against defendants were dismissed because of violations of the
Petite policy were government motions. Appellee asserts the basis of these
decisions was fairness, and the Petite policy should be strictly and
mandatorily applied. “It (the Petite policy) also serves the more important
purpose of protecting the citizen from any unfairness that is associated with
excessive prosecutions based on the same conduct.” Rinaldi, 434 U.S. at 27,
98 S.Ct. at 84. We disagree.
The cases appellee cites are distinguishable from the present case. In both
Rinaldi and Thompson, the government sought to dismiss the indictment
because the Justice Department did not follow its own guidelines and were
appealed because the district court in each case denied the government's
motion to dismiss. Neither case involved a criminal defendant seeking to
enforce the Petite policy.
United States v. Lester, 992 F.2d 174, 176-77 (8th Cir. 1993). Grounds Two and
Three are denied.
Movant also argues in his Traverse that counsel was ineffective for failing to
advise him that he would be subject to sex offender registration. Movant cannot
satisfy the prejudice prong of the Strickland standard because he was fully apprised
of this requirement in the Plea Agreement. Tellingly, Movant admitted during
sentencing that he had reviewed the Plea Agreement in its entirety with counsel
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before signing it. Furthermore, the Court advised Movant of the requirement as
well. This claim is entirely baseless and will be denied.
CONCLUSION
Based upon the foregoing analysis, Movant has failed to establish he is
entitled to a hearing and has failed to present any basis upon which the Court may
grant relief.
CERTIFICATE OF APPEALABILITY
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
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. No. 1], is DENIED.

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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 31st day of March, 2016.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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