Trammel v. United States of America

Filing 26

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that this action is DENIED in all respects. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. An Order of Dismissal will be filed separately. Signed by District Judge Henry Edward Autrey on 8/8/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EDWARD TRAMMEL,

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Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:13cv00813HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s motion to Vacate, Set Aside
or Correct Sentence [Doc. #1] pursuant to 28 U.S.C. § 2255. The United States
has responded to the motion. For the reasons set forth below the Motion will be
denied without hearing.
Facts and Background 1
On August 17, 2010, law enforcement officers received a phone call from
Petitioner’s neighbor stating that Petitioner had been videotaping Petitioner’s step-

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The facts are taken from the Presentence investigation report and the plea agreement filed in
this matter.

daughter, S.H., while she was showering. Officers responded to Petitioner's residence
located at 9908 Juniper Court. St. Louis.
When the officers arrived at the location they spoke with S.H. She informed that,
earlier in the day, she located a cell phone in the bathroom while she was taking a
shower. The cell phone was in video-record mode. As she examined the cell phone, she
observed another video from the previous day of her showering. S.H. left the house and
went to a neighbor's house, whereupon the police were called.
Officers seized a cell phone from Petitioner, which was identified by Victim S.H.
as the one she had found in the bathroom. The police officers viewed a video-recording
depicting Petitioner positioning the cell phone in the bathroom to capture images of the
shower and then, within ten seconds of Petitioner disappearing from the view of the
camera, victim S.H. entering the bathroom wearing a towel, removing the towel, and
entering the shower.
Petitioner was interviewed and after being advised of his constitutional rights
pursuant to Miranda v. Arizona, Petitioner admitted that he had video-recorded his stepdaughter with his cell phone while she was showering. He also acknowledged that he had
video-recorded his step- daughter on previous occasions while she was taking a shower.
He also stated that he masturbated to a prior video that he had taken of her in this manner.
The cell phone was forensically examined and the contents of the phone included
images of victim S.H. taking a shower, with those images depicting the lascivious display
of S.H.'s genitals. Petitioner admitted that he took the above-identified images of S.H. He
further admitted he utilized the AT&T Samsung Propel earlier described to produce the

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images. Petitioner further admitted that the AT&T Samsung Propel earlier described was
manufactured outside the State of Missouri.
S.H. was fourteen years old at the time Petitioner produced the above-described
images of the victim. During the time Petitioner produced the above-described images,
Petitioner was the step-father of S.H. and, therefore, was a "parent, relative, or legal
guardian of the minor involved in the offense" or S.H. was "otherwise in the custody,
care, or supervisory control of the defendant."

PROCEDURAL HISTORY
A federal grand jury sitting in St. Louis returned a two-count indictment against
Petitioner on June 2, 2011, charging him the production of child pornography in Count I
and the possession of child-pornography in Count II. Petitioner elected to enter a plea of
guilty on March 9, 2012, to Count I of the indictment, in exchange for the Government
dismissing Count II.
On July 9, 2012, Petitioner appeared before this Court for sentencing. A sentence
of 180 months incarceration, which was the mandatory minimum, was imposed.
Petitioner did not appeal his conviction or sentence to the Eighth Circuit Court of
Appeals.
On April 29, 2013, this Court received Petitioner’s § 2255 motion for postconviction relief. The motion was timely filed. For the reasons set forth below, however,
the request for post-conviction relief will be denied.

CLAIMS

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There are four claims for relief raised by Petitioner. First, he claims he is
actually innocent. Second, he claims he received ineffective assistance of counsel.
Third, he asserts prosecutorial misconduct. Fourth, he asserts “plain error.”
1. ACTUAL INNOCENCE
Petitioner asserts:
The Essential Elements of the charged crime were not present in this case.
The “Dost Factors” are the standard and they were not met. There was no
judicial finding of fact on this issue. The key Essential Elements of
“Lascivious Display” and “Focal Point” are clearly lacking.
Although a plea was entered, I was not given the information
needed to willfully and knowingly enter such plea, thus, it should
be set aside. As Attorneys, both Defense Counsel and Prosecutor,
as well as the Judge, should have prevented this miscarriage of
justice.
Petitioner’s § 2255 motion, p. 5.
On this claim Petitioner must show that in light of all the evidence, “it is
more likely than not that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt.” Jennings v. United States, 696 F.3d 759, 765 (8th Cir.
2012) (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)) (emphasis supplied).
“Actual innocence” means factual innocence, not mere legal insufficiency.
Jennings, 696 F.3d at 765. “The standard is strict; a party generally cannot
demonstrate actual innocence where there is sufficient evidence to support a
conviction.” Jennings, 428 F.3d at 783.

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Petitioner argues that the victim’s genitals were not seen on the recording.
However, Petitioner is entirely misguided on this assertion. The image depicted the
victim walking into the bathroom, removing a towel to reveal total nudity and then
entering the shower. Full frontal nudity was further revealed as she reached to pull
the shower curtain closed. When the shower was over, the victim opened the
shower curtain and full-frontal nudity was again visible on the recording as she
dried herself off with a towel and stepped out of the shower. Based upon this
image of the victim’s genitals, a federal grand jury found probable cause existed to
indict Petitioner based upon the fact that the video image at issue depicted the
lascivious display of the victim’s genitals.
In addition, the Plea Agreement signed by Petitioner contained his admission
to the statement of facts set out in the Plea Agreement. The facts specifically stated
that the image in question depicted the “lascivious display of the genitals.”
During the plea colloquy Petitioner, under oath, that the facts were true and
correct. Petitioner admitted that the video image depicted the lascivious display of
the genitals. There was only one image. Petitioner’s sworn statements before a
court “carry a strong degree of verity and pose a formidable barrier in any
subsequent collateral proceedings.” Nguyen v. United States, 114 F.3d 699, 703
(8th Cir. 1997).

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In determining whether images are “lascivious,” the Eighth Circuit has often
enumerated the Dost factors. United States v. Johnson, 639 F.3d 433, 439 (8th Cir.
2011). The Dost factors include: (1) whether the focal point of the picture is on the
minor’s genitals or pubic area; (2) whether the setting of the picture is sexually
suggestive; (3) whether the minor is depicted in unnatural poses or inappropriate
attire considering the minor’s age; (4) whether the minor is fully or partially
clothed or is nude; (5) whether the picture suggests sexual coyness or a willingness
to engage in sexual activity; and (6) whether the image is intended to elicit a sexual
response in the viewer. Id. at 439-40.
Petitioner fails to appreciate “[a]ll six Dost factors need not be present in
order to bring the depiction under the proscription of the statute.” Id. (quoting
United States v. Wallenfang, 568 F.3d 649, 657 (8th Cir. 2009)). The fact that a
minor child in an image is not acting in an obvious sexual manner, suggesting
coyness or a willingness to engage in sexual activity does not necessarily indicate
that the video itself was not intended to be lascivious. Johnson, 639 F.3d at 440.
The Court noted that “’lascivious exhibition’” need not necessarily be “the work
of the child, whose innocence is not in question, but of the producer or editor of the
video.” Horn, 187 F.3d at 790. Thus, even images of children acting innocently
can be considered lascivious if they are intended to be sexual. The Court also made
it clear that the fact that three of the Dost factors - a sexually suggestive setting,
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inappropriate attire or unnatural poses, and a suggestion of sexual coyness - were
not relevant to that case did not prevent the images from being lascivious. Id.
Here, the camera was set up I the victim’s bathroom and focused toward the
shower. Petitioner had previously recorded footage of the victim and admitted he
masturbated to those images of the victim in the shower area of the bathroom.
Petitioner’s successful attempt to videotape the victim in the privacy of a bathroom
as she took a shower would enable a jury to conclude that he was producing child
pornography. See United States v. Johnson, 639 F.3d 433 (8th Cir. 2011); United
States v Kemmerling, 285 F.3d 644 (8th Cir. 2002); United States v. Horn, 187
F.3d 781 (8th Cir. 1999). The actual innocence exception is not available to
Petitioner.
2. INEFFECTIVE ASSISTANCE OF COUNSEL
Standard
To succeed on an ineffective assistance of counsel claim, a movant must
show that counsel’s performance was deficient and that the deficient performance
prejudiced the movant’s case. Strickland v. Washington, 466 U.S. 668, 687 (1984);
United States v. Sera, 267 F.3d. 872, 874 (8th Cir. 2001); DeRoo, 233 F.3d. at 925.
An attorney’s performance is deficient if it falls “below an objective
standard of reasonableness.” Strickland, 466 U.S. at 687-88; Sera, 267 F.3d. at
874. There are two substantial impediments to making such a showing. First, there
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is a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” United States v. Rice, 449 F.3d. 887, 897 (8th
Cir. 2006) (quoting Strickland, 466 U.S. at 689); Sera, 267 F.3d. at 874; see also
Ford v. Lockhart, 905 F.2d. 458, 462 (8th Cir. 1990) (evaluation of a claim of
ineffective assistance of counsel is highly deferential with a strong presumption
that counsel acted competently). Second, “strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Rice, 449 F.3d at 897 (quoting Strickland, 466 U.S. at 690).
When reviewing counsel’s performance, a court must avoid using “the distorting
effects of hindsight” and must evaluate the reasonableness of counsel’s conduct
“from counsel’s perspective at the time.” Strickland, 466 U.S. at 689.
In addition to proving a deficiency in counsel’s performance, the movant
must also prove that “any deficiencies in counsel’s performance must be
prejudicial to the defense in order to constitute ineffective assistance under the
Constitution.” Strickland, 466 U.S. at 696. The burden is on the movant to prove,
by a preponderance of the evidence, that “there is 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; DeRoo, 233 F.3d at 925.

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A court need not even determine whether a movant meets the “performance”
prong of the Strickland test. “‘If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.’” Young v. Bowersox, 161 F.3d 1159, 1160 (8th Cir.
1998) (quoting Strickland, 466 U.S. at 697), cert. denied, 528 U.S. 880 (1998); see
also Kingsberry v. United States, 202 F.3d 1030, 1032 (8th Cir.) (if the petitioner
makes an insufficient showing on one component, the court need not address both
components), cert. denied, 531 U.S. 829 (2000).
Claims of Petitioner
Petitioner claims counsel was ineffective because counsel “did not research
the charges to discover if [Petitioner] was legally and properly charged nor
research the charge itself to verify the crime alleged was committed.” Counsel did
not provide constitutionally infirm representation by failing to research the charges
to discover if Petitioner was “legally and properly charged” and to “verify the
crime alleged was committed.” As noted earlier, the image, produced by Petitioner,
of his step-daughter depicted the lascivious display of her genitals. This was in
violation of Title 18 U.S.C. § 2251(a). The “prejudice” prong of the Strickland
analysis is not established by Petitioner.
Next Petitioner argues counsel was ineffective because counsel “did not
entertain nor prepare any defense strategy, simply claiming that if [Petitioner] went
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to trial the government would push for the maximum sentence, not taking into
account [Petitioner’s] lack of criminal history.” Petitioner does not set forth what
defense strategy counsel should have employed. Since there is no suggested
defense strategy Petitioner cannot establish prejudice. Petitioner cannot establish
that the outcome of his criminal proceedings would have been different had only
counsel employed a particular defense strategy. In the context of a guilty plea, in
order for Petitioner to establish prejudice, he must show that, had counsel
employed this unarticulated defense strategy, he would not have entered a guilty
plea but would have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52,
59 (1985) (In the context of a guilty plea, Movant needs to show that there was a
reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.).
Petitioner asserts that his counsel “did not adequately inform as to the crime
that [Petitioner] allegedly committed” and, as a result, was ineffective. The record
is replete with detailed explanations of the charge, including the plea agreement
and the inquiry of the Petitioner by this court. Petitioner cannot establish the
“prejudice” prong of the Strickland analysis. As stated by the Eighth Circuit “[i]f it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”
Young v. Bowersox, 161 F.3d at 1160 (8th Cir. 1998). During the plea proceedings,
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Petitioner never expressed confusion or a lack of understanding relative the
charges. On the contrary he expressed he fully understand the nature of the charges
and the offense to which he was entering a plea of guilty. The facts supporting the
crime were set out.
The Petitioner next complains counsel failed to inform him adequately about
the terms and conditions of the plea agreement. This court inquired of the
Petitioner, during the plea colloquy regarding his knowledge and understanding of
the plea agreement. The Government set forth the terms and conditions of the plea
agreement on the record. In each instance Petitioner stated he understood all of the
aspects of the plea agreement. He affirmed his understanding of the plea agreement
while under oath. In addition, he had the opportunity to inform the court at
sentencing as to whether there were any deficiencies in the plea agreement or his
understanding of any matters related to the plea agreement. He did not do so. The
claim is fatally flawed.
Petitioner also avers that counsel was ineffective in not adequately
informing him of the ramifications of his plea of guilty and in failing to explain the
Sentencing Guidelines to him. As with his other claims these fail as well. While
Petitioner was under oath at the plea hearing, the range of punishment was outlined
on the record which included a 15 year mandatory minimum sentence. This was
also set out in the plea agreement. Petitioner stated he understood the range of
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punishment and that it was reviewed with his attorney. It was also noted in the
guilty plea agreement that he stated was reviewed by him with his attorney.
The claim regarding the failure to explain the Sentencing Guidelines goes to
the “performance” prong inquiry which the court will not address since Petitioner
cannot meet the “prejudice” prong of the Strickland analysis. Cagle v. Norris, 474
.3d 1090, 1097 (8th Cir. 2007) (finding Movant failed to meet burden under
Strickland because even if counsel=s representation fell below an objective
standard of reasonableness, the representation did not result in prejudice). Trammel
stated under oath he read and reviewed the plea agreement; was advised on the
plea agreement; understood the plea agreement; understood the range of
punishment; and did not express any concerns, lack of understanding, or confusion
regarding any matter relating to his plea of guilty.
3. PROSECUTORIAL MISCONDUCT
On this issue Petitioner avers that:
The Law Enforcement and prosecution personnel knew [or] should have
known that my actions were not a violation of the Statute as charged, but
prosecuted me under them anyway.
The prosecution knew or should have known and disclosed potential
conflict with their personnel relative [to] the witnesses and involved parties.
The prosecution acted illegally in the seizure of items and not returning
uninvolved item in a timely manner as proscribed by law.
The probation office prepared a false and/or misleading Presentence Report
stating that the Defendant was guilty of the crime charged when, in fact,
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my actions did not meet the requirements of the “Dost Criteria”.
§ 2255 Motion, p. 8.
Much of what Petitioner alleges in this ground is a rehash of arguments
addressed earlier by the court. There is no support anywhere in the record for any
of the assertions set forth in this ground for relief. He has not delineated any
specifics regarding “conflicts”; he has failed to demonstrate in any regard how the
conduct was not a violation of the law; and he has likewise failed to provide any
basis for the Presentence Report being false or misleading in any manner.
4. PLAIN ERRO
In his last ground for relief, Trammel asserts that the Court did not review
the digital clip to independently ascertain in fact and law, it was a violation of the
statute charged and was therefore deficient to sustain a conviction pursuant to the
“Dost Criteria”. In asserting these arguments, Petitioner fails to recognize that the
“plain error” analysis does not apply here. He further asserts these were obvious
errors and these errors prejudiced his substantial rights. Petitioner also re-asserts
claims of ineffective assistance of counsel, which the court has already addressed
and found to be without support.
Conclusion

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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 Appealablity
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 this action is DENIED in all respects.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.

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An Order of Dismissal will be filed separately.
Dated this 8th day of August, 2016.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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