Kennedy v. USA

Filing 7

MEMORANDUM OF DECISION AND ORDER denying and dismissing with prejudice Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Martin Reidinger on 10/28/13. (Pro se litigant served by US Mail.) (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:13-cv-00076-MR
[Criminal Case No. 1:11-cr-00023-MR-1]

KIM EDEN KENNEDY,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
)
___________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1].
I.

BACKGROUND
Beginning in October 2010, detectives with the Buncombe County

Sheriff’s Office began investigating Petitioner Kim Eden Kennedy when
they discovered an online advertisement seeking a “Casual Encounter”
with a “young sexy girl or couple that is into role play . . . father daughter.”
[Criminal Case No. 1:11-cr-00023, Doc. 21 at 4: PSR].

Posing as the

father of a thirteen-year-old girl, an undercover detective began
corresponding with Petitioner in a series of online chats. [Id.]. During the
chats, Petitioner expressed interest in meeting the girl. [Id.]. Petitioner

also stated that he previously had sex with girls as young as sixteen that he
met online and that he had molested one of his friend’s ten-year-old
daughters while the girl was sleeping. [Id.].
During the online conversations, Petitioner asked for a picture of the
undercover detective’s daughter and asked whether the detective was
interested in making money by creating images of underage girls. [Id. at 5].
Petitioner subsequently agreed to meet with the daughter in a hotel on
November 23, 2010, but Petitioner did not show up at the scheduled time.
[Id.]. In a subsequent message, Petitioner stated that he had arrived at the
appointed location early and spotted police cars. [Id. at 5-6].
In late November 2010, officers searched Petitioner’s residence and
found a rifle, a handgun, and 489 rounds of ammunition. [Id. at 6]. A
forensic examination of Petitioner’s laptop revealed the chat logs between
the undercover detective and Petitioner, as well as dozens of pornographic
images and videos of young girls.

[Id. at 7].

Defendant was arrested

several days later on December 2, 2010. [Id. at 6].
On April 5, 2011, the Grand Jury for the Western District of North
Carolina charged Petitioner in a superseding bill of indictment with
possession of materials involving the sexual exploitation of minors, in
violation of 18 U.S.C. § 2252(a)(4)(B); possession of a firearm by a
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convicted felon, in violation of 18 U.S.C. § 922(g)(1); and coercion and
enticement of a minor, in violation of 18 U.S.C. § 2422(b). [Id., Doc. 6:
Superseding Indictment]. Petitioner entered into a plea agreement in which
he agreed to plead guilty to the count for coercion and enticement of a
minor and admitted that he was “in fact guilty as charged” in that count.
[Id., Doc. 15 at 1: Plea Agreement]. In exchange, the Government agreed
to dismiss the possession of child pornography and firearm counts. [Id. at
1]. In light of the Government’s concessions, Petitioner waived the right to
contest his conviction and sentence with the exception of claims of
ineffective assistance of counsel or prosecutorial misconduct. [Id. at 5].
On August 4, 2011, consistent with the terms of his plea agreement,
Petitioner pled guilty to the coercion charge in a plea hearing before United
States Magistrate Judge Dennis L. Howell. [Id., Doc. 16: Rule 11 Inquiry
and Order of Acceptance of Plea]. After placing Petitioner under oath, the
Magistrate Judge read the coercion count from the superseding bill of
indictment and advised Petitioner of the essential elements of that charge,
including the requirement that Petitioner acted knowingly, intentionally,
willfully, and unlawfully. [Id. at 3-4]. The Magistrate Judge also explained
that Petitioner had the right to plead not guilty, at which point the

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Government would be required to prove each element of the offense
beyond a reasonable doubt. [Id. at 4].
Petitioner acknowledged that he understood the elements and his
rights, and affirmed that he was in fact guilty, having “commit[ed] the acts
described in [the coercion count] of the superseding bill of indictment.” [Id.
at 7]. Petitioner confirmed that his plea was “voluntary and not the result of
coercion [or] threats.” [Id.]. Petitioner also agreed that he “had ample time
to discuss with [his] attorney any possible defenses that [he] may have to
the charges,” that he had “told [his] attorney everything that [he] want[ed]
[his] attorney to know about this case,” and that he was “entirely satisfied
with the services of [his] attorney.” [Id. at 8]. At the conclusion of the
hearing, the Magistrate Judge found Petitioner’s plea to be knowingly and
voluntarily made and therefore accepted his guilty plea. [Id. at 9].
In preparation for sentencing, the probation officer prepared a
presentence investigation report, noting that Petitioner faced a statutory,
mandatory minimum sentence of ten years in prison for his coercion and
enticement of a minor conviction. [Id., Doc. 21 at 15]. Petitioner filed a
handful of factual objections to the offense conduct and related offense
behavior, as well as to several of the narrative descriptions contained in the
criminal history. [Id. at 17-20]. None of Petitioner’s objections related to
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the essential elements or the potential sentence. On March 15, 2012, this
Court sentenced Petitioner to 120 months, the mandatory minimum
sentence under the statute. [Id., Doc. 24: Judgment]. This Court entered
judgment on March 22, 2012, and Petitioner did not appeal.

Petitioner

placed the instant motion to vacate in the prison mailing system on March
14, 2013. [Doc. 1-2].
II.

STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides

that courts are to promptly examine motions to vacate, along with “any
attached exhibits and the record of prior proceedings . . .” in order to
determine whether the petitioner is entitled to any relief on the claims set
forth therein. After examining the record in this matter, the Court finds that
the motion to vacate can be resolved without an evidentiary hearing based
on the record and governing case law. See Raines v. United States, 423
F.2d 526, 529 (4th Cir. 1970).
III.

DISCUSSION
A.

Petitioner’s Claim of Ineffective Assistance of Counsel.

The Sixth Amendment to the U.S. Constitution guarantees that in all
criminal prosecutions, the accused has the right to the assistance of
counsel for his defense. See U.S. Const. amend. VI. To show ineffective
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assistance of counsel, Petitioner must first establish a deficient
performance by counsel and, second, that the deficient performance
prejudiced him.

See Strickland v. Washington, 466 U.S. 668, 687-88

(1984). In making this determination, there is “a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689; see also United States v. Luck, 611 F.3d 183, 186
(4th Cir. 2010).
Furthermore, in considering the prejudice prong of the analysis, the
Court “can only grant relief under . . . Strickland if the ‘result of the
proceeding was fundamentally unfair or unreliable.’” Sexton v. French, 163
F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v. Fretwell, 506 U.S. 364,
369 (1993)). Under these circumstances, the petitioner “bears the burden
of affirmatively proving prejudice.” Bowie v. Branker, 512 F.3d 112, 120
(4th Cir. 2008). If the petitioner fails to meet this burden, a “reviewing court
need not even consider the performance prong.” United States v. Rhynes,
196 F.3d 207, 232 (4th Cir. 1999), opinion vacated on other grounds, 218
F.3d 310 (4th Cir. 2000). Finally, to demonstrate prejudice in the context of
a guilty plea, a petitioner must be show “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). In
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evaluating such a claim, statements made by a defendant under oath at the
plea hearing carry a “strong presumption of verity” and present a
“formidable barrier” to subsequent collateral attacks. Blackledge v. Allison,
431 U.S. 63, 73-74 (1977).

Indeed, “in the absence of extraordinary

circumstances, the truth of sworn statements made during a Rule 11
colloquy is conclusively established, and a district court should dismiss . . .
any § 2255 motion that necessarily relies on allegations that contradict the
sworn statements.” United States v. Lemaster, 403 F.3d 216, 221-22 (4th
Cir. 2005).
In support of his claim of ineffective assistance of counsel, Petitioner
does not allege that his guilty plea was unknowing or involuntary. Rather,
after listing a series of perceived deficiencies in defense counsel’s
investigation of the facts, Petitioner claims that “were it not for [defense
counsel’s] failure to provide effective assistance, [he] would have insisted
on going to trial and would not have pled guilty.” [Doc. 1 at 12]. This claim
is without merit. Petitioner was no doubt thoroughly familiar with the facts
underlying his conviction.

Moreover, at his Rule 11 hearing, Petitioner

affirmed that he understood the charge, that he had discussed potential
defenses with his attorney, and that he was, in fact, guilty of coercion and
enticement.

The steps that Petitioner believes defense counsel should
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have taken to review the facts of his case do not amount to the
“extraordinary

circumstances”

necessary

to

overcome

the

“strong

presumption of verity” that accompanied Petitioner’s sworn statements at
the Rule 11 hearing.

See Blackledge, 431 U.S. at 74.

Accordingly,

Petitioner’s ineffective assistance of counsel claim fails.
B.

Petitioner’s Claim of Actual Innocence.

Next, Petitioner contends that he is actually innocent of the charge of
coercion and enticement of a minor. The Fourth Circuit has emphasized
that “[c]laims of actual innocence . . . should not be granted casually.”
Wilson v. Greene, 155 F.3d 396, 404 (4th Cir. 1998). In fact, the Supreme
Court has highlighted the “narrow scope” of such a claim, explaining that a
claim of actual innocence must be based on new, reliable evidence.
Calderon v. Thompson, 523 U.S. 538, 559 (1998). Given the “demanding
standard,” a court may only grant relief “where a constitutional violation has
probably resulted in the conviction of one who is actually innocent.”
Wilson, 155 F.3d at 405.
In support of his actual innocence claim, Petitioner does not
challenge the Government’s proof as to any of the elements of coercion
and enticement of a minor. Instead, Petitioner merely provides his version
of events, attempting to offer an innocent explanation for his actions and
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the conversations with the undercover detective. For instance, Petitioner
states that he continued to communicate with the undercover detective
merely because he knew that he was talking to a police officer the whole
time.

Petitioner contends that he continued to communicate with the

undercover detective simply to catch him in his “lies” and that Petitioner
never intended to actually have sex with a minor. See [Doc. 1 at 22; 33].
Petitioner’s claim of actual innocence is without merit. During the
Rule 11 hearing, the Magistrate Judge advised Petitioner that he had the
right to plead not guilty and that the Government would have the burden of
proving his guilt beyond a reasonable doubt. With that knowledge and also
understanding the elements of the count of coercing and enticing a minor
— including the requirement that the Government prove that Petitioner
acted knowingly, willfully, intentionally, and unlawfully — Petitioner pled
guilty. Petitioner’s self-serving statements in his § 2255 petition do not
constitute new or reliable evidence of his innocence.

Accordingly,

Petitioner’s actual innocence claim also fails.
The Court finds that Petitioner has not made a substantial showing of
a denial of a constitutional right. See generally 28 U.S.C. § 2253(c)(2); see
also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy §
2253(c), a “petitioner must demonstrate that reasonable jurists would find
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the district court’s assessment of the constitutional claims debatable or
wrong”) (citing Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)). Petitioner
has failed to demonstrate both that this Court’s dispositive procedural
rulings are debatable, and that the Motion to Vacate states a debatable
claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S.
473, 484-85 (2000). As a result, the Court declines to issue a certificate of
appealability. See Rule 11(a), Rules Governing Section 2255 Proceedings
for the United States District Courts, 28 U.S.C. § 2255.
ORDER
IT IS, THEREFORE, ORDERED that Petitioner’s Section 2255
Motion to Vacate, Set Aside, or Correct Sentence [Doc. 1] is DENIED and
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Signed: October 28, 2013

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