Running v. USA

Filing 20

OPINION AND ORDER denying in part Motion Under 28 U.S.C. § 2255 and ORDERING the Parties to Supplement the Record. Signed by U.S. District Judge Roberto A. Lange on 1/23/2015. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION

PHILLIP C. RUNNING,

FILED
JAN 23 2015

~~

3: 13-CV-03007-RAL

Plaintiff,

vs.
UNITED STATES OF AMERICA,

OPINION AND ORDER DENYING IN

PART MOTION UNDER 28 U.S.C. § 2255

AND ORDERING THE PARTIES TO

SUPPLEMENT THE RECORD

Defendant.
Phillip Running, a federal inmate serving a 120-month sentence for producing child
pornography, United States v. Running, 10-CR-30067-RAL, Doc. 39, I has filed a motion under
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, Running v. United States, 13-CV­
3007-RAL, Doc. 1. 2 The Government opposes Running's motion, arguing that he is not entitled
to relief on any of his claims. CIV Doc. 18. For the reasons explained below, Running's motion
is denied in part, counsel will be appointed for Running, and the parties are ordered to
supplement the record.
I.

Background

Running first appeared in federal court in early 2009, when he was charged with
aggravated sexual abuse of a child. United States v. Running, 09-CR-30026-RAL, Doc. 1. 3
While that case was pending, the Government learned of an unrelated allegation that Running,
lCitations to Running's criminal case hereafter will be "CR Doc." followed by the document

number from the Case Management/Electronic Case Filing (CMlECF) system.

2Citations to pleadings from the present case, 13-CV-3007-RAL, in which this Opinion and

Order is being entered will be "CIV Doc." followed by the CMlECF document number.

3Citations to Running's 2009 criminal case hereafter will be "2009 CR Doc." followed by the

CMlECF document number.

back in 2001 or 2002 when he was approximately fourteen years old, had made a videotape of
his younger siblings with their genitals exposed. CIV Doc. 16 at 2; CR Doc. 49 at 49-50; 2009
CR Doc. 84 at 1. As part of a plea deal, the Government offered to forgo charging Running for
the videotape if he agreed to plead guilty in the sexual abuse case. CIV Doc. 16 at 2; CR Doc.
49 at 49-50. Running rejected the offer, proceeded to trial, and was found not guilty. CIV Doc.
16 at 2. Thereafter, on August 17,2010, a grand jury charged Running with two counts of
producing child pornography in connection with the videotape. CR Doc. 1. The indictment
alleged that Running committed the offenses between on or about June 1, 2001 and May 21,
2002. CR Doc. 1.
Running's trial was short, lasting only one day. CR Doc. 46. The evidence established
that from July 1996 until March 2002, Running and his younger siblings lived in South Dakota
with their foster parents Susan and Dell Neumeister. CR Doc. 46 at 49-50. The Neumeisters
discovered the videotape in question in May 2002, when their daughter placed what she thought
was a children's movie in the VCR. CR Doc. 46 at 40-51. The videotape showed Running's
nine-year-old sister R.N. and six-year-old brother B.N. with their genitals exposed. CR Doc. 46
at 67-68. A voice could be heard on the videotape telling the children to pose in sexually
suggestive ways. CR Doc. 46 at 68. Susan Neumeister testified at trial that she recognized the
voice on the videotape as Phillip's. CR Doc. 46 at 54. The jury also heard from Tim Huyck, a
counselor who had worked with Running. CR Doc. 46 at 63. Huyck testified that Running had
confessed to making the videotape of his siblings. CR Doc. 46 at 64. The Government rested
after presenting testimony from three witnesses and playing the videotape.

CR Doc. 46 at 65.

Running moved unsuccessfully for a judgment of acquittal and did not offer any witnesses or
evidence. CR Doc. 46 at 66-69. The jury convicted Running of both counts, CR Doc. 28, and

2

this Court sentenced Running to two concurrent terms of 120 months' imprisonment, CR Doc.
39. The ten-year mandatory minimum that applied to Running's conviction made this the lowest
sentence possible. 18 U.S.C. § 2251 (2000).
Running appealed his conviction to the United States Court of Appeals for the Eighth
Circuit. United States v. Running, 431 F. App'x 520 (8th Cir. 2011) (per curiam) (unpublished).
His counsel filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that this Court
lacked jurisdiction because Running was a juvenile at the time of the offenses but was not
prosecuted until he was an adult. Running, 431 F. App'x at 520. The Eighth Circuit reviewed
the record under Penson v. Ohio, 488 U.S. 75 (1988), concluded that there were "no nonfrivolous
issues for appeal," and affirmed Running's conviction. Running, 431 F. App'x at 521. Running
petitioned the Supreme Court of the United States for a writ of certiorari, which was denied on
April 2, 2012. Running v. United States, 132 S. Ct 1859 (2012) (mem.).
On February 12, 2013, Running filed his § 2255 petition asserting the following grounds
for relief: (1) his speedy trial rights were violated; (2) his counsel was ineffective; (3) the
Government used a coerced confession to convict him; and (4) his sentence violated the Eighth
Amendment To allow the Government to respond to Running's petition, this Court ordered that
Running choose between waiving his attorney-client privilege or having his ineffective­
assistance claim stricken. CIV Doc. 12. Running chose to waive the attorney-client privilege,
CIV Doc. 13, after which the Government filed an affidavit from Running's prior counsel Jana
Miner, who is the Senior Litigator for the Federal Public Defender's Office for North and South
Dakota and who was Running's attorney in both his 2009 and 2010 cases, CIV Doc. 16.
It is not entirely clear whether Running meant for Grounds One, Three, and Four of his

petition to be free-standing claims or merely a continuation of his ineffective-assistance-of­

3

counsel claim in Ground Two. For instance, although Ground Three is captioned "Conviction
Obtained by use of Coerced Confession," Running argues within this ground that Miner failed to
adequately investigate his case. CIV Doc. 1 at 6. Giving Running the benefit of the doubt, this
Court will analyze Grounds One, Three, and Four as both independent claims for relief and as
claims that Miner provided ineffective assistance of counsel.

II.

Analysis
A.

Grounds One, Three, and Four as Independent Claims for Relief

The Government argues that Grounds One, Three, and Four of Running's petition must
be dismissed because they are procedurally defaulted. Claims not raised on direct appeal are
procedurally defaulted and may not be asserted in a habeas petition unless the petitioner can
demonstrate "cause and actual prejudice" or "that he is actually innocent."

Bousley v. United

States, 523 U.S. 614, 622 (1998) (internal quotation marks and citations omitted); United States
v. Collier, 585 F.3d 1093, 1097 (8th Cir. 2009). When Running appealed to the Eighth Circuit,
he failed to raise any of the claims he now raises in Grounds One, Three, and Four of his
petition. Because Running does not claim actual innocence, he must demonstrate both cause for
failing to raise these claims on direct appeal and actual prejudice therefrom. Charboneau v.
United States, 702 F.3d 1132, 1136 (8th Cir. 2013).
Running has failed to make this showing. Although ineffective assistance of appellate
counsel may excuse a procedural default, Becht v. United States, 403 F.3d 541, 545 (8th Cir.
2005), Running does not argue that Miner provided ineffective assistance by failing to raise
Grounds One, Three, and Four on direct appeal. Rather, he contends that these claims were not
previously presented because he "was not aware" of Miner's "trial strategy" and because he is
not "educated in criminal law defenses." CIV Doc. 1 at 8. But ignorance of the law does not

4

excuse a procedural default.

Hall v. United States, 41 F. App'x 743, 744 (6th Cir. 2002);

Rodriguez v. Maynard, 948 F.2d 684, 688 (lOth Cir. 1991); Smittie v. Lockhart, 843 F.2d 295,
298 (8th Cir. 1988). Running has not explained how being better aware of Miner's trial strategy
would have enabled him to avoid a procedural default. Running was fully aware of Miner's trial
strategy by the time he filed his direct appeal. Because Running has not demonstrated cause for
failing to raise the claims in Grounds One, Three, and Four on direct appeal, these grounds are
dismissed to the extent that they are independent claims for relief.

B.

Ineffective Assistance of Counsel

Running's ineffective-assistance-of-counsel claims are governed by the test articulated in
Strickland v. Washington, 466 U.S. 668 (l984). United States v. Apfel, 97 F.3d 1074, 1076 (8th
Cir. 1996). An ineffective-assistance claim has two elements: Running must show both that his
counsel's perfonnance was constitutionally deficient and that he was prejudiced by this
deficiency. Strickland, 466 U.S. at 687.
To demonstrate deficient perfonnance, Running must show that "counsel's representation
fell below an objective standard of reasonableness."

Id. at 688.

This standard is "highly

deferential," and courts "must indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance." Id. at 689. Running has the burden of
demonstrating that "counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687.
To establish prejudice, Running must demonstrate a "reasonable probability" that, but for
his attorney's deficient perfonnance, the outcome of his trial would have been different. Id. at
694.

"A reasonable probability is a probability sufficient to undennine confidence in the

outcome." Id. When, as here, a petitioner makes multiple claims of ineffective assistance of

5

counsel, each claim must be independently examined to detennine if there is prejudice, rather
than taking the matters collectively. See Hall v. Luebbers, 296 F.3d 685, 692-93 (8th Cir. 2002).
That is, the Eighth Circuit has "repeatedly rejected the cumulative error theory of post-conviction
relief." United States v. Brown, 528 F.3d 1030, 1034 (8th Cir. 2008).

1.

Ground One

Running alleges that his right to a speedy trial was violated because although the
Walworth County Police Department and the South Dakota Department of Social Services
"accused" him of making the videotape in 2002, he was not indicted until 2010. CIV Doc. 1 at
4. The Sixth Amendment's Speedy-Trial Clause states that "[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public triaL" U.S. Const. amend. VI. Contrary to
Running's suggestion, a person is not "accused" within the meaning of the Sixth Amendment
simply because authorities become aware of that person's criminal activity. Rather, it takes
"either a fonnal indictment or infonnation or . . . the actual restraints imposed by arrest and
holding to answer a criminal charge" before the Sixth Amendment right to a speedy trial
attaches. United States v. Marion, 404 U.S. 307, 320 (1971).
Here, Running's Sixth Amendment right to a speedy trial did not attach until August 17,
2010, when the Government indicted him for producing child pornography. Thus, any delay
before the indictment did not violate Running's Sixth Amendment rights. Neither Running's
allegations that the State of South Dakota placed him in a secure group home for making the
videotape nor his being in custody for the sexual abuse charge on August 17, 2010, alter this
conclusion. See United v. MacDonald, 456 U.S. 1, 10 n.ll (1982) ("Of course, an arrest or
indictment by one sovereign would not cause the speedy trial guarantees to become engaged as
to possible subsequent indictments by another sovereign."); United States v. Gamer, 32 F.3d

6

1305, 1309 (8th Cir. 1994) ("[I]t is settled law that an arrest on one charge does not trigger the
right to a speedy trial on another charge filed after the arrest.") (alteration in original) (quoting
United States v. Beede, 974 F.2d 948, 950 (8th Cir. 1992». Because Running's speedy trial
argument lacks merit, Miner was not deficient for failing to raise it.

2.

Ground Two

Running contends that Miner provided ineffective assistance of counsel by failing to
establish a defense or contest the indictment in opening and closing arguments. CIV Doc. 1 at 5.
The record does not support this claim.

Miner used her opening statement to point out

weaknesses in the Government's case and to explain why the evidence would fall short of
establishing all of the elements in the indictment. CR Doc. 46 at 33-35. She stressed that the
videotape did not show Running touching his siblings or forcing them to engage in sexual
conduct and that there was no evidence that Running had ever viewed the tape for sexual
purposes. CR Doc. 46 at 34.
Miner attacked certain elements of the indictment more directly in closing argument. To
convict Running of producing child pornography, the Government had to prove that the
videotape depicted minors engaged in sexually explicit conduct. 18 U.S.C. § 22SI(a); CR Doc.
30 at 7-9. As relevant here, the jury instructions defined "sexually explicit conduct," as:
the lascivious exhibition of the genitals or pubic area of any
person. A depiction of a child is a "lascivious exhibition of the
genitals" when the child is nude or partially clothed, when the
focus of the depiction is the child's genitals or pubic area, and
when the image is intended to elicit a sexual response in the
viewer.
CR Doc. 30 at 9.

Miner argued that Running did not treat the videotape as though it depicted

this sort of sexually explicit conduct. After all, Miner noted, the videotape was found in the
Neumeisters' movie collection rather than in Running's room, there was no evidence that
7

Running had viewed the videotape to arouse himself, and Running never destroyed or hid the
videotape despite moving out of the Neumeister home. CR Doc. 46 at 100-03. Miner also
focused on Running's age at the time the videotape was made, urging the jury to consider
whether a fourteen year old could have the intent to produce child pornography. CR Doc. 46 at
101-02. Given the evidence that Running produced the videotape, Miner had few options for
defending Running. She identified the options that were available and pursued them zealously
during her opening statement and closing argument. Her performance during these phases of the
trial was well within the purview of effective assistance.
Running argues further in Ground Two that Miner was ineffective because she did not
offer any evidence or witnesses at trial. CIV Doc. 1 at 5. Miner explained in her affidavit that
there were very few witnesses for her to call and that she advised Running not to testify because
doing so would allow the jury to match his voice to the voice on the videotape. CIV Doc. 16 at
3. Running has not identified what evidence Miner neglected to offer, whom Miner should have
called as witnesses, and how any such witnesses would have testified. Thus, Running's claim
that Miner failed to offer evidence or witnesses is too vague to establish that Miner's
performance was deficient or prejudiciaL Saunders v. United States, 236 F.3d 950, 952-53 (8th
Cir. 2001) (rejecting petitioner'S ineffective assistance claim where petitioner alleged that
counsel failed to call witnesses but did not identify the witnesses or explain how they would have
testified).
Running's final argument in Ground Two suffers from a similar lack of specificity.
Running asserts that Miner's cross-examination of witnesses was ineffective because she neither
attacked the Government's case nor explored whether certain witnesses were biased. CIV Doc. 1
at 5. However, Running provides no elaboration or explanation of what questions Miner should

8

have asked and which witnesses were allegedly biased. Running in short failed to provide
information to analyze whether Miner's performance on cross-examination was deficient or
prejudicial. Saunders, 236 F.3d at 952-53. In reality, the trial transcript shows that Miner cross­
examined the Government's witnesses in an objectively reasonable manner with an eye towards
building Running's defense. CR Doc. 46 at 43-65.
3.

Ground Three

Ground Three of Running's petition focuses on Huyck's testimony that Running
confessed to making the videotape. Running alleges that after discovery of the videotape, he was
placed in a "secure group home" where his release depended upon taking accountability for his
actions and making a confession. CIV Doc. 1 at 6. He alleges that these conditions "coerced"
him into confessing in violation of the Fifth Amendment and that Miner failed to investigate this
aspect of his case. CIV Doc. 1 at 6. A review of the record shows that two factual issues must
be clarified before this Court can proceed with Running's ineffective-assistance-of-counsel claim
in Ground Three. To resolve these issues, this Court will appoint Running an attorney and allow
both parties to supplement the record with additional facts.
The first factual issue relates to whether Miner's performance was deficient under
Strickland. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. The
reasonableness of an attorney's investigation "depends critically" on the information furnished
by the defendant. Id.; see also Koons v. United States, 639 F.3d 348, 352-54 (7th Cir. 2011)
(rejecting petitioner's claims that counsel was ineffective for failing to investigate and failing to
file a motion to suppress because petitioner never informed counsel of the facts giving rise to the
alleged Fourth Amendment violation); Cox v. Wyrick, 642 F.2d 222, 226 (8th Cir. 1981)

9

(declining to find ineffective assistance of counsel where there was "no evidence that the
defendant gave counsel infonnation which would have led him reasonably to conclude that
further investigation was necessary").

Miner was aware of the existence of Running's

confession, but it is unclear what Running told Miner about the confession and in tum what
Miner knew about the circumstances surrounding the confession. Running asserts that Miner's
investigation was inadequate, but it is unclear what Miner's knowledge and investigation was
concerning Running's confession. CIV Doc. 1 at 6. Miner's affidavit stated that she did not
have a "sufficient legal basis to file a motion to suppress" Running's confession, but the affidavit
does not explain why she lacked such a basis, what investigation she conducted to arrive at this
conclusion, and whether Running ever told her that his confession had been coerced. CIV Doc.
16 at 3. Not knowing the answers to these questions makes it difficult to detennine whether
Miner's investigation of Running's confession was reasonable.
The second factual issue that needs to be clarified is what relationship exists between the
State of South Dakota and the employees of the group home. Because an attorney's failure to
pursue a frivolous issue is neither objectively unreasonable nor prejudicial, Harrington v. United
States, 689 F.3d 124, 130 (2d Cir. 2012); United States v. Carter, 355 F.3d 920, 924 (6th Cir.
2004), Running must show that his claim that the group-home employees coerced his confession
has merit The merit of this claim hinges at least in part on whether the State played a role in the
group-home employees' coercion of Running. See Colorado v. Connelly, 479 U.S. 157, 170
(1986) ("The sole concern of the Fifth Amendment ... is governmental coercion."); see also id.
at 166 ("The most outrageous behavior by a private party seeking to secure evidence against a
defendant does not make that evidence inadmissible under the Due Process Clause.").
Specifically, there must be a "link between coercive activity of the State, on the one hand, and

10

[the] resulting confession by [Running], on the other." Id. at 165. Although Running seems to
allege that the State placed him in the group home, he does not allege that the State had a close
relationship with the group home nor explain how the State was involved in obtaining his
confession.
Cases considering whether the Fifth Amendment applies to individuals other than law
enforcement officers illustrate why such infonnation is important. See United States v. Sanchez,
614 F.3d 876, 886 (8th Cir. 2010); United States v. D.F. CD.F. 1),63 F.3d 671, 683-84 (7th Cir.
1995), vacated on other grounds, 517 U.S. 1231 (1996); United States v. D.F. CD.F. II), 115 F.3d
413, 420 (7th Cir. 1997). In D.F. II, for example, the Seventh Circuit considered whether the
questioning of a minor by employees at a government mental health center was subject to the
constraints of the Fifth Amendment. 115 F.3d at 419-21. For the Fifth Amendment to apply,
the Seventh Circuit explained, an interrogation "must be at the hands of a government actor
whose questioning is of a nature that reasonably contemplates criminal prosecution." Id. at 420.
That is, "the state actor's questioning of the defendant must have as one of its purposes,
definitive or contingent, the use of the statement in a criminal prosecution." D.F. I, 63 F.3d at
684 (footnote omitted). Because the medical health center employees had a close relationship
with law enforcement officials and viewed the prosecution of the defendant as part of their job,
the Seventh Circuit held that the Fifth Amendment applied to the employees' interrogation of the
defendant. D.F. II, 115 F.3d at 420. In contrast, the Eighth Circuit in Sanchez concluded that
the Fifth Amendment was inapplicable to a mother's questioning of her minor son during an
interview with police. 614 F.3d at 886. The Eighth Circuit explained that the Fifth Amendment
only applies to the actions of a private individual like the mother when "the government
exercised such coercive power or such significant encouragement that it is responsible for [the

11

private individual's] conduct, or ... the exercised powers are the exclusive prerogative of the
government." Id. (first alteration in original) (quoting United States v. Garlock, 19 F.3d 441,
442 (8th Cir. 1994)).
If the Fifth Amendment applies to the actions of the group-horne employees, Running's
claim that the employees coerced him into confessing may have merit. See D.F. II, 115 F.3d at
421 (finding that juvenile defendant's confession to mental health center employees was
involuntary where employees fostered defendant's trust and employed multiple "encouragement"
techniques to convince defendant to confess to her crimes). Determining whether Running was
coerced, however, would require testimony at an evidentiary hearing. The two issues discussed
previously--(l) whether Running informed Miner of the circumstances surrounding his
allegedly coerced confession, whether she investigated those circumstances, and what she
learned; and (2) whether the State played a role in the group-horne employees' alleged coercion
of Running such that the Fifth Amendment applies to the employees' actions-are ones that
might be outcome dispositive and capable of resolution by way of affidavit or other written
documentation. If necessary and after considering any additional affidavits or written material,
this Court will conduct an evidentiary hearing to resolve any factual disputes. See Bruce v.
United States, 256 F.3d 592,596-99 (7th Cir. 2001) (describing proceedings in which the district
court instructed a pro se petitioner to supplement his motion with additional facts before
determining whether the threshold standard for an evidentiary hearing had been satisfied); Chang
v. United States, 250 F.3d 79, 86 (2d Cir. 2001) ("[T]he district court may use methods under
Section 2255 to expand the record without conducting a full-blown testimonial hearing.,,).4

4This Court reserves ruling on whether the outcome of Running's trial would have been the same
without Huyck's testimony that Running confessed to making the videotape. Even without
Huyck's testimony, the Government still had Susan Neumeister's testimony that it was
12

4.

Ground Four

Running argues in Ground Four of his petition that the unique circumstances surrounding
his conviction render his sentence violative of the Eighth Amendment's prohibition of cruel and
unusual punishment. CIV Doc. 1 at 7. Running contends that because he was a juvenile when
he made the videotape, he is less culpable than an adult and therefore less deserving of
punishment. CIV Doc. 1 at 7. A sentence is considered cruel and unusual under the Eighth
Amendment when it is disproportionate to the crime of conviction. Graham v.

Florid~

560 U.S.

48,59 (2010). The Supreme Court's proportionality cases fall into two classifications. Id. "The
first involves challenges to the length of term-of-years sentences given all the circumstances in a
particular case."

Id.

The second classification involves categorical restrictions on certain

sentences based on an imbalance between the severity of a punishment and the culpability of a
class of offenders. [d. at 60-61.
Historically, the categorical approach was only applied in death penalty cases. So, for
instance, the Supreme Court adopted categorical rules prohibiting the death penalty for nonhomicide crimes, Kennedy v. Louisiana, 554 U.S. 407, 421 (2008), and for offenders with low
intellectual functioning, Atkins v. Virginia, 536 U.S. 304, 321 (2002). Likewise, the Supreme
Court categorically prohibited the death penalty for juvenile offenders after concluding that
juveniles are less culpable than adults and therefore less deserving of the most severe
punishment. Roper v. Simmons, 543 U.S. 551, 568-75 (2005).

Running's voice on the videotape telling the children what to do. Moreover, the thrust of
Miner's defense at trial was that the videotape did not depict minors engaged in sexually explicit
conduct; there was very little argument that someone other than Running made the videotape.
CR Doc. 46 at 66-67, 98-103. Yet Miner in her affidavit stated that H[t]he defense was based on
the government could not prove beyond a reasonable doubt that Running was the person who
made the video." CIV Doc. 16 at 3. If this, in fact, was Running's defense, then the absence of
Huyck's testimony certainly would have aided Running.
13

In Graham, the Supreme Court applied the categorical approach for the first time to a
non-capital case when it banned life-without-parole sentences for juveniles convicted of non­
homicide offenses. 560 U.S. at 62-75. Reasoning that a sentence of life without parole for a
juvenile offender is akin to the death penalty, the Supreme Court found that such a severe
sentence was cruel and unusual when imposed on juveniles, a class of offenders with diminished
culpability and greater capacity for reform. Id. at 67-72.
Most recently, the Supreme Court in Miller v. Alabama, 132 S. Ct. 2455 (2012) banned
mandatory life-without-parole sentences for juveniles convicted of homicide crimes. In reaching
this conclusion, the Court stressed that Graham's "unprecedented" ban on a sentence of life
without parole for juveniles was justified "[i]n part because we viewed this ultimate penalty for
juveniles as akin to the death penalty." Miller, 132 S. Ct. at 2466. Relying on this kinship, as
well as juvenile offenders' diminished culpability and precedent precluding mandatory death
sentences for adults, the Supreme Court held that the Eighth Amendment's "principle of
proportionality" categorically prohibited mandatory life without parole sentences for juveniles.
Id. at 2475.
Although the conclusion in Graham and Miller that juveniles are less culpable than adults
may have some general application to Running's Eighth Amendment argument, the categorical
approach employed in those cases does not. Because Running's mandatory ten-year sentence is
far less severe than a sentence of life without parole, it does not raise the same unacceptably high
risk of disproportionate punishment that drove the Supreme Court's decisions in Graham and
Miller.

Put another way, one of the Supreme Court's primary justifications for adopting

categorical rules in Graham and Miller-that a sentence of life without parole for a juvenile is so
severe that it is akin to the death penalty-is lacking in this case. Accordingly, neither Graham

14

nor Miller establish that a ten-year mandatory prison term for a defendant who committed his
crime as a juvenile is the sort of sentencing practice that requires categorical rules to ensure
constitutional proportionality.

Nor does Running's sentence violate the categorical rule

announced in Miller simply because the statute on which he was convicted mandated a minimum
sentence of ten years in prison. The problem with the mandatory sentencing schemes at issue in
Miller was that they precluded the judge or jury from considering the mitigating circumstances
of youth before imposing the uniquely severe punishment of life without parole on a juvenile
offender. Miller, 132 S. Ct. at 2466 ("By removing youth from the balance ... these [mandatory
sentencing] laws prohibit a sentencing authority from assessing whether the law's harshest term
of imprisonment proportionately punishes a juvenile offender.").

As the Supreme Court

explained, Miller's holding "mandates only that a sentencer follow a certain process­
considering an offender's youth and attendant characteristics-before imposing a particular
penalty." Id. at 2471. When, as here, the mandated term of imprisonment is not akin to a
sentence of life without parole for a juvenile, Miller does not apply. United States v. Marshall,
736 F.3d 492, 506 (6th Cir. 2013) (Lawson, J., concurring in the judgment) (concluding that
because Miller only held that a sentencing authority must consider a juvenile'S characteristics
when imposing the most severe punishment, it cannot "be read to prohibit mandatory term-of­
years sentences for juveniles across the board"), cert. denied, 134 S. Ct. 2832 (2014).
Because the categorical approach used in Graham and Miller is inapplicable here,
Running must demonstrate that the ten-year sentence violates the Eighth Amendment given the
particular circumstances of his case. In the context of a case-partiCUlar challenge to a term-of­
years sentence, the Supreme Court has explained that the Eighth Amendment "contains a
'narrow proportionality principle,' that 'does not require strict proportionality between crime and

15

sentence' but rather 'forbids only extreme sentences that are grossly disproportionate to the
crime.'" Graham, 560 U.S. at 59-60 (quoting Harmelin v. Michigan, 501 U.S. 957, 997, 1000­
1001 (1991) (Kennedy, J., concurring in part and concurring in the judgment)) (internal
quotation marks omitted).
Determining whether a particular sentence for a term of years violates the Eighth
Amendment involves a two-step analysis. Id. at 60. First, courts must compare the gravity of
the crime to the severity of the penalty to determine whether an "inference of gross
disproportionality" exists. Id. (quoting Harmelin, 501 U.S. at 1005 (Kennedy, J. concurring in
part and concurring in the judgment)). Only in the "rare case" that such an inference arises do
courts proceed to the second step--comparing the defendant's sentence to sentences received by
other defendants convicted of the same crime.

Id. (quoting Harmelin, 501 U.S. at 1005

(Kennedy, J. concurring in part and concurring in the judgment)). "If this comparative analysis
'validates[s] an initial judgment that [the] sentence is grossly disproportionate,' the sentence is
cruel and unusuaL" Id. (alterations in original) (quoting Harmelin, 501 U.S. at 1005 (Kennedy,

J. concurring in part and concurring in the judgment)).
To evaluate the gravity of a crime, courts consider the defendant's culpability and the
harm or threat of harm to the victim or society. Henderson v. Norris, 258 F3d 706, 709 (8th Cir.
2001). Here, there was some concern that Running posed a threat to the public. As this Court
noted at sentencing, there was evidence that Running had engaged in other sexual misconduct
with his younger brother and Running had been convicted when he was sixteen of engaging in
sexual contact with a thirteen-year-old girl. CR Doc. 49 at 42. While Running was on probation
for that offense, he was caught possessing a picture of himself engaged in sexual activity with a

16

different minor. CR Doc. 49 at 42. 5 Running's crimes of conviction in this case were certainly
serious. See United States v. Reingold, 731 F.3d 204, 216 (2d Cir. 2013) ("[C]hild pornography
crimes at their core demand the sexual exploitation and abuse of children."); United States v.
MacEwan, 445 F.3d 237, 249 (3d Cir. 2006) ("The congressional findings underlying § 2251
repeatedly stress that child pornography is a form of sexual abuse which can result in physical or
psychological harm, or both, to the children involved.") (citation and internal quotation marks
omitted).

However, Running's crimes were not as grave as a typical case involving the

production of child pornography. Running committed his crimes when he was approximately
fourteen years old, the videotape was never distributed or available on the internet, and the
victim impact statements from Susan Neumeister and Running's younger sister suggest that
Running's offenses did not cause significant harm to his siblings.
With respect to the severity of Running's penalty, the version of 18 U.S.c. § 2251 in
effect at the time Running committed his offenses imposed a mandatory minimum sentence of
ten years with a statutory maximum of twenty years.

18 U.S.c. § 2251 (2000). Running's

sentencing guideline range for each offense was 210 to 240 months' imprisonment. Taking into
account Running's age when he made the videotape and the absence of certain aggravating
factors present in many cases involving the production of child pornography, this Court granted
Running's motion for a downward variance and sentenced him to two concurrent terms of 120
months' imprisonment. CR Doc. 49 at 43. Although ten years is still a very harsh penalty,

5Running was found not guilty of the 2009 aggravated sexual abuse of a child charge, but the
alleged victim in that case testified that Running had sexually abused her in April 2008. 2009
CR Doc. 119 at 2. At sentencing, this Court was mindful to sentence Running for child
pornography and not for the aggravated sexual abuse of a child case, but observed with reference
to the aggravated sexual abuse of a child charge, "that was a case where the jury could have gone
either way." CR Doc. 49 at 42.
17

Supreme Court precedent and deference to Congress compel the conclusion that Running's
sentence was not grossly disproportionate to his crimes.
When Congress enacted the mandatory minimum sentence in the version 18 U.S.C.
§ 2251 applicable to Running, it made a penological judgment that the production of child

pornography was a serious enough offense to require ten years of imprisonment for even the
least culpable offender. 6 Courts reviewing the proportionality of a sentence must "grant
substantial deference to the broad authority that legislatures necessarily possess in determining
the types and limits of punishments for crimes." Solem v. Helm, 463 U.S. 277, 290 (1983);
also Harmel in, 501 U.S. at 998 ("[T]he fixing of prison terms for specific crimes involves a
substantive penological judgment that, as a general matter, is 'properly within the province of
legislatures, not courts.'" (Kennedy, J. concurring in part and concurring in the judgment)
(quoting Rummel v. Estelle, 445 U.S. 263, 275-76 (1980))).

Indeed, the "primacy of the

legislature" is one of the concepts that inform the Supreme Court's narrow view of the Eighth
Amendment's proportionality principle. Harmelin, 501 U.S. at 1001 (Kennedy, J. concurring in
part and concurring in the judgment).
In addition to stressing deference to Congress, the Supreme Court has cautioned that
"'successful challenges to the proportionality of particular sentences' should be 'exceedingly
rare.'" Hutto v. Davis, 454 U.S. 370, 374 (1982) (per curiam) (quoting Rummel, 445 U.S. at
272). The Supreme Court's precedent in this area illustrates just how difficult it is to succeed on
such a challenge.

See Ewing v. California, 538 U.S. 11, 30-31 (2003) (plurality opinion)

(rejecting a proportionality challenge to a sentence of twenty-five years to life under three-strikes

6In 2003, Congress increased that mandatory minimum sentence for violations of 18 U.S.C.
§ 2251 to fifteen years. Prosecutorial Remedies and Tools Against the Exploitation of Children
Today Act of2003 (PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650.
18

law for a defendant who stole $1,200 in golf clubs); Harmeiin, 501 U.S. at 995-96 (affirming
mandatory sentence of life without parole for first-time offender convicted of possessing 672
grams of cocaine); Hutto, 454 U.S. at 374 (finding no constitutional error where defendant was
sentenced to two consecutive terms of twenty years in prison for possession with intent to
distribute nine ounces of marijuana and distribution of marijuana); Rummel, 445 U.S. at 285
(affirming mandatory sentence of life imprisonment under three-strikes law where triggering
conviction was for obtaining $120.75 by false pretenses and two prior felonies were nonviolent
frauds that each involved less than $100). Some of these cases that affirmed what appear to be
shockingly harsh sentences involved defendants with ugly criminal histories.
Given the serious nature of Running's crimes, the substantial deference owed to
Congress's creation of the ten-year mandatory minimum, and Supreme Court precedent dictating
that courts should uphold a defendant's sentence even where it seems harsh in light of the
offense committed, a comparison of Running's crimes to his sentence does not give rise to an
inference of gross disproportionality. This conclusion holds true despite Running's young age
and all the attributes that accompany it.

When viewed in the larger context of juvenile

sentencing, Running's ten-year sentence does not create an inference of disproportionality.
Courts have upheld harsher sentences for juveniles convicted of serious crimes. See Roldan v.
Barnes, No. ED CV 13-394-JLS(E), 2015 WL 103467, at

* 19-20

(C.D. Cal. Jan. 7, 2015)

(finding that sentence of thirty-five years to life for fifteen-year-old defendant was not contrary
to clearly established federal law where defendant was convicted of committing two gang-related
armed robberies); People v. Perez, 154 Cal. Rptr. 3d 114, 120-21 (Cal. Ct. App.) (finding no
Eighth Amendment violation where sixteen-year-old defendant was sentenced to thirty years to
life for sexually assaulting two children under the age of fourteen years old), cert. denied, 134 S.

19

Ct. 527 (2013); People v. Payne, 850 N.W.2d 601, 605-06 (Mich. Ct. App. 2014) (per curiam)
(rejecting Eighth Amendment challenge to mandatory twenty-five-year sentence for a seventeen­
year-old defendant convicted of sexual assault of a child under thirteen).
Moreover, the Eighth Circuit has "never held a sentence within the statutory range to
violate the Eighth Amendment." United States v. Vanhorn, 740 F.3d 1166, 1170 (8th Cir. 2014).
And courts have routinely rejected Eighth Amendment challenges to very severe sentences for
producing child pornography.

Id. at 1169-70 (sentence of 220 months' imprisonment for

producing child pornography was not grossly disproportionate); United States v. McDade, 399 F.
App'x 520, 524-25 (lIth Cir. 2010) (per curiam) (holding that 240-month sentence for
producing child pornography did not meet the threshold of gross disproportionality); United
States v. Davis, 306 F. App'x 102, 104 (5th Cir. 2009) (per curiam) (rejecting Eighth
Amendment challenge to 200-month sentence for producing child pornography).
In sum, although a ten-year sentence for crimes Running committed when he was
fourteen may seem unfair, it is not unconstitutional. This Court took Running's youth into
account as much as it could, but was statutorily bound to impose a sentence of at least ten years.
Because Running's Eighth Amendment claim lacks merit, Miner was not deficient for failing to
raise it.
C.

Evidentiary Hearing

A prisoner is entitled to an evidentiary hearing on a § 2255 motion unless the motion,
files and records of the case conclusively show that the prisoner is not entitled to relief. 28
U.S.C. § 2255; Engelen v. United States, 68 F.3d 238, 240-41 (8th Cir. 1995). Accordingly, a
petition can be dismissed without a hearing if (1) the petitioner's allegations, accepted as true,
would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because

20

they are contradicted by the record, inherently incredible, or conclusions rather than statements
offact. Engelen, 68 F.3d at 240-41.
For the reasons explained above, the motion, files and records in this case conclusively
show that Running is not entitled to relief on either his independent claims or the vast majority of
his ineffective-assistance-of-counsel claims.

However, this Court will allow both parties to

supplement the record with respect to Running's ineffective-assistance-of-counsel claim in
Ground Three and may conduct an evidentiary hearing thereafter. This Court reserves ruling at
this time on whether a certificate of appealability should issue concerning any claim.

III.

Conclusion
For the reasons stated above, it is hereby
ORDERED that Running's motion to vacate, set aside, or correct sentence, Doc. 1, is

denied except with regard to Ground Three's ineffective-assistance-of-counsel claim.

It is

further
ORDERED that after the Court appoints counsel for Running, both parties may
supplement the record regarding Ground Three's ineffective-assistance-of-counsel claim.
DATED this~3(1.day of January, 2015.
BY THE COURT:

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