McCall v. USA
Filing
22
MEMORANDUM AND OPINION: As the petitioner under § 2255, Mr. McCall fails to meet his burden of establishing that his conviction and sentence were in violation of the Constitution, or that a fundamental defect resulted in eithe r a complete miscarriage of justice or an egregious error. Mr. McCall's Motion to Vacate, Set Aside or Correct His Sentence [Doc. 1] is therefore DENIED, and his Motion for Summary Judgement [sic]/Motion for Clarification [Doc. 13] is also DENIED. This case is hereby DISMISSED with prejudice. The Court will enter an order consistent with this opinion. Signed by District Judge J Ronnie Greer on 05/07/2020. (Copy of Memorandum mailed to Ronnie McCall) (AMP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
RONNIE LEE MCCALL,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
No. 2:18-CV-00098-JRG-CRW
MEMORANDUM OPINION
This matter is before the Court on Petitioner’s Motion to Vacate, Set Aside or Correct
His Sentence [Doc. 1], Petitioner’s Pro Se Memorandum in Support of the Instant Petitioner’s
Motion Pursuant to 28 U.S.C. § 2255 [Doc. 2], and Petitioner’s Motion for Summary Judgement
[sic]/Motion for Clarification [Doc. 13]. For the reasons herein, the Court will deny Petitioner’s
motions.
I.
BACKGROUND
In 2011, Ronnie and Connie McCall had custody over four minor children, and David
Berry, the manager of a local market, asked the McCalls whether they would allow their children
to do “modeling” for him in exchange for cash. [Sixth Circuit Op., Doc. 201, at 1, No. 2:13-CR00092]. After agreeing to this proposition, the McCalls, on dozens of occasions, sent their girls
to Mr. Berry’s apartment, where Mr. Berry took nude photos of them and raped them. [Id. at 1–
2]. For roughly eighteen months, their children endured Mr. Berry’s abuse, and during this
timeframe, the McCalls—while knowing that Mr. Berry was taking nude photos and having sex
with their children—gave him permission to take their oldest daughter, T.G., on a weekend trip
to Myrtle Beach, South Carolina. [Id. at 2]. In Myrtle Beach, Mr. Berry, as he had done on nearly
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forty other occasions, took nude photos of T.G. and had sex with her. [Id.]. Afterwards, Mr.
Berry gave $800 to T.G., who then surrendered the money to Mr. McCall. [Id.]. Later, T.G.
alerted authorities about Mr. Berry’s abuse, and after searching his apartment, they discovered
condoms, lubrication, a Kodak Easyshare Camera, and more than 300 images of child
pornography on his computer. [First Trial Tr., Doc. 197, at 65:13–19, 88:15–21, No. 2:13-CR00092]. Mr. Berry committed suicide the next day, and after the McCalls attempted to flee to
Canada, authorities apprehended them. [Sixth Circuit Op. at 2].
A federal jury later convicted Mr. McCall on four counts: (1) selling a child by a parent
for purposes of producing child pornography, in violation of 18 U.S.C. § 2251A; (2) producing
child pornography, in violation of 18 U.S.C. § 2251(a); (3) producing child pornography by a
parent in violation of 18 U.S.C. § 2251(b); and (4) using a facility of interstate commerce to
coerce a child to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). [Indictment,
Doc. 3, at 1–3, No. 2:13-CR-00092; Jury Verdict Form, Doc. 145, at 1–3, No. 2:13-CR-00092].
On June 6, 2016, the Court sentenced Mr. McCall to a life term of imprisonment, and it entered
judgment against him on June 20, 2016. [J., Doc. 182, at 1–4, No. 2:13-CR-00092].
Mr. McCall appealed his conviction—only as it related to § 2251A—and his sentence,
but the Sixth Circuit Court of Appeals rejected his appeal, and on July 14, 2017, it issued its
mandate. [Mandate, Doc. 202, No. 2:13-CR-00092]. On June 18, 2018, Mr. McCall filed a
petition to vacate, set aside, or correct his sentence under § 2255. 1 In his petition, he collaterally
attacks his conviction and sentence on multiple grounds, arguing that (1) the United States lacked
1
When a defendant files a timely direct appeal of his judgment, as Mr. McCall did in this case, § 2255’s oneyear statute of limitations begins to run “upon the expiration of the 90-day period in which the defendant could have
petitioned for certiorari to the Supreme Court, even when no certiorari petition has been filed.” Sanchez-Castellano
v. United States, 358 F.3d 424, 426–27 (6th Cir. 2004) (citing Clay v. United States, 537 U.S. 522, 532 (2003)). Mr.
McCall’s § 2255 petition is therefore timely.
2
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sufficient evidence to prove his guilt under §§ 2251(a), 2251(b), and 2422(b); (2) § 2251(a) is
unconstitutional; and (3) his trial counsel and appellate counsel were ineffective. [Pet. at 4–10].2
After Mr. McCall filed his § 2255 petition, the Court ordered a response from the United States.
[Order, Doc. 4, at 1]. Although the United States, in 2018, twice moved for an extension of time
in which to file a response—both of which the Court granted—it did not file one until roughly a
month ago. [Order Granting Extension, Doc. 8., at 1; Second Order Granting Extension, Doc. 10,
at 1; United States’ Resp., Doc. 21]. 3
Recently, the Court ordered Mr. McCall to show cause as to why the doctrine of
procedural default does not preclude it from reaching the merits of his claims. [Show-Cause
Order, Doc. 17, at 1]. Mr. McCall has responded to the Court’s show-cause order. [Pet’r’s Resp.,
Doc. 20]. Having carefully reviewed Mr. McCall’s response and his petition, the Court is now
prepared to rule on his claims.
II.
STANDARD OF REVIEW
Under § 2255, “[a] prisoner in custody under sentence of a [federal] court . . . claiming
the right to be released . . . may move the court which imposed the sentence to vacate, set aside
or correct the sentence.” 28 U.S.C. § 2255(a). A court must vacate and set aside a sentence if it
2
Mr. McCall also requests the appointment of counsel to aid him here in these § 2255 proceedings, [Pet’r’s
Mot. Summ. J. at 1], but the Court declines to accommodate his request. For “prisoners who indicate, without more,
that they wish to seek post-conviction relief,” as Mr. McCall does here, the onus to formulate “a claim to postconviction relief usually rests upon the indigent prisoner himself with such help as he can obtain within the prison
walls or the prison system.” Johnson v. Avery, 393 U.S. 483, 488 (1969); see Pennsylvania v. Finley, 481 U.S. 551,
555 (1987) (“We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks
upon their convictions, and we decline to so hold today.” (citing Avery, 393 U.S. at 488)).
3
According to the United States, “the enactment of the First Step Act and the shutdown of the federal
government due to a lapse in appropriations” caused it to overlook the Court’s deadline for the filing of a response.
[United States’ Resp. at 2 n.2]. While these occurrences might have compelled the Court to excuse the United States’
failure to meet this deadline, the United States never moved for leave before filing its belated response. See Fed. R.
Civ. P. 6(b)(1)(B) (“When an act may or must be done within a specified time, the court may, for good cause, extend
the time . . . . on motion made after the time has expired if the party failed to act because of excusable neglect.”).
3
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concludes that “the judgment was rendered without jurisdiction, or that the sentence imposed
was not authorized by law or otherwise open to collateral attack, or that there has been such a
denial or infringement of the constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack.” Id. § 2255(b). To warrant relief for a denial or infringement of
a constitutional right, a petitioner has to establish an “error of constitutional magnitude which
had a substantial and injurious effect or influence on the proceedings.” Watson v. United States,
165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993)).
To warrant relief for a non-constitutional claim, a petitioner must establish that a fundamental
defect in the proceeding resulted in a complete miscarriage of justice or an egregious error
that deprived him of “the rudimentary demands of fair procedure.” Reed v. Farley, 512 U.S.
339, 354 (1994); see Grant v. United States, 72 F. 3d 503, 505–06 (6th Cir. 1996).
In sum, “[a] prisoner seeking relief under § 2255 ‘must allege as a basis for relief: (1) an
error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the entire proceeding invalid.” Pough
v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (quotation omitted). In support of one of these
three bases for relief, a petitioner’s allegations must consist of sufficient facts showing she is
entitled to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972). “Generally, courts have held
that ‘conclusory allegations alone, without supporting factual averments, are insufficient to state
a valid claim under § 2255.’” Jefferson v. United States, 730 F.3d 537, 547 (6th Cir. 2003)
(quotation and citation omitted). And similarly, if “the motion and the files and records of
the case conclusively show that the prisoner is entitled to no relief,” she will not receive an
evidentiary hearing. Smith v. United States, 348 F.3d 545, 550 (6th Cir. 2003) (quoting Fontaine
v. United States, 411 U.S. 213, 215 (1973)).
4
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A petitioner has the burden of proving that “an error has occurred that is sufficiently
fundamental to come within” one of the three “narrow limits” for § 2255 relief. United States v.
Addonizio, 442 U.S. 178, 185 (1979); see Pough, 442 F.3d at 964. The standard that governs
collateral review under § 2255, as opposed to direct review on appeal, is significantly higher.
United States v. Frady, 456 U.S. 152, 162–66 (1982); see Hampton v. United States, 191 F.3d
695, 698 (6th Cir. 1999) (“Habeas review is an extraordinary remedy and ‘will not be allowed
to do service for an appeal.’” (quoting Reed, 512 U.S. at 354)). This is so because “[t]he reasons
for narrowly limiting the grounds for collateral attack on final judgments are well known and
basic to our adversary system.” Addonizio, 442 U.S. at 184 (footnote omitted); see Custis v.
United States, 511 U.S. 485, 497 (1994) (“‘[I]nroads on the concept of finality tend to undermine
confidence in the integrity of our procedures’ and inevitably delay and impair the orderly
administration of justice.” (quotation omitted)); Parke v. Raley, 506 U.S. 20, 29 (1992) (referring
to a “presumption deeply rooted in our jurisprudence: the ‘presumption of regularity’ that attaches
to final judgments” (quotation omitted)).
III. ANALYSIS
The Court begins its analysis by addressing Mr. McCall’s motion for summary judgment,
in which he argues that the United States’ failure to timely respond to his petition entitles him to
a walkover: “[T]he instant Petitioner’s Motion pursuant to 28 U.S.C. § 2255 is wholly and truly
uncontested. As such, the Court must . . . enter a judgment in favor of the Petitioner.” [Pet’r’s
Mot. Summ. J. at 1]. In his recently filed petition for writ of mandamus [Doc. 16], however, Mr.
McCall maintains that he has now “realiz[ed]” a motion for summary judgment is “not a valid
Motion under § 2255” and indicates that he has filed, in its place, a motion for default judgment.
5
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[Id. at 5]. 4 Without citing case law, Mr. McCall argues that “some courts have allowed the useage
[sic] of [a motion for default judgment] in some circumstances in § 2255 motions.” [Id.].
But this argument is not an accurate characterization of the law, at least not as the law
applies to § 2255 proceedings in this circuit. See United States v. Bawgus, 782 F. App’x 408,
409–10 (6th Cir. 2019) (“[The petitioner] alternatively argues that the government’s failure to
respond to a district court order [requiring a response] . . . bars it from challenging his § 2255
relief. But whether the government appropriately responded to that order does not discharge [the
petitioner’s] burden to prove entitlement to habeas relief.” (citations omitted)); Allen v. Perini,
424 F.2d 134, 138 (6th Cir. 1970) (“The failure of State officials to file a timely return does not
relieve the prisoner of his burden of proof. Default judgments in habeas corpus proceedings are
not available as a procedure to empty State prisons[.]” (citations omitted)); United States v.
Mitchell, No. 15-20609, 2019 WL 1931988, at *3 (E.D. Mich. Apr. 30, 2019) (stating that a
“[d]efault judgment is not appropriate in habeas cases—and, by extension of reasoning, to § 2255
cases—‘on the ground that state officials fail to file a timely response to a petition’” (quoting
Mahady v. Cason, 222 F. Supp. 2d 918, 922 (E.D. Mich. 2002))); see generally Davis v. United
States, 417 U.S. 333, 343 (1974) (stating that Ҥ 2255 was intended to afford federal prisoners a
remedy identical in scope to federal habeas corpus”); Winkler v. United States, Nos. 3:08-cr-014,
3:10-cv-210, 2013 WL 4494971, at *2 (E.D. Tenn. Aug. 20, 2013) (A § 2254 case’s “reasoning,
nevertheless, applies to cases filed by federal prisoners under 28 U.S.C. § 2255 because §§ 2254
and 2255 are counterparts of each other and the law applicable to one generally applies to the
other.” (citing Davis, 417 U.S. at 343)).
4
The Court, however, has received no motion for default judgment from Mr. McCall, and it is not part of the
record. See [Sixth Circuit Order, Doc. 19, at 2 (“Although McCall seeks a ruling on his motion for default judgment,
that motion is not reflected on the district court docket.”)].
6
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Similarly, Mr. McCall also asserts that the Court, in lieu of a response from the United
States, “is not authorized to argue the Government’s case against [him], just as the Court cannot
argue [his] cases against the Government.” [Pet’r’s Mot. for Writ at 5]. But again, Mr. McCall,
with this assertion, is angling for a default judgment, which is simply unavailable to him. And
contrary to his belief, the Rules Governing § 2255 Proceedings do not necessarily require a
response from the United States in the first place. See Rules Governing § 2255 Proceedings, Rule
5(a) (“The respondent is not required to answer the motion unless a judge so orders.”); see also
Bawgus, 782 F. App’x at 410 (“[W]hether the government appropriately responded to that order
does not discharge [the petitioner’s] burden to prove entitlement to habeas relief.” (citations
omitted)).
And in a similar vein, the Court has license to raise sua sponte the doctrine of procedural
default now that it has provided Mr. McCall with an opportunity to address whether his claims
must succumb to this doctrine. See Lorraine v. Coyle, 291 F.3d 416, 426 (6th Cir. 2002) (“[T]his
Court has held in a § 2255 context that it may sua sponte raise procedural default despite the
Government’s failure to defend on that ground.” (citations omitted)); see also Wells v. Warden,
Belmont Corr. Inst., No. 18-3125, 2018 WL 3869276, at *2 (6th Cir. Apr. 30, 2018) (“[T]he
district court did not err by considering the issue of procedural default sua sponte because it
provided [the petitioner] the opportunity to address the issue[.]”); Howard v. Bouchard, 405 F.3d
459, 476 (6th Cir. 2005) (“The main concern with raising procedural default sua sponte is that a
petitioner not be disadvantaged without having had an opportunity to respond.” (citation
omitted)). The Court will therefore hold Mr. McCall to his burden, as the party pursuing relief
under § 2255, despite the United States’ lassitude in defending this case.
7
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A. Procedural Default
Under the doctrine of procedural default, a defendant who fails to raise an issue on direct
appeal may not raise that issue in a § 2255 petition unless he can establish cause and prejudice
to excuse his failure. Huff v. United States, 734 F.3d 600, 605–06 (6th Cir. 2013). The “hurdle”
that a petitioner must vault to excuse procedural default is “intentionally high . . . for respect for
the finality of judgments demands that collateral attack generally not be allowed to do service
for an appeal.” Elzy v. United States, 205 F.3d 882, 884 (6th Cir. 2000) (citation omitted). The
element of cause requires “good cause” for the petitioner’s failure to raise his claims on direct
appeal, and the element of prejudice requires the petitioner to show that he “would suffer
prejudice if unable to proceed” with those claims. Regalado v. United States, 334 F.3d 520, 528
(6th Cir. 2003) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).
Rarely, a defendant who fails to establish cause and prejudice can still obtain review of
his post-conviction claims if it is necessary to avoid a fundamental miscarriage of justice, as
when a defendant is able to show his actual innocence by submitting new evidence to the Court.
Dretke v. Haley, 541 U.S. 386, 393 (2004); see Bousley, 523 U.S. at 622–24 (stating that “‘actual
innocence’ means factual innocence, not mere legal insufficiency” (citation omitted)); see also
McQuiggin v. Perkins, 569 U.S. 383, 395 (2013) (stating that the actual-innocence exception
deals with a “severely confined category [of] cases in which new evidence shows ‘it is more
likely than not that no reasonable juror would have convicted [the petitioner]’” (quotation
omitted)); Jamison v. Collins, 100 F. Supp. 2d 521, 533 (S.D. Ohio 1998) (“To demonstrate a
‘fundamental miscarriage of justice,’ a petitioner must show that the alleged constitutional
violation probably resulted in the conviction of one who is actually innocent.” (citing Murray v.
Carrier, 477 U.S. 478, 496 (1986))).
8
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In responding to the Court’s show-cause order, Mr. McCall asserts that “[a]ll of [his]
claims are exempt from such procedural default,” but he offers the Court nothing beyond this
conclusory assertion except a mere recitation of his claims. [Pet’r’s Resp. at 1–4]. 5 In addition,
he neither argues in his response nor alleges in his petition that he has new evidence capable of
establishing his actual innocence. Instead, he claims only that the evidence under which he was
convicted was insufficient and that § 2251(a) is unconstitutional.
In failing to raise any appreciable argument as to cause and prejudice, Mr. McCall has
procedurally defaulted on most of his claims—his claims that the United States lacked sufficient
evidence to convict him under §§ 2251(a), 2251(b), and 2422(b) and his claim that § 2251(a) is
unconstitutional, none of which he raised during his direct appeal. See Simmons v. Schweitzer,
No. 16-4170, 2017 WL 4980159, at *2 (6th Cir. Apr. 5, 2017) (“[The petitioner] did not raise his
sufficiency-of-the-evidence claim on direct appeal. Reasonable jurists could not disagree with the
district court’s conclusion that this claim is procedurally defaulted because [the petitioner] offers
no colorable argument that cause and prejudice excuse his default, or that the failure to excuse his
default would result in a fundamental miscarriage of justice.”); see Dretke, 541 U.S. at 388 (“Out
of respect for finality, comity, and the orderly administration of justice, a federal court will not
entertain a procedurally defaulted constitutional claim[.]”); cf. United States v. Israel, Criminal
Action No. 5:14-98-DCR-CJS; Civil Action No. 5:17-312-DCR-CJS, 2018 WL 3212071, at *5
(E.D. Ky. Feb. 12, 2018) (“As Defendant has not made any effort to show cause and actual
5
Although Mr. McCall does argue that he “is obviously suffering the prejudice of conviction and loss of
liberty,” [Pet’r’s Mem. at 8], he does not, with this argument, identify any prejudice apart from his baseline assertion
that his conviction and sentence are unlawful, see Scott v. Mitchell, 209 F.3d 854, 872 (6th Cir. 2000) (“Of course,
evaluating the merits to determine the applicability of procedural default is circular and undermines the federalism
concerns behind the doctrine.”); Mario M. Trollinger v. Warden, S. Ohio Corr. Inst., No. 1:13–cv–667, 2015 WL
763967, at *4 (S.D. Ohio Feb. 23, 2015) (“[The petitioner] argues that the very fact that the evidence is insufficient
itself satisfies the cause and prejudice requirement to excuse a procedural default. That reasoning is circular: a habeas
petitioner must first overcome the procedural default before a habeas court can reach the merits of the insufficient
evidence claim.” (citation omitted)).
9
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prejudice exist to excuse his procedural default, and Defendant has not satisfied the requirements
of the actual innocence exception, Defendant’s claim that §§ 841 and 846 are unconstitutional is
procedurally defaulted.”). 6
But even if Mr. McCall did not procedurally default on these claims, they would still fail
on the merits. The Sixth Circuit has “repeatedly held that the sufficiency of the evidence to
support a conviction may not be collaterally reviewed on a Section 2255 proceeding.” United
States v. Osborn, 415 F.2d 1021, 1024 (6th Cir. 1969) (citation omitted); United States v. Shields,
291 F.2d 798, 799 (6th Cir. 1961) (“A Section 2255 proceeding cannot be used as a substitute for
an appeal. The sufficiency of the evidence to prove the alleged offenses will not be reviewed in
such a proceeding.” (citations omitted)); Mitchell v. United States, Nos. 2:05-CV-274, 2:04-CR02, 2007 WL 325762, at *3 (E.D. Tenn. Jan. 31, 2007) (“Section 2255 cannot be used to attack
the sufficiency of the evidence by which a defendant is convicted, as that is an issue that can be
raised only by direct appeal.” (citing Stephan v. United States, 496 F.2d 527, 528–29 (6th Cir.
1974))).
In addition, Mr. McCall’s argument that § 2251(a) is unconstitutional is also without
merit. Section 2251(a) states:
Any person who employs, uses, persuades, induces, entices, or coerces any
minor to engage in, or who has a minor assist any other person to engage in, or who
transports any minor in or affecting interstate or foreign commerce, or in any
Territory or Possession of the United States, with the intent that such minor engage
in, any sexually explicit conduct for the purpose of producing any visual depiction
of such conduct or for the purpose of transmitting a live visual depiction of such
conduct, shall be punished as provided under subsection (e), if such person knows
or has reason to know that such visual depiction will be transported or transmitted
using any means or facility of interstate or foreign commerce or in or affecting
6
Although Mr. McCall, in his response, does correctly point out that a petitioner can bring an ineffective
assistance of counsel claim “whether or not the petitioner could have raised the claim on direct appeal,” [Pet’r’s Resp.
at 1], the fact that he has asserted claims of ineffective assistance of counsel—which the Court will go on to address
in this opinion—does not, without a viable argument of cause and prejudice, redeem his procedurally defaulted claims.
Edwards v. Carpenter, 120 S. Ct. 1587, 1592 (2000).
10
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interstate or foreign commerce or mailed, if that visual depiction was produced or
transmitted using materials that have been mailed, shipped, or transported in or
affecting interstate or foreign commerce by any means, including by computer, or
if such visual depiction has actually been transported or transmitted using any
means or facility of interstate or foreign commerce or in or affecting interstate or
foreign commerce or mailed.
Mr. McCall asserts that Congress, in enacting § 2251(a), “acted outside its own limited and
enumerated powers under the Commerce Clause.” [Pet’r’s Mem. at 4]. 7 More specifically, he
argues that § 2251(a)’s plain language “does not require any actual product of child pornography
images to exist” and that the Commerce Clause “does not provide any enumerated power to
Congress to regulate crimes against children that are not in Commerce.” [Id. at 4, 5]. According
to Mr. McCall, the “only ‘way’” a person can “‘constitutionally’ violate this statute is if they
actually transport a minor across state lines,” but the United States, he argues, presented no
evidence to this effect at trial. [Id. at 6, 7].
Mr. McCall’s challenge to § 2251(a) is an as-applied challenge, not a facial challenge, to
its constitutionality under the Commerce Clause. See United States v. Ray, 189 F. App’x 436,
446–47 (6th Cir. 2006) (“[The defendant] argues that . . . [§] 2251(a) . . . [is] unconstitutional as
applied to his case, because he argues that the federal criminalization of his activities exceeds
Congress’s Commerce Clause powers.”); United States v. Andrews, 383 F.3d 374, 376–77 (6th
Cir. 2004) (“[The defendant] does not argue that § 2251(b) is facially unconstitutional, instead
contending that it is unconstitutional under the Commerce Clause as applied to him because his
activities did not substantially relate to interstate commerce.”); see generally Seling v. Young,
531 U.S. 250, 271 (2001) (Thomas, J., concurring) (“Typically an ‘as-applied’ challenge is a
7
The Commerce Clause states: “The Congress shall have Power . . . . To regulate Commerce . . . among the
several States[.]” U.S. Const., Art. I, § 8, cl. 3.
11
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claim that a statute, ‘by its own terms, infringe[s] constitutional freedoms in the circumstances
of [a] particular case.’” (quotation omitted)).
But in relying on the Commerce Clause to argue that his conduct was not criminal under
§ 2251(a) because it was merely local in nature—that is, because it did not involve the “transport
[of ] a minor across state lines,” [Pet’r’s Mem. at 6]—Mr. McCall recycles an argument that the
Sixth Circuit has rejected several times over. See Ray, 189 F. App’x at 447 (“We have held on
at least three occasions that the federal child pornography statutes are constitutional as applied,
even though the defendants in those cases engaged in behavior that was arguably local
in nature.”); see also United States v. Bowers, 594 F.3d 522, 524 (6th Cir. 2010) (“This case
requires us to address the continued viability of an as-applied Commerce Clause challenge to a
child-pornography conviction under 18 U.S.C. § 2251(a) and 18 U.S.C. § 2252(a)(4)(B) . . . . [The
defendant’s] claim that his wholly intrastate, homemade child pornography falls outside the
purview of congressional legislative power is meritless.”).
Lastly, Mr. McCall argues that “§ 2251, et. seq.” is unconstitutional because it violates
the Ninth Amendment, 8 [Pet’r’s Mem. at 12], but this argument, too, lacks merit because “the
Ninth Amendment does not confer substantive rights” to litigants—that is, rights capable of
offering redress to litigants, Cooper Butt ex rel Q.T.R, v. Barr, 954 F.3d 901, 908 (6th Cir. 2020)
(citation omitted); see generally Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991) (“The
ninth amendment ‘was added to the Bill of Rights to ensure that the maxim expressio unius est
exclusio alterius would not be used at a later time to deny fundamental rights merely because
they were not specifically enumerated in the Constitution.’” (quotation omitted)); cf. United
States v. Hunt, 419 F. App’x 949, 950 (11th Cir. 2011) (“[S]ince the Ninth Amendment does not
8
The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.” U.S. Const. Amend. IX.
12
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provide an inherent right to self defense, 18 U.S.C. § 922(g)(1) cannot be unconstitutional on
these grounds.” (citation omitted)). In sum, Mr. McCall’s claims—his claim that the United States
lacked sufficient evidence to convict him under §§ 2251(a), 2251(b), and 2422(b) and his claim
that § 2251(a) is unconstitutional—fail not only because they are procedurally defaulted but also
because they are baseless.
B. Ineffective Assistance of Counsel
The Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his defence.” This right is the right not merely
to representation but to effective representation. McMann v. Richardson, 397 U.S. 759, 771 n. 14
(1970). When a prisoner contests his sentence by raising the specter of ineffective assistance of
counsel, he normally can succeed only by satisfying the familiar Strickland test, a two-pronged
test that requires a showing of deficient performance and prejudice. Strickland v. Washington,
466 U.S. 668, 688, 694 (1984). To establish deficient performance, a petitioner must show that
his counsel, through the prism of an objective standard of reasonableness, “made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed” by the Sixth Amendment. Id. at
687. And to establish prejudice, a petitioner must demonstrate that his counsel’s deficient
performance was so serious that it deprived him of his fundamental right to due process. Id.
A court has license to address the two prongs of the bipartite test in any order, and if a
petitioner fails to establish either of the prongs of this test, his claim of ineffective assistance
of counsel fails. Id. at 697. In other words, even if a particular aspect of counsel’s performance
proves to be deficient, that deficiency “does not warrant setting aside the judgment of a criminal
proceeding” unless it has a prejudicial effect on the judgment. Id. at 691 (citation omitted). In
short, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
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356, 371 (2010) (citations omitted); see Thelen v. United States, 131 F. App’x 61, 63 (6th Cir.
2005) (“A deferential standard of review applies to ineffective assistance claims. A defendant
must show that counsel’s representation was so ‘thoroughly ineffective that defeat was ‘snatched
from the jaws of victory.’” (quoting West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996))); see also
Strickland, 466 U.S. at 689 (“Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after
it has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable. (citation omitted)).
1. Mr. McCall’s First Claim of Ineffective Assistance
Mr. McCall argues that his trial counsel was ineffective for failing to move for a directed
verdict of acquittal on the § 2251(b) charge once the United States closed its evidence, and he
maintains that his appellate counsel was ineffective for failing to challenge the sufficiency of the
evidence as to this charge. [Pet. at 4; Pet’r’s Mem. at 3]. Although Mr. McCall contends that his
trial counsel had a “duty to move for a dismissal of that Count after the Government rested” and
“[t]here is no reasonable reason why counsel did not enter such a motion,” [Pet’r’s Mem. at 3],
he overlooks the fact that his counsel did in fact move for acquittal under Federal Rule of
Criminal Procedure 29 once the United States rested its case:
Ms. Smith: The United States rests, Your Honor. Thank you.
....
The Court: All right. Is there anything we need to take up before we leave today?
Mr. Sharp: Your Honor, I would have an oral motion for a Rule 29 judgment of
acquittal. I would argue that the evidence as presented is insufficient to support a
conviction in this matter; that the fact witnesses have been too inconsistent with
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each other; and that a reasonable jury would not be able to find beyond a reasonable
doubt guilt on any of the counts as to Mr. McCall.
[Second Trial Tr., Doc. 198, at 195:4–5, 196:5–13, No. 2:13-CR-00092]. Mr. McCall’s claim of
ineffective assistance of counsel therefore fails before it can even cross the threshold of the
Strickland test. See Armstrong v. United States, Cv. No. 2:12-cv-02980-JPM-dkv, Cr. No. 2:09cr-20477-JPM-1, 2016 WL 1261169, at *12 (W.D. Tenn. Mar. 30, 2016) (“As is evident,
[the petitioner’s] counsel did move for a judgment of acquittal on the precise basis that [the
petitioner] asserts he should have done so. Accordingly, [the petitioner] cannot show that his
counsel’s performance was deficient or prejudicial in this regard.”).
As for Mr. McCall’s claim that his appellate counsel was ineffective, this claim, though
it too is without merit, demands a more careful analysis than his sister claim regarding the alleged
ineffectiveness of his trial counsel. “A defendant is entitled to effective assistance of counsel on
his first appeal as a matter of right,” Lewis v. United States, No. 98-6140, 1999 WL 623350, at
*3 (6th Cir. Aug. 9, 1999) (citing Evitts v. Lucey, 469 U.S. 387, 396 (1985)), and the Strickland
test governs claims of ineffective assistance of appellate counsel, Smith v. Robbins, 528 U.S.
259, 285 (2000). But “there can be no constitutional deficiency in appellate counsel’s failure to
raise meritless issues.” Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); see Caver v. Straub,
349 F.3d 340, 348 (6th Cir. 2003) (“In relation to appellate counsel, the Strickland performance
standard does not require an attorney to raise every non-frivolous issue on appeal. (citing Jones v.
Barnes, 463 U.S. 745, 751 (1983))).
In deciding whether Mr. McCall’s appellate counsel was ineffective, the Court’s first
task, therefore, is to assess the merits of the claim that his appellate counsel did not raise on
appeal—that is, the claim that the evidence was insufficient to sustain his conviction under
§ 2251(b). See Alder v. Burt, 240 F. Supp. 2d 651, 667 (E.D. Mich. 2003) (“[T]o determine
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whether petitioner received ineffective assistance of appellate counsel, this Court must first
examine the merits of the claims which appellate counsel might have presented in petitioner’s
direct appeal, but failed to do so.”); see also Mapes, 178 F.3d at 413–14 (stating that, if appellate
counsel fails to raise issues that have merit, a district court then engages in the two-pronged
Strickland analysis of constitutionally deficient performance and prejudice); cf. Willis v. Smith,
351 F.3d 741, 745 (6th Cir. 2003) (stating that to resolve the petitioner’s claim of ineffective
assistance of appellate counsel, “we must, ‘ironically,’ consider the merits of th[e] claim” that
petitioner’s appellate counsel failed to raise a viable issue on direct appeal).
In considering a defendant’s claim that the evidence is insufficient to support his
conviction, the Court “do[es] not weigh the evidence, consider the credibility of witnesses or
substitute [its] judgment for that of the jury.” United States v. Hilliard, 11 F.3d 618, 620 (6th
Cir. 1993) (citation omitted). Instead, the Court, after viewing the evidence in the light most
favorable to the United States and drawing all reasonable inferences in the United States’ favor,
determines only whether any rational juror could have found proof of the defendant’s guilt
beyond a reasonable doubt. United States v. M/G Transp. Servs. Inc., 173 F.3d 584, 589 (6th Cir.
1999); United States v. Winston, 37 F.3d 235, 238 (6th Cir. 1994). A juror has “broad discretion
in deciding what inferences to draw from the evidence presented at trial, requiring only that
jurors ‘draw reasonable inferences from basic facts to ultimate facts,’” Coleman v. Johnson, 566
U.S. 650, 655 (2012) (quotation omitted), and “[c]ircumstantial evidence alone is sufficient to
sustain a conviction,” United States v. Ables, 167 F.3d 1021, 1032 (6th Cir. 1999) (citation
omitted). A defendant challenging the sufficiency of the evidence “bears a very heavy burden.”
United States v. Prince, 214 F.3d 740, 746 (6th Cir. 2000) (quotation omitted).
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To obtain a conviction under § 2251(b), the United States has to prove four elements
beyond a reasonable doubt:
1) defendant was the parent, legal guardian, or a person having custody or control
over the victim; 2) the victim was a minor; 3) defendant knowingly permitted the
minor to engage in sexually explicit conduct for the purpose of producing a visual
depiction of such conduct; and 4) the visual depiction was transported in interstate
commerce or the equipment used to create the depiction had been transported in
interstate commerce.
United States v. Lawrence, 391 F. App’x 480, 483 (6th Cir. 2010). Mr. McCall argues that the
evidence is insufficient to support his conviction under the fourth element. As to the fourth
element, the Court instructed the jury as follows:
For you to find the defendant guilty of this crime, you must decide if the
government has proved each and every one of the following elements beyond a
reasonable doubt . . . . Fourth, that the defendant knew or had reason to know that
the visual depiction would be produced or transmitted using materials that were
mailed, shipped or transported in or affecting interstate commerce by any means,
including computer.
[Third Trial Tr., Doc. 199, at 111:9–12, 111:18–22, No. 2:13-CR-00092-JRG]. The Court also
instructed the jury that “interstate commerce” is “the production or transmission of materials
across a state line.” [Id. at 108:12–14].
In arguing that the evidence is insufficient under the fourth element, Mr. McCall
specifically homes in on Mr. Berry’s Kodak Easyshare Camera, which was admitted into
evidence at trial. [First Trial Tr. at 65:20–25, 66:1–5]. According to Special Agent Steve McFall,
who testified at trial, Mr. Berry possibly used this camera to photograph the pornographic images
of Mr. McCall’s children and to upload those images to his computer via the camera’s secure
digital card. [Id. at 88:19–21, 93:17–25, 94:1–16]. Mr. McCall maintains that the evidence is
insufficient to show that he knew or should have known that this camera had a nexus to interstate
commerce because he “had no possible way to obtain knowledge of what, if any camera was
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used.” [Pet. at 4]. Along these lines, he contends that “no evidence was given to show that [he]
was present in the same room” as the pornographic images of his children or “that he viewed any
pictures.” [Id.]. He also contends that “[i]t was never evidenced that any person showed, or
reported to [him] if even a digital camera were [sic] used.” [Id.].
Although the record might not contain direct evidence showing that Mr. McCall knew or
should have known of the interstate nexus to the camera, the record does contain sufficient
circumstantial evidence to this end. See Ables, 167 F.3d at 1032 (stating that “[c]ircumstantial
evidence alone is sufficient to sustain a conviction” (citation omitted)). Mrs. McCall testified
that her husband knew that Mr. Berry was taking nude photos of his oldest daughter, T.G. See
[Second Trial Tr. at 113:6–7 (testifying that Mr. McCall said, “the girls are old enough to make
up their own mind [about whether to pose nude]”)]. T.G.’s own testimony corroborated her
mother’s testimony. See [id. at 38:20–24 (testifying that Mr. McCall instructed her, after they
had left Mr. Berry’s apartment for the first time, “not [to] tell anybody because it could like hurt
the family and everything”)]; see generally Lawrence, 391 F. App’x at 483 (“The testimony of
the victim is, by itself, sufficient evidence for conviction.” (citing United States v. Terry, 362
F.2d 914, 916 (6th Cir. 1966))). T.G.’s younger sister, S.C., also testified that Mr. McCall was
aware that Mr. Berry was taking nude photos:
Q: Ronnie [McCall] just said, get in the truck and we’re going over to David’s
house?
A: Yeah. He said—well, he was like, he won’t hurt you, but he’ll just take photos
of you.
Q: Okay, and what kind of photos did you think they were?
A: Well, I knew they would be naked pictures of me.
Q: Why did you know that?
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A: Because he told me.
Q: Ronnie told you that—
A: Yes.
Q: —the pictures would be naked?
A: Yes.
[Second Trial Tr. at 79:7–19]. In addition, the jury also heard testimony that Mr. McCall, with
the knowledge that Mr. Berry had been taking nude photos of T.G., agreed to allow him to take
T.G. on a weekend trip to Myrtle Beach in exchange for money. [Id. at 47:8–13, 49:5–9, 118:10–
25].
In the light most favorable to the United States, all this evidence—the evidence showing
that Mr. McCall allowed Mr. Berry to travel with T.G. across state lines even while knowing he
had been taking nude photos of her—would enable any rational juror to conclude, beyond a
reasonable doubt, that the evidence was sufficient to satisfy § 2251(b)’s interstate-commerce
nexus. Specifically, any rational juror could reasonably infer that Mr. McCall knew or should
have known that Mr. Berry would continue to produce nude photos of T.G. at the hotel in Myrtle
Beach. See United States v. McCall, 699 F. App’x 452, 455 (6th Cir. 2017) (“[A] juror could
conclude from the evidence presented that McCall knew Berry would create pornographic
images of T.G. when they traveled there[.]”). In fact, T.G. testified that Mr. Berry did take more
nude photos of her in Myrtle Beach. [Second Trial Tr. at 49:12–16]. Any rational juror, in
exercising his or her broad discretion to draw inferences, could also reasonably infer that Mr.
McCall should have known that Mr. Berry would capture those photos with the same equipment
he had used to photograph T.G. at his Tennessee apartment—and for that matter, that he would
return to Tennessee with those illicit photos. And lastly, any rational juror could reasonably infer
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that this equipment was the Kodak Easyshare Camera that Special Agent McFall later discovered
in Mr. Berry’s apartment.
Having now considered the sufficiency of the evidence, the Court will shift its focus to
Mr. McCall’s claim of ineffective assistance of counsel, which, again, it must view through
the prism of the two-part Strickland test. Under the first Strickland prong, Mr. McCall maintains
that his appellate counsel’s performance was constitutionally deficient because she did not
contest the sufficiency of the evidence relating to § 2251(b)’s interstate-commerce nexus. [Pet.
at 4]. Under the second Strickland prong, he contends that he has suffered prejudice because, by
his tally, he “has to serve an additional 360 months” for his conviction under § 2251(b), [id.]—
an argument that, generally speaking, is not without merit, see Thelen, 131 F. App’x at 65–66
(stating that “attorney errors resulting in increased prison time can constitute prejudice” (citing
Glover v. United States, 531 U.S. 198, 203–04 (2001))).
The Supreme Court has “declined to articulate specific guidelines for appropriate attorney
conduct and instead [has] emphasized that ‘[t]he proper measure of attorney performance remains
simply reasonableness under prevailing professional norms.’” Wiggins v. Smith, 539 U.S. 510, 521
(2003) (citation omitted). As a general rule, “tactical choices regarding issues to raise on appeal
are properly left to the sound professional judgment of counsel.” Jennings v. United States, No.
95-4113, 1996 WL 242014, at *1 (6th Cir. May 8, 1996) (citing United States v. Perry, 908 F.2d
56, 59 (6th Cir. 1990)). To the extent that this general rule constitutes a prevailing norm in the
legal profession, Mr. McCall maintains that his appellate counsel’s conduct fell below it. His
appellate counsel, he argues, “knew or should have known that [sufficient] evidence was never
presented at trial” because she “ha[d] the convenience of transcripts.” [Pet’r’s Mem. at 3]. He
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insists that a challenge to the sufficiency of the evidence would have been “clearly meritorious.”
[Id.].
But having addressed the merits of Mr. McCall’s claim here, the Court has dispelled any
argument that it is “clearly meritorious.” Against Mr. McCall’s “heavy burden,” Prince, 214
F.3d at 746 (quotation omitted), the evidence at trial, when the Court views it in the light most
favorable to the United States, leaves Mr. McCall without a reasonable possibility of success on
the merits—let alone a reasonable probability, see Willis, 351 F.3d at 745 (observing that, to
succeed on a claim of ineffective assistance of appellate counsel, a petitioner must show “that
there is ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different’” (quoting Strickland, 466 U.S. at 688, 694)); see also
Thelen, 131 F. App’x at 63 (“A defendant must show that counsel’s representation was so
‘thoroughly ineffective that defeat was ‘snatched from the jaws of victory.’” (quoting West, 73
F.3d at 84)).
Under these circumstances, Mr. McCall’s appellate counsel’s performance—or more
specifically, his appellate counsel’s decision not to challenge the sufficiency of the evidence
relating to § 2251(b)’s interstate-commerce nexus—did not fall below an objective standard of
reasonableness. See Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (“Appellate counsel
cannot be found to be ineffective for ‘failure to raise an issue that lacks merit.’” (quotation
omitted)); see also Fautenberry v. Mitchell, 515 F.3d 614, 642 (6th Cir. 2008) (“The mere fact
that appellate counsel confined their appeal to [a small number of issues] does not establish that
counsel were ineffective[.]”). Under the Sixth Amendment, Mr. McCall therefore fails to meet
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his burden of demonstrating that he suffered an error of constitutional magnitude entitling him
to the extraordinary remedy of § 2255 relief. 9
2. Mr. McCall’s Second Claim of Ineffective Assistance
Next, Mr. McCall argues that his trial counsel and appellate counsel were ineffective
because they did not contest the sufficiency of the evidence as to his conviction under § 2251A.
[Pet. at 5’ Pet’r’s Mem. at 11–14]. But again, this assertion is untrue as it pertains to his trial
counsel, who did challenge the sufficiency of the evidence by moving for acquittal at trial.
[Second Trial Tr. at 195:4–5, 196:5–13]. And as this same assertion applies to his appellate
counsel, it is equally unavailing.
Section 2251A “makes it unlawful to sell or otherwise transfer custody or control of a
minor ‘with the knowledge that, as a consequence of the sale or transfer, the minor will be
portrayed in a visual depiction engaging in, or assisting another person to engage in, sexually
explicit conduct.’” McCall, 699 F. App’x at 454 (quoting § 2251A). Mr. McCall argues “there
was not any evidence that the Defendant had ‘knowledge’ that the visual depiction would be of
‘sexually explicit conduct.’” [Pet. at 9]. But this argument is the precise argument that Mr.
McCall’s appellate counsel raised before the Sixth Circuit. See McCall, 699 F. App’x at 454–55
(“On appeal, McCall argues that the government failed to show that he knew Berry would be
taking sexually explicit videos or photos of T.G. when they arranged for that trip.”).
9
Because Mr. McCall’s claim is purely legal in nature and requires resolution based on the trial record alone,
see Musacchio v. United States, 136 S. Ct. 709, 715 (2016) (stating that a challenge to the sufficiency of the evidence
is a “‘legal’ question” and includes no fact-finding role on a court’s part (quotation omitted)), the Court has no need
to hold an evidentiary hearing, see Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (stating that an
evidentiary hearing is unnecessary if “the record conclusively shows that the petitioner is entitled to no relief”
(quotation omitted)); see also Dempsey v. United States, No. 18-5464, 2018 WL 5819501, at *1, *3 (6th Cir. Aug. 14,
2018) (affirming the district court’s decision that the petitioner’s claims “failed as a matter of law” and therefore did
not warrant an evidentiary hearing).
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In addressing this argument, the Sixth Circuit determined that it lacked merit. Compare
id. at 455 (“Here, the government presented more than adequate evidence from which a rational
juror could draw the reasonable inference that McCall knew Berry would make pornographic
images of T.G. during the trip to Myrtle Beach.” (emphasis added)), with 18 U.S.C. § 2256(8)
(defining the term “child pornography” as photos containing “sexually explicit conduct”). Having
already pursued this argument on appeal, Mr. McCall cannot now exhume it for reconsideration
here in a § 2255 proceeding. See Dado v. United States, No. 17-2013, 2018 WL 1100279, at *2
(6th Cir. Feb. 15, 2018) (“Section 2255 motions may not be used to relitigate issues that have
been considered by a United States Court of Appeals.” (citing DuPont v. United States, 76 F.3d
108, 110 (6th Cir. 1996))). Mr. McCall’s claim is therefore not viable, and he is not entitled to
§ 2255 relief.
C. Certificate of Appealability
Lastly, the Court must determine whether to issue a certificate of appealability, which is
necessary for Mr. McCall to appeal its ruling. 28 U.S.C. § 2253(a), (c)(1)(B). The Court may
issue a certificate of appealability only when a petitioner “has made a substantial showing of
the denial of a constitutional right.” Id. § 2253(c)(2). To make this showing when a court has
rejected a petitioner’s constitutional claim on the merits, that petitioner must demonstrate that
reasonable jurists would find the court’s assessment of those claims “debatable or wrong.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000). Having considered the merits of Mr. McCall’s claims,
in which he alleges several violations of the Constitution, the Court does not conclude that
reasonable jurists would find its rejection of his claims debatable or wrong. The Court will
therefore decline to issue a certificate of appealability to Mr. McCall.
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IV.
CONCLUSION
As the petitioner under § 2255, Mr. McCall fails to meet his burden of establishing that
his conviction and sentence were in violation of the Constitution, or that a fundamental defect
resulted in either a complete miscarriage of justice or an egregious error. Mr. McCall’s Motion
to Vacate, Set Aside or Correct His Sentence [Doc. 1] is therefore DENIED, and his Motion for
Summary Judgement [sic]/Motion for Clarification [Doc. 13] is also DENIED. This case is
hereby DISMISSED with prejudice. The Court will enter an order consistent with this opinion.
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
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