Green v. United States of America

Filing 22

MEMORANDUM signed by Chief Judge Kevin H. Sharp on 3/27/2017. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DANIEL W. GREEN

)
)
)
)
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v.
UNITED STATES OF AMERICA

No. 3:16-01858
CHIEF JUDGE SHARP

MEMORANDUM
I. Introduction
Pending before the Court is a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or
Correct Sentence (Docket Nos. 1, 8), filed by the Movant/Petitioner, pro se. The Government has
filed a Response (Docket No. 18) in opposition to the Motion.
For the reasons set forth herein, Petitioner’s Motion (Docket No. 1) is DENIED, and this
action is DISMISSED.
II. Procedural and Factual Background
In the underlying criminal case, the Petitioner was charged with two counts of production
of child pornography, in violation of 18 U.S.C. § 2251(a), and one count of receipt of child
pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). (Docket No. 1 in Case No. 3:10-cr00098). The Sixth Circuit described the facts underlying the charges as follows:
In late 2009, Green’s seven- and ten-year-old step-granddaughters told their
grandmother that Green had been molesting them for at least a year. A search of
Green’s home confirmed that Green videotaped and photographed himself
molesting the girls on multiple occasions. The search also revealed that Green
downloaded numerous images and videos depicting the sexual exploitation of
minors.
(Docket No. 170, at 1, in Case No. 3:10-00098); United States v. Daniel W. Green, 608 F. App'x
383, 384, 2015 WL 3559196 (6th Cir. 2015).

On the second day of his trial, after the victims’ grandmother had testified, the Petitioner
pled guilty, without a plea agreement, before now-retired Judge Todd J. Campbell. (Docket Nos.
83, 142, 169 in Case No. 3:10-cr-00098). At the subsequent sentencing hearing, Judge Campbell
determined that the initial sentencing guideline range was life imprisonment, based on
Petitioner’s offense level of 48, reduced to 43 because the Sentencing Table tops out at 43, and
Criminal History Category I. (Docket No. 162, at 3-7, in Case No. 3:10-00098). Because the
statutory maximum for Counts One and Two was 15 years, and the statutory maximum for Count
Three was 20 years, however, the maximum sentence was 960 months, or 80 years. (Id.) After
consideration of the factors set forth in 18 U.S.C. § 3553, Judge Campbell determined that the
sentences on each of the three counts should run consecutively, and imposed a total sentence of
960 months. (Docket Nos. 157, 158, 159, 162 in Case No. 3:10-cr-00098).
The Petitioner appealed the validity of his guilty plea and the reasonableness of his
sentence, and the Sixth Circuit affirmed. (Docket Nos. 160, 170, 175 in Case No. 3:10-cr00098); United States v. Daniel W. Green, supra.
III. Analysis
A. The Petitioner’s Claims
The Petitioner contends that his convictions and sentence should be vacated because he
received the ineffective assistance of trial counsel.
B. The Section 2255 Remedy
Section 2255 provides federal prisoners with a statutory mechanism by which to seek to

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have their sentence vacated, set aside or corrected.1 The statute does not provide a remedy,
however, for every error that may have been made in the proceedings leading to conviction. “‘To
warrant relief under section 2255, a petitioner must demonstrate the existence of an error of
constitutional magnitude which had a substantial and injurious effect or influence on the guilty
plea or the jury's verdict.’” Humphress v. United States, 398 F.3d 855, 858 (6th Cir.
2005)(quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).
An evidentiary hearing is not required if the record conclusively shows that the Petitioner
is not entitled to relief. 28 U.S.C. § 2255(b); Ray v. United States, 721 F.3d 758, 761 (6th Cir.
2013); Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). No hearing is required “if
the petitioner’s allegations ‘cannot be accepted as true because they are contradicted by the
record, inherently incredible, or conclusions rather than statements of fact.’” Id.
The Court has reviewed the pleadings, briefs and records filed in Petitioner's underlying
criminal case, as well as the pleadings, briefs and records filed by the parties in this case. The
Court finds it unnecessary to hold an evidentiary hearing because these records conclusively
establish that Petitioner is not entitled to relief on the issues raised.

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28 U.S.C. § 2255 states, in part:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
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C. Ineffective Assistance of Counsel
In order to prevail on an ineffective assistance of counsel claim, the burden is on the
Petitioner to show: (1) counsel's performance fell below an objective standard of reasonableness;
and (2) actual prejudice resulted from the deficient performance. Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Cullen v. Pinholster, 131 S.Ct. 1388,
1403 (2011); Campbell v. United States, 364 F.3d 727, 730 (6th Cir. 2004).
“The benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial cannot be
relied upon as having produced a just result.” Strickland, 104 S.Ct. at 2052; Ludwig v. United
States, 162 F.3d 456, 458 (6th Cir. 1998). In analyzing trial counsel's performance, the court
must "indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Strickland, 104 S.Ct. at 2065.
In order to establish prejudice, the petitioner must demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id., at 2068. A reasonable probability is “a probability sufficient to undermine
confidence in the outcome.” Id., at 2052. The likelihood of a different result “must be
substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 792,
178 L. Ed. 2d 624 (2011).
Petitioner argues that he received ineffective assistance based on counsel’s failure to: (1)
fully investigate the evidence and possible defenses, and to recognize that there was insufficient
evidence to support his conviction; (2) investigate the questionable investigator on his case; (3)
raise a diminished capacity defense; (4) argue that the plea offered by the Government of 15

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years was never presented in writing; (5) seek an expert witness to offer mitigating evidence; (6)
argue for a three-point reduction for acceptance of responsibility; (7) raise an Eighth
Amendment claim for cruel and unusual punishment; (8) argue that the sentence imposed was
not statutorily mandated to run consecutively; and (9) object to the U.S. Sentencing Guidelines
calculations, and argue that the sentence imposed was “greater than necessary” in violation of 18
U.S.C. § 3553(a).
First, Petitioner argues that trial counsel should have made a motion for judgment of
acquittal under Federal Rule of Criminal Procedure 29 based on the Government’s failure to
present sufficient evidence to support the Petitioner’s convictions on Counts One and Two.
Specifically, the Petitioner contends, the Government failed to prove that Petitioner’s purpose in
enticing or coercing the alleged victims to engage in sexually explicit conduct was to produce
visual depictions of such conduct. (Docket No. 8, at p. 13-16 of 36).
Rule 29 provides that a court may enter a judgment of acquittal after the presentation of
the Government’s case-in-chief at trial, after the close of all the evidence, or after the jury returns
a verdict. Because the Petitioner pled guilty in the underlying criminal case, prior to the close of
the Government’s proof, however, a motion under Rule 29 would not have been appropriate, and
would have been denied. Therefore, the Petitioner was not prejudiced by any failure of trial
counsel to make such a motion. See, e.g., Ludwig v. United States, 162 F.3d at 458 (counsel is
not required to raise meritless arguments to avoid a charge of ineffective assistance of counsel).
The Court notes that, before Judge Campbell accepted the Petitioner’s plea of guilty, he
explained to the Petitioner that, in order to be convicted of Counts One and Two, the
Government would have to prove, among other things, “that you knowingly and intentionally

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employed, used, persuaded, induced, enticed or coerced a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction of that conduct, or attempted to do so.”
(Docket No. 169, at 5, in Case No. 3:10-00098). The Government then explained the factual
basis for the plea, as outlined in its opening statement, and the Petitioner indicated that he was
pleading guilty to all three counts because he was, in fact, guilty as charged. (Docket No. 169, at
14-19, in Case No. 3:10-00098).
Next, the Petitioner argues that trial counsel should have investigated Detective Scott
Levasseur who, he claims, was accused of planting a camera in the Dickson County Jail and of
taking home child pornography. The record reveals, however, that these allegations relating to
Detective Levasseur were pursued by trial counsel prior to trial. Indeed, the Government filed a
motion in limine requesting that the Court prohibit trial counsel from raising these allegations in
the presence of the jury. (Docket No. 115 in Case No. 3:10-00098). At a pretrial hearing on the
motion, trial counsel indicated that she had heard a rumor about these allegations and was
attempting to confirm the rumor. (Docket No. 168, at 19-28, in Case No. 3:10-00098). In ruling
on the motion, Judge Campbell explained that counsel would be required to come forward with
information showing a good faith basis for the truth of the allegations before she would be
permitted to question Detective Levasseur about them at trial. (Id., at 34-35).
The record does not indicate that trial counsel was able to confirm the allegations, and the
Petitioner has not provided any factual support confirming them either. Nor has the Petitioner
suggested any other avenues of investigation trial counsel should have employed to confirm the
allegations. Accordingly, Petitioner has failed to establish that trial counsel was deficient in any

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failure to investigate Detective Levasseur.2
Petitioner next contends that trial counsel was ineffective for failing to raise diminished
capacity under 18 U.S.C. § 17(a)3 as an affirmative defense; for failing to argue that he was
entitled to a departure under Section 5H1.34 of the Sentencing Guidelines for “diminished
capacity;” and for failing to present mitigating evidence and expert mental health testimony at
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To the extent the Petitioner claims a general failure to investigate by trial counsel, his
claim is undermined by his failure to provide any specifics. See, e.g., McConnell v. United
States, 162 F.3d 1162 (6th Cir. Aug., 10, 1998)(conclusory, unsupported allegations are legally
insufficient to support a motion to vacate).
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18 U.S.C. § 17 provides as follows:

(a) Affirmative defense.--It is an affirmative defense to a prosecution under any
Federal statute that, at the time of the commission of the acts constituting the
offense, the defendant, as a result of a severe mental disease or defect, was unable
to appreciate the nature and quality or the wrongfulness of his acts. Mental
disease or defect does not otherwise constitute a defense.
(b) Burden of proof.--The defendant has the burden of proving the defense of
insanity by clear and convincing evidence.

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Section 5H1.3 provides as follows:

Mental and emotional conditions may be relevant in determining whether a
departure is warranted, if such conditions, individually or in combination with
other offender characteristics, are present to an unusual degree and distinguish the
case from the typical cases covered by the guidelines. See also Chapter Five, Part
K, Subpart 2 (Other Grounds for Departure).
In certain cases a downward departure may be appropriate to accomplish a
specific treatment purpose. See § 5C1.1, Application Note 6.
Mental and emotional conditions may be relevant in determining the conditions of
probation or supervised release; e.g., participation in a mental health program (see
§§ 5B1.3(d)(5) and 5D1.3(d)(5)).

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sentencing. Petitioner also suggests that he was not competent to stand trial or enter a guilty plea.
First, the Petitioner has failed to provide any support for his claim that he was
incompetent to stand trial or to enter a guilty plea. The record reveals that, prior to trial, Judge
Campbell granted trial counsel’s motion for funds for a psychiatric expert to explore possible
mental health and diminished capacity defenses for the Petitioner. (Docket Nos. 64, 66 in Case
No. 3:10-00098). There is no further filing in the criminal record with regard to the psychiatric
expert’s evaluation of the Petitioner, and the Petitioner does not suggest that he was deemed
incompetent by the expert but counsel failed to bring that finding to the attention of the Court.
As for his contention regarding an affirmative defense, as discussed above, the Petitioner
pled guilty during the Government’s presentation of proof, and consequently, trial counsel did
not have the opportunity to fully present a defense. Thus, Petitioner has not established that trial
counsel was deficient in that regard.
In terms of sentencing, the record reveals that Petitioner’s mental health history and
records, as well as his substance abuse history, were detailed in the Presentence Investigation
Report. (Docket No. 163, at ¶¶ 71-76, in Case No. 3:10-00098). The record also reveals that
Judge Campbell specifically considered the Petitioner’s age, childhood trauma, and his mental
health and substance abuse history in imposing sentence. (Docket No. 162, at 37-38, 40, in Case
No. 3:10-00098). The Petitioner has not identified or submitted any mitigating evidence that he
contends counsel should have provided at sentencing in addition to that already in the record.
Thus, the Petitioner has failed to established that trial counsel was deficient in failing to obtain
and/or present any such evidence.
With regard to his claim that counsel should have pressed for a departure under Section

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5H1.3, the Petitioner has not submitted any evidence indicating that his mental health issues
were “present to an unusual degree” such that his case is “distinguish[ed] from the typical cases
covered by the guidelines,” as required by Section 5H1.3. Therefore, he has failed to establish
prejudice from any failure of counsel to specifically request a diminished capacity departure at
sentencing.
Petitioner argues that trial counsel was also ineffective at sentencing because she “failed
to argue the United States Sentencing Guidelines calculations, nor did counsel argue that
Petitioner’s sentence was not mandated to run consecutively by statute.” (Docket No. 8, at 27).
With regard to the sentencing guidelines calculations, as discussed above, the Petitioner’s
offense level, as initially calculated, was 48 – five points higher than the highest level in the
Sentencing Table. (Docket No. 162, at 7). Thus, to effect any measurable reduction in the
offense level, counsel would have had to challenge major portions of the sentencing guideline
calculations, and Petitioner has failed to specify the challenges counsel could have made in that
regard. See, e.g., McConnell v. United States, 162 F.3d 1162 (6th Cir. Aug., 10, 1998)
(conclusory, unsupported allegations are legally insufficient to support a motion to vacate). Trial
counsel did argue, however, that Judge Campbell should impose a sentence of 20 years because
the applicable guideline sentence of 960 months (80 years) of imprisonment was greater than
necessary. (Docket No. 162, at 6-8, 21-29, 40, 45 in Case No. 3:10-00098). Petitioner has not
established that counsel was deficient in her representation in that regard.
As for Petitioner’s claim regarding consecutive sentencing, the record reveals that, after
seeking input from counsel for both parties, Judge Campbell determined that the mandatory
minimum statutory sentences for the three counts of conviction were not required to run

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consecutively. (Id., at 26-28). Thus, Petitioner’s contention that counsel failed to make such an
argument is without factual support in the record.
Petitioner also argues that counsel should have requested a three-point reduction for
acceptance of responsibility because he pled guilty before the trial was over, saving the
Government time and expense. The Petitioner’s Presentence Investigation Report did not include
a three-point reduction for acceptance of responsibility under U.S.S.G. § 3E1.15 because the
Petitioner did not plead guilty until after trial began and proof had been presented. (Docket No.
163, at ¶¶ 14, 50, in Case No. 3:10-00098). Trial counsel did not challenge that conclusion at
sentencing. As the record reveals, however, even if the Petitioner had been given credit for
pleading guilty prior to the conclusion of the Government’s case-in-chief, that reduction would
not have lowered his sentencing range under the Sentencing Guidelines because his initial
offense level was 48 and the Sentencing Table tops out at 43. (Docket No. 162, at 6, 17, in Case
No. 3:10-00098). Therefore, the Petitioner has not established that he was prejudiced by any
failure of trial counsel to request a reduction for acceptance of responsibility.

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Section 3E1.1 provides as follows:

(a) If the defendant clearly demonstrates acceptance of responsibility for his
offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level
determined prior to the operation of subsection (a) is level 16 or greater, and upon
motion of the government stating that the defendant has assisted authorities in the
investigation or prosecution of his own misconduct by timely notifying authorities
of his intention to enter a plea of guilty, thereby permitting the government to
avoid preparing for trial and permitting the government and the court to allocate
their resources efficiently, decrease the offense level by 1 additional level.
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Petitioner also argues that trial counsel was ineffective at sentencing for failing to raise
an Eighth Amendment challenge to his sentence as “cruel and unusual punishment.” In order to
determine whether a non-capital sentence violates the Eighth Amendment, the courts are to apply
the “narrow proportionality principle.” United States v. Young, 766 F.3d 621, 625 (6th Cir.
2014)(quoting Graham v. Florida, 560 U.S. 48, 59-60, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010)).
Under that principle, punishment for a crime should be “graduated and proportioned to [the]
offense” but the proportionality required “forbids only extreme sentences that are grossly
disproportionate to the crime.” (Id.) As the Sixth Circuit has explained, “[t]he test is rarely met.”
(Id.)
The Sixth Circuit has also explained that an “an Eighth Amendment challenge must fail if
a defendant receives a sentence within the guideline range, when the guideline range
contemplates the gravity of the offense.” United States v. Abdulmutallab, 739 F.3d 891, 907 (6th
Cir. 2014)(citing United States v. Herrick, 512 Fed.Appx. 534, 538-39 (6th Cir. 2013). In
Herrick, the Sixth Circuit rejected an Eighth Amendment challenge to a sentence of 1,140
months of imprisonment imposed for sexual exploitation of children and distribution of child
pornography.
The Petitioner claims that counsel should have argued that his sentence was extremely
disproportionate in light of his unresolved issues involving social relationships, his mental
health, and his age. The record reveals, however, that Judge Campbell discussed all these issues
in reaching his decision. (Docket No. 162, at 37-38, in Case No. 3:10-00098). Judge Campbell
then went on to explain why he believed the Petitioner’s sentence was not excessive:
First of all, the sentence that has just been imposed is the guideline sentence. And
so the Court determined in part that the relevant conduct and criminal conduct
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was not outside the heartland of the guideline for purposes of a guideline
departure. And the Court also considered all the Section 3553 factors as to
whether there should be a variance. And I considered all the factors that the
parties set out, but I do want to remark that the nature of the criminal conduct was
especially egregious, and there were individual harms to two different victims,
and that certainly counsels against running those two counts one and two
concurrently. In the Court’s view, they need to be consecutive because these are
real girls with real feelings and real broken futures as a result of this criminal
conduct. They are to be treated as individuals, not grouped together as simply a
group casualty. So different victims with different real criminal conduct.
(Id., at 50-51). On appeal, the Sixth Circuit agreed that the sentence was substantively
reasonable. (Docket No. 170, at 3-4, in Case No. 3:10-00098). For these same reasons, the Court
concludes that any Eighth Amendment challenge by trial counsel would have been unsuccessful.
Thus, the Petitioner was not prejudiced by any failure of trial counsel to raise an Eighth
Amendment challenge to the sentence. See, e.g., Ludwig v. United States, 162 F.3d at 458
(counsel is not required to raise meritless arguments to avoid a charge of ineffective assistance of
counsel).
Next, the Petitioner argues that trial counsel failed to secure a copy of a proposed plea
deal in which the Government offered him a 15-year sentence. The Petitioner has not cited any
statute or case law requirement, however, that a plea offer be made in writing. Thus, Petitioner
has not established that counsel was deficient for any failure to secure a written offer.
The Petitioner also claims he “was told by counsel that the government had rejected the
deal but then at sentencing the government stated something contrary to this.” (Docket No. 8, at
27). To the extent the Petitioner is alleging that trial counsel failed to convey a plea offer, the
record does not support such a claim. At sentencing, the Petitioner told Judge Campbell that, at
the beginning of the case, the Government had offered him a plea deal for a 15-year sentence but
he turned it down, and the Government refused to make the offer again. (Docket No. 162, at 4712

48, in Case No.3:10-00098). Counsel for the Government then stated for the record that the offer
had been re-extended prior to trial preparation and the Petitioner had again declined. (Id., at 4950). The Petitioner did not make any statements in response to the Government’s representation,
nor did he suggest that counsel failed to convey any plea offer, or misrepresented the status of
plea negotiations. Cf. Missouri v. Frye, 566 U.S. 133, 132 S.Ct. 1399, 1408, 182 L.Ed.2d 379
(2012)(trial counsel provides ineffective assistance when he or she fails to communicate and
explain a formal plea offer to his or her client in a timely fashion). In any event, Judge Campbell
explained that he would not have accepted a plea agreement for a 15-year sentence, (Id., at 5051) even if the parties had proposed such an offer. Thus, the Petitioner has not established that
trial counsel was deficient with regard to any plea offers.
IV. Conclusion
For the reasons set forth herein, the Court concludes that Petitioner is not entitled to relief
under 28 U.S.C. § 2255, and that Petitioner’s Motion Under § 2255 should be denied and this
action dismissed.
Should the Petitioner give timely notice of an appeal from this Memorandum and Order,
such notice shall be treated as a application for a certificate of appealability, 28 U.S.C. 2253(c),
which will not issue because the Petitioner has failed to make a substantial showing of the denial
of a constitutional right. Castro v. United States, 310 F.3d 900 (6th Cir. 2002).
It is so ORDERED.
______________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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