Pumphrey v. USA
Filing
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MEMORANDUM DECISION and Order denying 4 Motion ; denying 5 Motion for Default Judgment. The court also declines to issue Mr. Pumphrey a certificate ofappealability (COA) to appeal this decision. See Order for additional details. Signed by Judge Clark Waddoups on 9/25/15. (jmr)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
WILLIAM CLYDE PUMPHREY,
Petitioner,
MEMORANDUM DECISION
AND ORDER
v.
Case No. 2:14-cv-00144-CW
UNITED STATES OF AMERICA,
Respondent.
Judge Clark Waddoups
Petitioner William Clyde Pumphrey, a federal prisoner proceeding pro se,1 moves under
28 U.S.C. § 2255 to vacate, set aside, or correct his conviction and sentence of ten years’
imprisonment and lifetime supervised release for receipt of child pornography. (Dkt. No. 1). He
has also asked the court to conduct an evidentiary hearing, (Dkt. No. 4), and to enter default
judgment in his favor (Dkt. No. 5). For the reasons that follow, the court DENIES
Mr. Pumphrey’s motions for an evidentiary hearing and for default judgment, and DISMISSES
his habeas petition.
BACKGROUND
Mr. Pumphrey has been the subject of three criminal indictments in federal court; all
related to child pornography charges. For clarity’s sake, the court briefly explains each
indictment to place Mr. Pumphrey’s habeas claim and arguments in context.
In June 2009, a federal grand jury in the United States District Court for the District of
New Mexico returned an indictment charging Mr. Pumphrey with the receipt and possession of
1
Because Mr. Pumphrey proceeds pro se, the court construes his filings liberally. See Yang v. Archuleta,
525 F.3d 925, 927 n.1 (10th Cir. 2008); Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002).
child pornography occurring in March of 2007 (the New Mexico Indictment). As a result of the
New Mexico Indictment, FBI agents arrested Mr. Pumphrey in Salt Lake City, Utah on August
28, 2009. Mr. Pumphrey has remained in federal custody since that date. In May 2010,
Mr. Pumphrey pled guilty under a Rule 11(c)(1)(C) agreement to one count of receipt of child
pornography pursuant to the New Mexico Indictment. In accordance with the terms of the Rule
11(c)(1)(C) plea agreement, the United States District Court for the District of New Mexico
sentenced Mr. Pumphrey to ten years’ imprisonment and ten years of supervised release. (United
States v. Pumphrey, No. 2:13-cr-197-CW, Dkt. No. 59, p. 3–5 (June 17, 2013)).
In 2011, a federal grand jury in the United States District Court for the District of Utah
returned an indictment charging Mr. Pumphrey with the production and possession of child
pornography (the First Utah Indictment). The First Utah Indictment arose from conduct
occurring in approximately August 2008, more than a year after the conduct for which Mr.
Pumphrey was convicted under the New Mexico Indictment. (See United States v. Pumphrey,
No. 2:11-cr-937-TS, Dkt. No. 1 (Nov. 11 2011)). The district court dismissed this indictment
without prejudice due to speedy trial violations. The government then sought, and successfully
obtained, a second indictment in the District of Utah (the Second Utah Indictment). The Second
Utah Indictment recharged Mr. Pumphrey with production and possession of child pornography
based on the 2008 conduct. (United States v. Pumphrey, No. 2:13-cr-197-CW, Dkt. No. 1 (Mar.
3, 2013)). Several months later, the government filed a superseding indictment and added a
charge for receipt of child pornography in addition to the possession and production charges.
(Id., Dkt. No. 25). Ultimately, Mr. Pumphrey pled guilty, again under a Rule 11(c)(1)(C)
agreement, before the United States District Court for the District of Utah to one count of receipt
of child pornography, and the district court sentenced him to ten years’ imprisonment followed
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by a lifetime of supervised release. The court ordered that Mr. Pumphrey be given credit for any
time served, and ordered that his sentence run concurrently with his sentence in the New Mexico
case. (Id., Dkt. No. 57). Mr. Pumphrey did not appeal his conviction or sentence, but he timely
filed a petition for habeas relief pursuant to 28 U.S.C. § 2255.
DISCUSSION
In his § 2255 petition, Mr. Pumphrey asserts that he is entitled to relief on the basis that
the Utah prosecution was vindictive in violation of his due process rights. See United States v.
Goodwin, 457 U.S. 368, 372 (1982) (recognizing that a due process violation occurs in cases of
prosecutorial vindictiveness). According to Mr. Pumphrey, the government’s vindictiveness is
reflected by its decision to charge him after he had already been convicted in New Mexico, and
for charging him with receipt of child pornography after the dismissal of the First Utah
Indictment on speedy trial grounds. Mr. Pumphrey asserts this prosecutorial vindictiveness
requires that his conviction and sentence in the District of Utah be vacated, or, in the alternative,
that his sentence should be modified to “run truly concurrent with the New Mexico sentence with
the same beginning on 28 August 2009.” (Dkt. No. 1, p. 8). Mr. Pumphrey has also asked for an
evidentiary hearing, (Dkt. 4),2 and for default judgment because the government has not
responded to his petition. The court considers, and rejects, each of Mr. Pumphrey’s arguments.
A. Mr. Pumphrey’s Habeas Claim
Turning first to Mr. Pumphrey’s claim for vindictive prosecution, the court finds
Mr. Pumphrey is not entitled to habeas relief. As an initial matter, Mr. Pumphrey is procedurally
barred from bringing this claim in his habeas petition because he did not raise it in the trial court
or on direct appeal. See United States v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004) (“A § 2255
2
Although the document is entitled “Motion for a Court Order,” it in substance reargues the merits of Mr.
Pumphrey’s habeas petition and requests an evidentiary hearing. (See Dkt. No. 4).
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motion is not intended as a substitute for an appeal. Consequently, failure to raise an issue either
at trial or on direct appeal imposes a procedural bar to habeas review.” (internal citation and
quotation marks omitted)). To get around this procedural bar, Mr. Pumphrey must show “cause
for his procedural default and actual prejudice resulting from the alleged errors, or . . . that a
fundamental miscarriage of justice will occur if his claim is not addressed.” United States v.
Allen, 16 F.3d 377, 378 (10th Cir. 1994); see also Magar v. Parker, 490 F.3d 816, 820 (10th
Cir. 2007) (stating that the fundamental miscarriage of justice exception applies to
“extraordinary cases where a constitutional violation has probably resulted in the conviction of
one who is actually innocent” (brackets omitted)). The court has carefully considered
Mr. Pumphrey’s habeas petition and supporting materials, and has located nothing to illustrate
any exceptions to the procedural bar would apply in this case.
Furthermore, Mr. Pumphrey’s claim for relief based on vindictive prosecution fails on the
merits. Mr. Pumphrey is correct that “[w]hile a prosecutor may penalize a defendant for violating
the law, a prosecutor may not punish a defendant for exercising a protected statutory or
constitutional right.” United States v. Contreras, 108 F.3d 1255, 1262 (10th Cir. 1997). But to
prevail on a vindictive prosecution claim, Mr. Pumphrey must allege facts showing actual
vindictive conduct or, at a bare minimum, facts that give rise to a presumption of vindictiveness.
See United States v. Battles, 745 F.3d 436, 459 (10th Cir.), cert. denied, 135 S. Ct. 355 (2014).
This requires Mr. Pumphrey to show a “reasonable likelihood of prosecutorial conduct that
would not have occurred but for hostility or punitive animus towards the defendant because he
exercised his specific legal right.” See United States v. Raymer, 941 F.2d 1031, 1042 (10th Cir.
1991) (internal quotation marks omitted). Mr. Pumphrey fails to meet this burden.
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For example, the fact that Mr. Pumphrey was prosecuted in Utah after he was convicted
in New Mexico does not show vindictiveness because Mr. Pumphrey points to no prior protected
statutory or constitutional right that he exercised after the New Mexico conviction and prior to
the First Utah Indictment. Likewise, the mere fact that the government decided to charge
Mr. Pumphrey with receipt of pornography after he exercised his speedy trial rights is
insufficient to establish a presumption of vindictiveness. See, e.g., United States v. Doran, 882
F.2d 1511, 1521 (10th Cir. 1989) (holding that there was no reasonable likelihood of
prosecutorial vindictiveness where the only evidence of vindictiveness was the fact that the
government filed new charges after the defendant asserted his speedy trial rights, because “proof
of a prosecutorial decision to increase charges after a defendant has exercised a legal right does
not alone give rise to a presumption in the pretrial context”); United States v. Neha, 376
F. Supp. 2d 1230, 1235 (D. N.M. 2005) (holding that the mere timing of a superseding
indictment is insufficient to establish a presumption of vindictiveness). And the relationship
between Mr. Pumphrey’s Speedy Trial Act claim and the addition of the receipt of pornography
charge is all the more attenuated when the court considers the fact that Second Utah
Indictment—as originally filed—contained the same charges as the First Utah Indictment. It was
only after the second Utah prosecution was proceeding through litigation that the government
filed the superseding indictment adding the receipt charge. Mr. Pumphrey has identified nothing
that occurred between the filing of the Second Utah Indictment and the superseding indictment
that would suggest the government’s decision to add the receipt charge was improper. See, e.g.,
Goodwin, 457 U.S. at 382–83 (holding that “the mere fact that a defendant refuses to plead guilty
and forces the government to prove its case is insufficient to warrant a presumption that
subsequent changes in the charging decision are unjustified”); United States v. Chitty, 556 F.
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App’x 739, 742 (10th Cir. 2014) (holding there was no direct or indirect evidence of vindictive
prosecution where the information was filed a year after the defendant exercised his right to
proceed to trial because, given the year-long gap, it was “difficult to believe [the government]
filed the [i]nformation as a result of punitive animus”).3 For these reasons, Mr. Pumphrey has not
established actual or a reasonable likelihood of vindictive prosecution necessary to show a
constitutional violation.
Likewise, the court has little difficulty rejecting Mr. Pumphrey’s request to correct or
modify his sentence to “run truly concurrent with the New Mexico sentence with the same
beginning on 28 August 2009.” (Dkt. No. 1, p. 8). The district court ordered Mr. Pumphrey’s
sentence to run concurrently with the New Mexico sentence, and Mr. Pumphrey’s prison records
reflect that he has received jail credit for the period of time between his August 28, 2009 arrest
and his New Mexico conviction. (Dkt. No. 1-1). Thus, Mr. Pumphrey appears to be receiving all
of the credit to which he is entitled, and he is not entitled to a modification of his sentence. For
all these reasons, Mr. Pumphrey is not entitled to habeas relief.
B. Motion for Default Judgment and an Evidentiary Hearing
Mr. Pumphrey’s requests for default judgment and for an evidentiary hearing also fail. As
illustrated by the discussion above, Mr. Pumphrey has presented no legitimate grounds for
habeas relief, and the government was therefore under no obligation to respond to his petition.
See Garza v. Davis, 596 F.3d 1198, 1205 (10th Cir. 2010) (recognizing that a district court
possesses the discretion either to dismiss a habeas petition if it appears that the petitioner was not
entitled to relief or to order the respondent to file a response); Fed. R. Governing Section 2254
Cases in the U.S. District Courts 4 (explaining that if a district court does not dismiss a habeas
3
Although not binding, the court finds the Tenth Circuit’s unpublished opinions persuasive. See 10th
Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”).
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petition, the court must order the respondent to file an answer, motion or other response within a
fixed time or take other action the judge may order). Thus, Mr. Pumphrey is not entitled to
default judgment for the government’s failure to respond to his petition. Similarly, there is no
basis to hold an evidentiary hearing in the absence of a viable claim for habeas relief. See United
States v. Flood, 713 F.3d 1281, 1291 (10th Cir. 2013) (recognizing that Section 2255(b) requires
an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief”).
CONCLUSION
For the foregoing reasons, the court DISMISSES Mr. Pumphrey’s petition (Dkt. No. 1),
DENIES his request for an evidentiary hearing (Dkt. No. 4), and DENIES his motion for default
judgment (Dkt. No. 5). The court also declines to issue Mr. Pumphrey a certificate of
appealability (COA) to appeal this decision. See 28 U.S.C. § 2253(c) (requiring habeas
petitioners to obtain a COA prior to filing an appeal of the district court’s denial of habeas
relief); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (recognizing that to obtain a COA under
§ 2253(c), the petitioner must make “a substantial showing of the denial of a constitutional right”
and demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” (internal quotation marks omitted)).
SO ORDERED this 25th day of September, 2015.
BY THE COURT:
______________________________
Clark Waddoups
United States District Court Judge
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