224 F. Supp.2d 296 (2002) | Cited 0 times | D. Maine | October 21, 2002


Before the Court is Defendant's Motion to Vacate, Set Aside orCorrect Sentence Pursuant to 28 U.S.C. § 2255 (Pleading No. 33).Defendant entered a plea of guilty to knowingly receiving childpornography over the internet in violation of18 U.S.C. § 2252A(a)(2)(A) and (b)(2) (Pleading No. 29). Since hisconviction, the Supreme Court has invalidated certain portionsof the definition of child pornography set forth in18 U.S.C. § 2256(8), referenced in section 2252A.1 Ashcroft v. FreeSpeech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403(2002). Defendant argues that his conviction should be vacatedbecause the statute under which he wascharged and convicted is unconstitutional per the Supreme Courtin Its Ashcroft decision. Memorandum in Support of MotionUnder 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence(Pleading No. 34) at 2 [hereinafter Defendant's HabeasMemorandum]. However, because the Court finds that Defendant isprocedurally barred from bringing this claim on a section 2255motion, Defendant's motion will be denied.2


To be constitutionally valid, a plea of guilty must be"voluntary" and "intelligent." Brady v. United States,397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). Inhis pro se motion for habeas relief, Defendant argues thatbecause the definition of child pornography as it stood at thetime of his guilty plea was later found to be overbroad andunconstitutional, his understanding of the elements of thecharges against him when he entered this plea was incorrect.Defendant's Reply to Government's Response to the Motion toVacate, Set Aside or Correct Sentence Pursuant to28 U.S.C. § 2255 (Pleading No. 47) at 2 [hereinafter Defendant's HabeasReply]. As such, Defendant argues that his plea of guilty wasnot voluntary and intelligent, and he should, therefore, begranted a writ of habeas corpus. Defendant's HabeasMemorandum at 7.

As a threshold matter, the Court must first determine whetherthe ruling in Ashcroft can be retroactively applied toDefendant under the doctrine established by the Supreme Court inTeague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334(1989). See, e.g., Penry v. Lynaugh, 492 U.S. 302, 329, 109S.Ct. 2934, 2952, 106 L.Ed.2d 256 (1989) (abrogated on othergrounds) (under Teague, retroactivity issue is a thresholdmatter on collateral review); Caspari v. Bohlen, 510 U.S. 383,389, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994) (a thresholdquestion in every habeas case is whether the court isobligated to apply the Teague rule to the defendant's claim).Under Teague, a new constitutional rule of criminal proceduremay not be applied retroactively unless it falls within twonarrow exceptions. Teague, 489 U.S. at 310, 109 S.Ct. at 1075.These two exceptions include a rule that (1) "places certainkinds of primary, private individual conduct beyond the power ofthe criminal law-making authority to proscribe," or (2) could beconsidered a "watershed rul[e] of criminal procedure." Id. at311, 109 S.Ct. at 1075-76. However, as the Supreme Court foundin Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct.1604, 1610, 140 L.Ed.2d 828 (1998), a decision discussed atlength infra, the Teague doctrine "by its terms applies onlyto procedural rules," and is, therefore, "inapplicable to thesituation in which [the] Court decides the meaning of a criminalstatute enacted by Congress." The Supreme Court in Ashcroftdid not create a new constitutional rule of criminal procedure;instead, the Court decided that the meaning of the criminalstatute enacted by Congress was unconstitutionally broad, and itstruck down a portion of that statute. As such, the Court findsthat, as in Bousley, the Teague doctrine does not apply inthis instance and, therefore, Defendant's claim is notTeague-barred.3

Although Defendant is not precluded from raising his claim bythe Teague bar, there are still significant procedural hurdlesthat he must overcome. The Supreme Court has strictly limitedthe circumstances under which an individual can attack a guiltyplea on collateral review. See Bousley, 523 U.S. at 621, 118S.Ct. at 1610. ("It is well settled that a voluntary andintelligent plea of guilty made by an accused person, who hasbeen advised by competent counsel, may not be collaterallyattacked") (quoting Mabry v. Johnson, 467 U.S. 504, 508, 104S.Ct. 2543, 2546-47, 81 L.Ed.2d 437 (1984)). Furthermore, "eventhe voluntariness and intelligence of a guilty plea can beattacked on collateral review only if first challenged on directreview. Habeas review is an extraordinary remedy and `will notbe allowed to do service for an appeal.'" Id. (quoting Reed v.Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 2300, 129 L.Ed.2d277 (1994) (citations omitted)). Although Defendant appealed hissentence, he did not also contest the validity of his plea onappeal. Notice of Appeal (Pleading No. 30). Defendant raisesthis claim for the first time by the present section 2255 motionand, therefore, has procedurally defaulted this claim.

The Supreme Court's decision in Bousley dealt with this veryissue. Bousley addressed the circumstances under which anindividual can collaterally attack his guilty plea when,subsequent to the entry of the plea, a change in the law occursthat, if applied to his case, could possibly have altered theoutcome. In Bousley, the defendant had pled guilty to "use" ofa firearm under 18 U.S.C. § 924(c)(1). At the time of his guiltyplea, the definition of the word "use" included the merepossession of a firearm. Subsequent to the entry of thedefendant's plea, however, the Supreme Court decided in Baileyv. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 506, 133L.Ed.2d 472, that section 924(c)(1) required the Government toshow "active employment of the firearm" and not just merepossession in order to prove "use." Like the Defendant in theinstant case, the defendant in Bousley did not contest thevalidity of his plea on appeal, but afterward sought to takeadvantage of the later Supreme Court ruling narrowing thedefinition of "use" by raising this claim in a section 2255motion.

The Supreme Court's reasoning in Bousley is directlyapplicable to the instant case. In Bousley, the Courtreiterated the maxim that where a defendant has procedurallydefaulted a claim by failing to raise it on direct review, theclaim may be raised on a habeas motion only if the defendantcan first demonstrate either "cause" and actual "prejudice,"Bousley, 523 U.S. at 622, 118 S.Ct. at 1611 (citing Murray v.Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 2643-44, 91 L.Ed.2d397 (1986), and Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct.2497, 2506-07, 53 L.Ed.2d 594 (1977)), or that he is "actuallyinnocent." Id. (citing Murray, 477 U.S. at 496, 106 S.Ct. at2649-50, and Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct.2661, 2667-68, 91 L.Ed.2d 434 (1986)).

The Defendant in this case argues that he has shown cause forprocedurally defaulting his claim.4 According toDefendant, because the ruling in Ashcroft that invalidatedportions of the definition of "child pornography" under18 U.S.C. § 2256(8) was not handed down until some nine monthsafter his sentencing, the basis upon which his argument restswas not known to him at that time and, as such, he has cause forfailing to raise the argument on appeal. However, the BousleyCourt made clear what constitutes cause under the cause andprejudice standard for habeas motions, and Defendant does notmeet this standard.

The Bousley Court dismissed as an excuse for default thedefendant's argument that "the legal basis for his claim was notreasonably available to counsel at the time his plea wasentered." Id. Although the Court acknowledged that a claimthat "is so novel that its legal basis is not reasonablyavailable to counsel" may constitute cause for proceduraldefault, id. (quoting Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct.2901, 2910, 82 L.Ed.2d 1 (1984)), it found that the defendant'sclaim in that case did not qualify as such. Id. The Courtpointed out that at the time of the defendant's plea, "theFederal Reporters were replete with cases involving challengesto the notion that `use' is synonymous with mere `possession.'"Id. As such, the defendant's claim was in fact reasonablyavailable to him at the time of his plea.

Likewise, the argument that the statute under which Defendantwas charged and convicted violates the First Amendment to theConstitution was certainly available to Defendant at the time ofhis guilty plea. That precise claim was argued in this verycourt and later on appeal in this circuit. See United States v.Hilton, 999 F. Supp. 131 (Me. 1998), 167 F.3d 61 (1st Cir.1999). In Hilton, the defendant argued that section2252A(a)(5)(B),5 in conjunction with the definition of"child pornography" contained in section 2256(8)(B), was vagueand overbroad by including visual depictions which "appear tobe[] of a minor" in its definition. 999 F. Supp. at 135-36. Thedefendant in Hilton pursued the same argument on appeal. SeeHilton, 167 F.3d at 65. Defendant pled guilty in 2001, and theHilton case was argued before this Court in 1998 and the Courtof Appeals for the First Circuit in 1999; this issue had clearlybeen raised before Defendant entered his plea. Therefore, theunavailability argument is of no help to Defendant inestablishing cause for his default.

The Bousley Court further declared that the apparentfutility of an argument was also not sufficient to constitutecause for default of a claim. "Futility cannot constitute causeif it means simply that a claim was unacceptable to thatparticular court at that particular time." Bousley, 523 U.S.at 623, 118 S.Ct. at 1611 (quoting Engle v. Isaac,456 U.S. 107, 130, n. 35, 102 S.Ct. 1558, 1573, n. 35, 71 L.Ed.2d 783(1982)). The First Circuit has recognizedthat "Bousley made it clear that if an issue has been decidedadversely to an argument in the relevant jurisdiction, and theargument is not made for that reason, that is insufficientreason to constitute cause for a procedural default." Simpsonv. Matesanz, 175. F.3d 200, 211 (1st Cir. 1999). While theCourt recognizes that this logic seems to defy the goal ofjudicial expediency by encouraging litigants "to raise over andover issues seemingly already settled in the circuit," Brachev. United States, 165 F.3d 99, 103 (1st Cir. 1999), it alsorecognizes that it is the rule in force, as mandated by theSupreme Court, and, therefore, must be followed. See also McCoyv. United States, 266 F.3d 1245, 1259 (11th Cir. 2001) ("Unlessand until the Supreme Court overrules its decisions thatfutility cannot be cause, laments about those decisions forcingdefense counsel to file `kitchen sink' briefs in order to avoidprocedural bars . . . are beside the point") (citing UnitedStates v. Smith, 250 F.3d 1073, 1077 (7th Cir. 2001) (Woods,J., dissenting)).

The First Circuit in Hilton in no uncertain terms rejectedthe argument that 18 U.S.C. § 2256(8)(B)'s inclusion of any"visual depiction . . . [that] appears to be[] of a minor" inthe definition of child pornography resulted in a statutoryprovision that was overbroad and in violation of the FirstAmendment. Hilton, 167 F.3d at 73. ("We think it is a logicaland permissible extension of the rationales in [New York v.]Ferber [458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)]and Osborne [v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109L.Ed.2d 98 (1990)] to allow the regulation of sexual materialsthat appear to be of children but did not, in fact, involve theuse of live children in their production"). Nevertheless,according to the Supreme Court in Bousley, this is notsufficient reason to excuse Defendant from raising this claim ondirect review. Although a claim that "is so novel that its legalbasis is not reasonably available to counsel" is cause forprocedural default, Reed, 468 U.S. at 16, 104 S.Ct. at 2910,Bousley holds that "an argument is not unavailable simplybecause it has been rejected by a higher court in a differentcase." Simpson, 175 F.3d at 212. Therefore, Defendant in thiscase cannot show cause for his procedural default.6

The last possible avenue to raising a defaulted claim in asection 2255 motion is when the petitioner "can establish thatthe constitutional error in his plea colloquy `has probablyresulted in the conviction of one who is actually innocent.'"Bousley, 523 U.S. at 623, 118 S.Ct. at 1611 (quoting Murrayv. Carrier, 477 U.S. at 496, 106 S.Ct. at 2649). To establishactual innocence, an individual must show that "it is morelikely than not that no reasonable juror would have foundpetitioner guilty beyond a reasonable doubt." Schlup v. Delo,513 U.S. 298, 327, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995).The actual innocence exception was created by the Court toprevent a "fundamental miscarriage of justice," and was createdwith the understanding that the "exception would remain `rare'and would only be applied in the `extraordinary case.'" Id. at321, 115 S.Ct. at 864. Moreover, actual innocence requires ashowing of "factual innocence, not mere legal insufficiency."Bousley, 523 U.S. at 623, 118 S.Ct. at 1611.

Defendant in this case has not argued that he is actuallyinnocent. He has simply argued that his sentence should bevacated "because the statute under whichhe was charged and convicted is unconstitutional due tooverbreadth. . . ." Defendant's Habeas Memorandum at 2. Heargues that the Government has not met its burden of proofbecause it did not prove that the images that Defendantpossessed were of real children. Defendant's Habeas Reply at2-3. Defendant does not argue, however, that these images werenot, in fact, of real children, and that he is, therefore,actually innocent under the current version of the statute; heargues only that the Government did not prove they were realchildren.7 As elucidated in Bousley, "actual innocence"means factual innocence, not mere legal insufficiency. 523 U.S.at 623, 118 S.Ct. at 1611. Defendant has not met this standardand, hence, cannot be excused for the procedural default of hisclaim.8


For the foregoing reasons, the Court determines that theDefendant in this case has procedurally defaulted his claim ofan uninformed guilty plea, and his Motion to Vacate, Set Asideor Correct Sentence Pursuant to 28 U.S.C. § 2255 is herebyDENIED.


1. At the time of Defendant's plea, 18 U.S.C. § 2256(8) defined"child pornography" as:

any visual depiction, including any . . . computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where —

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or

(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct. . . .

In its ruling, the Court in Ashcroft found provisions (B) and(D) to be unconstitutionally overbroad in violation of the FirstAmendment to the Constitution, and struck them down. Ashcroft,535 U.S. at ____, 122 S.Ct. at 1406.

2. The Court notes as well that Defendant's assertion thatthe entire statute under which he was charged and convicted isunconstitutional is incorrect; the statute still stands, albeitwith a new, narrower definition of child pornography.

3. The Court notes that even if the Teague doctrine didapply, the Ashcroft ruling would fall within Teague's secondexception because it "places certain kinds of private individualconduct beyond the power of the criminal law-making authority toproscribe." Teague, 489 U.S. at 311, 109 S.Ct. at 1075.

4. Defendant also argues that his claim is one that isjurisdictional and that, therefore, his failure to challenge theconstitutionality of the statute in the district court prior tohis plea or on direct appeal does not bar him from raising thischallenge for the first time in his § 2255 motion. Defendant'sHabeas Memorandum at 5. However "a jurisdictional defect isone that calls into doubt a court's power to entertain a matter,not one that merely calls into doubt the sufficiency or quantumof proof relating to guilt." United States v. Valdez-Santana,279 F.3d 143, 146 (1st Cir. 2002) (quoting United States v.Cordero, 42 F.3d 697, 699 (1st Cir. 1994)). As noted earlier,only certain provisions of the relevant statute were struck downin Ashcroft; Defendant can thus still be prosecuted under thisstatute, with the Court retaining full jurisdiction to reviewany convictions thereunder.

5. Section 2252A(a)(5)(B) proscribes the possession ofchild pornography, while section 2252A(a)(2)(A), the provisionto which Defendant pled guilty, covers the receipt of childpornography. However, both provisions cite to section 2256(8)for the definition of child pornography and, therefore, are nottreated differently for purposes of determining the definition'sconstitutionality.

6. Because Defendant cannot show cause for his proceduraldefault, it is unnecessary to examine the prejudice prong ofthis standard.

7. In United States v. Beeler, 2001 WL 832357, at *7 (Me.July 20, 2001), the Magistrate Judge interpreted a § 2255 motionas asserting an actual innocence claim even though the petitiondid "not use[] the magic words `actual innocence;'" the courtruled that because the movant was pro se, his argument thatthe Government could not prove facts that would sustain certainelements of his conviction was sufficient to show that he wasmaking an actual innocence claim. The Court notes that in thiscase, Defendant and his counsel have not asserted any actualinnocence claim in any pleadings subsequent to the original prose § 2255 motion. Most significantly, this argument was notmade by counsel in Defendant's Habeas Reply. Therefore, therecord does not show the Defendant to be making an actualinnocence claim.

8. It is worth noting that the Court has seen the actualpictures at issue in this case and, based on its review of thesephotos, can safely conclude that Defendant would not be entitledto application of the actual innocence exception even if hewere, in fact, making that claim.

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