Joshi v. United States

1

ASHU JOSHI, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 4:21-CV-01253 JAR

United States District Court, E.D. Missouri, Eastern Division

August 21, 2023

MEMORANDUM AND ORDER

JOHN A. ROSS, UNITED STATES DISTRICT JUDGE.

This matter is before the Court on Petitioner Ashu Joshi's amended motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Doc. 10). For the reasons set forth below, the Court will deny the motion without an evidentiary hearing. Joshi's motion for leave to amend his habeas petition to add a new basis for relief will also be denied. (Doc. 23).

BACKGROUND

In October 2018, Joshi was charged with production distribution, and receipt of child pornography (18 U.S.C § 2251(a) and § 2252A(a)(2)) and transportation of a minor across state lines to engage in criminal sexual activity (18 U.S.C. § 2423(a)) in connection with his interactions with a 16-year-old girl from Kentucky (“M.D.”).^[1] He was 46 at the time. In a binding plea agreement pursuant to Rule 11(c)(1)(C), Fed. R. Crim. P. Joshi pleaded guilty to the distribution charge (Count III) and agreed to a sentence of 96 months in prison and restitution of $800,000. (Crim. Doc. 265). In exchange for his plea, the Government dismissed the remaining charges. Pursuant to the agreement, Joshi waived his rights to appeal as well as his rights to challenge the conviction except for claims of prosecutorial misconduct and ineffective assistance of counsel. He also waived his right to obtain information about the Government's investigation pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The agreement deferred to the Court to determine the terms of supervised release, with a duration anywhere between five years to life. The agreement also stated that Joshi was fully satisfied with his counsel's representation and that his plea was voluntary.

At the guilty plea hearing, Joshi confirmed his satisfaction with counsel and his understanding of the plea agreement and associated waivers. (Crim. Doc. 307). He confirmed that the allegations set forth in the plea agreement were true and correct. Based on Joshi's statements, the Court accepted his plea of guilty. At a separate sentencing hearing, Joshi again admitted the facts set forth in the plea agreement and expressed remorse for his conduct. (Crim. Doc. 308). Pursuant to the plea agreement, the Court sentenced Joshi to 96 months in prison and ordered him to pay $800,000 in restitution. After considering all the facts and circumstances of this particular case, and over defense counsel's objections, the Court ordered Joshi's prison sentence to be followed by a life term of supervised release.

Joshi timely filed and later amended a motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, asserting five claims of ineffective assistance of counsel. (Doc. 10). As further discussed below, Joshi asserts that his lawyers were ineffective for: (1) failing to raise the argument that Mo. Rev. Stat. § 566.061 (criminalizing sex with a minor) is unconstitutional as applied to him because he and M.D. were purportedly married at the time in question; (2) failing to advise him of the possibility of a lifetime of supervised release; (3) failing to properly construe the statutory element of knowledge; (4) filing and later withdrawing a deficient pre-trial motion to dismiss arguing that the charges were unconstitutional; and (5) improperly advising Joshi to waive his FOIA rights.

After Joshi filed his habeas motion, M.D. filed a separate civil lawsuit against him seeking statutory and punitive damages under 18 U.S.C. § 2255.^[2] In light of this lawsuit, Joshi seeks to amend his habeas motion to add a new claim of ineffectiveness based on his lawyers' failure to advise him of the possibility of civil liability as a consequence of his guilty plea.

LEGAL STANDARDS

Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek habeas relief “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.” 28 U.S.C. § 2255(a). In order to obtain relief under § 2255, a movant must establish a constitutional or federal statutory violation constituting “a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003).

It is well-established that a petitioner's ineffective assistance of counsel claim is properly raised under § 2255 rather than on direct appeal. United States v. Cordy, 560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective assistance of counsel is on the movant. United States v. White, 341 F.3d 673, 678 (8th Cir. 2003).

To prevail on an ineffective assistance of counsel claim, a defendant must show that counsel's performance was deficient, and the deficient performance prejudiced the defense. Stricklandv. Washington, 466 U.S. 668, 687-88 (1984). A movant must meet both prongs of the Strickland test. Anderson v. United States, 393 F.3d 749, 753 (8th Cir. 2005). The court's review of counsel's performance is “highly deferential,” Strickland, 466 U.S. at 689, and the court presumes that “counsel's conduct falls within the wide range of reasonable professional assistance,” Anderson, 393 F.3d at 753. To show prejudice in the plea context, “a defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); Matthews v. United States, 114 F.3d 112, 114 (8th Cir. 1997).

The Court must hold an evidentiary hearing on a movant's habeas claims unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. 28 U.S.C. § 2255(b). A movant is entitled to an evidentiary hearing when the facts alleged, if true, would entitle the movant to relief. Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996). The Court may dismiss a claim without an evidentiary hearing if the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based. Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994).

DISCUSSION

Constitutionality As Applied

In November 2019, in the underlying case, Joshi's counsel filed a 12-page motion to dismiss the indictment (Crim. Doc 118) containing argument and legal authority on five theories: (1) the charges were unconstitutional “as applied” to Joshi because he and M.D. were married at the time in question, and M.D. was old enough to consent under Kentucky law. Ky. Rev. Stat. § 510.020; (2) the charges were unconstitutional because the federal criminal statutes at issue did not contain an exception for married minors; (3) the charges were unconstitutional “as applied” because Joshi's conduct did not affect interstate commerce; (4) Count I (production of child pornography) was unconstitutional “as applied” because Joshi's conduct was not “for the purpose” of producing or possessing images of a minor engaged in sexually explicit conduct; and (5) Count II (transporting a minor across state lines with the intent to engage in criminal sexual activity) was unconstitutional “as applied” because the married couple's activity was legal.

In response to the motion (Crim. Doc. 199), the Government supplied persuasive authority holding that child pornography enjoys no constitutional protections. United States v. Wilson, 565 F.3d 1059, 1069 (8th Cir. 2009) (rejecting a mistake-of-age defense); United States v. Buttercase, 2014 WL 7331923, at *5 (D. Neb. Dec. 19, 2014) (citing Wilson and rejecting a marriage defense). The Government further noted that the Internet is a means of interstate commerce, and Joshi's purpose and intent were questions for the jury. The Government denied the existence of a valid marriage based on the timing and circumstances of the purported decree and M.D.'s statements. Joshi's motion remained pending until April 2020, when he withdrew it in light of the parties' plea agreement. (Crim. Doc. 240).

Joshi now asserts that his lawyers were ineffective for abandoning his defense theory that the charges against him were unconstitutional as applied to the facts of this case. Joshi's habeas motion contains multiple claims under this heading. First, Joshi reprises verbatim several pages of defense counsel's motion to dismiss to re-argue that the charges against him were unconstitutional because he and M.D. were married. Joshi further asserts that the Government engaged in prosecutorial misconduct by attempting to verify or impeach the evidence of the marriage, and that defense counsel was ineffective for failing to object to the violation of his constitutional rights. Joshi also claims that he never engaged in oral sex with M.D. in Missouri and that defense counsel was ineffective for failing to object to the Government's account of the facts during the plea hearing.

These claims are facially inadequate and also refuted by the record. As the Government notes in its response, counsel did advance the legal arguments that Joshi now accuses counsel of failing to raise. Joshi's assertion that counsel failed to understand the law as applied to the facts of his case is belied by substance of the motion to dismiss. (Crim. Doc. 118). And counsel did not “abandon” these arguments, as Joshi suggests; rather, the motion to dismiss became moot and was therefore withdrawn when the parties reached a plea agreement. (Crim. Doc. 240). The Court finds counsel's performance entirely competent.^[3] Further,...