Lockhart v. United States

DEION DEE LOCKHART, Reg. No. 46756-177, Movant, v. UNITED STATES OF AMERICA, Respondent.

EP-17-CV-392-PRM

EP-13-CR-1832-PRM-1

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION

June 19, 2018

MEMORANDUM OPINION AND ORDER

On this day, the Court considered Movant Deion Dee Lockhart's "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" (ECF No. 733)¹ [hereinafter "Motion to Vacate"], Respondent United States of America's "Response" in opposition to the Motion (ECF No. 748), filed on May 10, 2018, and Movant's "Reply" (ECF No. 759), filed June 11, 2018, in the above-captioned cause. After reviewing the record and for the reasons discussed below, the Court concludes that Movant is not entitled to § 2255 relief. The Court will accordingly deny his Motion to Vacate anddismiss his civil cause with prejudice. The Court will additionally deny Movant a certificate of appealability.

I. BACKGROUND AND PROCEDURAL HISTORY

After the National Center for Missing and Exploited Children discovered a suspicious advertisement featuring a sixteen-year-old girl on a website notorious for facilitating prostitution, Federal Bureau of Investigation ("FBI") special agents began collecting Movant's hotel, telephone, Facebook, and e-mail records.² The agents discovered that between May 1, 2012, and March 31, 2013, Movant conspired with others to prostitute girls—ranging in age from fifteen to seventeen years old—in El Paso, Texas. The agents learned that the conspirators pooled their money to rent hotel rooms, solicit clients over the Internet, and transport underage girls to hotel rooms for meetings with clients. They also learned that, in some cases, the conspirators crossed state lines with underage girls.

A grand jury sitting in the El Paso Division of the Western District of Texas returned a "Second Superseding Indictment" charging Movantwith sex trafficking by force, fraud or coercion, in violation of 18 U.S.C. §§ 1591(a)(1), (a)(2) and (b)(2) ("Count One"); aiding and abetting sex trafficking children, in violation of 18 U.S.C. §§ 1591(a)(1), (a)(2) and (b)(2) ("Count Five"); and conspiracy to sex traffic persons, in violation of 18 U.S.C. § 1594(c) ("Count Nine").³ Movant pleaded not guilty and proceeded to trial along with his co-defendants, Timothy McCullouch, Richard Gray, and Emmanual Lockhart.

At the conclusion of the defendants' cases, defense counsel for each defendant made objections to the Court's proposed jury instructions. Among the complaints, McCullouch's counsel objected to the proposed instruction for Counts Five, Six, and Seven of the Second Superseding Indictment pertaining to an element of sex trafficking children, in violation of 18 U.S.C. § 1591.⁴ The element at issue involved § 1591's scienter requirement.⁵ Subsection (a) "allow[ed] the Government toprove scienter by showing that the defendant (1) knew the victim was underage, [or] (2) recklessly disregarded that fact."⁶ Subsection (c) added that "[i]n a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the person . . . the Government need not prove that the defendant knew, or recklessly disregarded the fact, that the person had not attained the age of 18 years."⁷

The Second Superseding Indictment alleged in Count Seven that McCullouch acted "knowingly and in reckless disregard of the fact that the person, A.N.J., had not attained the age of eighteen years . . . in violation of Title 18, United States Code, Sections 1591(a)(1),(2), and (b)(2)," but did not include the "reasonable opportunity" language found in subsection (c).⁸ The proposed jury instruction, however, included the "reasonable opportunity" language:

IF THE GOVERNMENT PROVES BEYOND A REASONABLE DOUBT THAT A

DEFENDANT HAD A REASONABLE OPORTUNITY TO OBSERVE THE PERSON THEY RECRUITED, ENTICED, HARBORED, TRANSPORTED, PROVIDED OBTAINED, OR MAINTAINED, THEN THE GOVERNMENT DOES NOT HAVE TO PROVE THAT THE DEFENDANT KNEW THAT THE PERSON HAD NOT ATTAINED THE AGE OF 18 YEARS.⁹

McCullouch's counsel noted that "[i]n this particular case, there's no indication that the grand jury indicted [McCullouch] under a reasonable opportunity to observe," and argued that the proposed instruction constructively amended the indictment.¹⁰ After hearing the argument, the Court overruled McCullouch's objection.¹¹

The jury found Movant guilty on all charged counts. At his sentencing, the Court declared that under the advisory Sentencing Guidelines, the total offense level was "43. Criminal History Category6, by virtue of the application of the career offender guideline, and the corresponding range will be life on Count 1, life on Count 5, and life on Count 9."¹² The Court added that it had "the discretion to sentence outside of guidelines."¹³ The Court then declined "to have the defendant characterized as a career offender in terms of the guidelines."¹⁴ The Court also determined that it should depart below the guideline range:

I think that a lifetime sentence is excessive. It is beyond the sufficient but not reliable standard that I'm supposed to meet in this case for many of the reasons that are set forth in the sentencing memorandum.

First and foremost, I'm mindful of the youthful age of the offender, notwithstanding what the criminal history is. Second, I am mindful that the defendant has had numerous challenges that are outlined in the sentencing memorandum, and in the PSR.

* * *

This court is going to assess a sentence in this case of 300 months as to Count 1, as to Count 5, and as to Count 9, and that's to run concurrent.¹⁵

On direct appeal, Movant raised three issues.¹⁶ First, he claimed the Court erred when it barred the admission of evidence showing his victim's prior and subsequent acts of prostitution. Second, he asserted the Court erred when it admitted evidence of his gang affiliation. Finally, he argued the evidence was insufficient to support his convictions.¹⁷ The Fifth Circuit Court of Appeals rejected Movant's arguments and affirmed his convictions.¹⁸

The Fifth Circuit did not do the same for McCullouch. It agreed with McCullouch's argument that the Court erred when it overruled his objection to the proposed instruction for Counts Five, Six, and Seven of the Second Superseding Indictment. It vacated and remanded McCullouch's conviction on Count Seven for sex trafficking of children, inviolation of 18 U.S.C. § 1591(a).¹⁹ The Fifth Circuit reasoned that the Court may have constructively amended the indictment when it instructed the jury:

By including the language found in § 1591(c), the district court materially modified an essential element of the indictment by transforming the offense with which the indictment charged McCullouch from one requiring a specific mens rea into a strict liability offense. See United States v. Copeland, 820 F.3d 809, 813 (5th Cir. 2016) (concluding that under § 1591(c), "the Government 'need not prove any mens rea with regard to the defendant's awareness of the victim's age.'" (quoting United States v. Robinson, 702 F.3d 22, 34 (2d Cir. 2012))). Given the district court's inclusion of subsection (c), it is possible that the jury "convict[ed McCullouch] based on an alternative basis permitted by the statute, but not charged in the indictment," United States v. Partida, 385 F.3d 546, 557 (5th Cir. 2004) (citing United States v. Daniels, 252 F.3d 411, 414 (5th Cir. 2001)), a possibility that constructively amended the indictment, see Partida, 385 F.3d at 557 (stating that constructive amendment occurs when jury instructions make it possible for the jury to convict on an alternative basis not alleged in the indictment).²⁰

In his Motion to Vacate, Movant now raises six grounds for relief. First, he asserts that the Government constructively amended the indictment in its closing argument, thereby eliminating the Court's jurisdiction to impose a sentence.²¹ Second, he claims that in light of Mathis v. United States, 136 S. Ct. 2243 (2016), and United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), the Court should resentence him because his conviction for delivery of a controlled substance under Texas Health & Safety Code 481.112(a) no longer qualifies for the career offender enhancement.²² Third, he declares that his trial counsel provided constitutionally ineffective assistance when he failed to object to the jury instruction which constructively amended his indictment.²³ Fourth, he insists that, in light of Descamps v. United States, 570 U.S. 254 (2013), his trial counsel provided ineffective assistance when he did not challenge the career offender enhancement.²⁴ Fifth, he maintainsthat his appellate counsel provided constitutionally ineffective assistance when he failed to raise any claims in his direct appeal.²⁵ Finally, he avers that the prosecution failed to disclose favorable information.²⁶

II. APPLICABLE LAW

After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that the defendant stands fairly and finally convicted."²⁷ A § 2255 motion "provides the primary means of collateral attack on a federal sentence."²⁸ Relief under § 2255 is warranted for errors that occurred at trial or at sentencing,²⁹ and "is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage ofjustice."³⁰ Before a court will grant relief pursuant to § 2255, a movant must establish: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.³¹

Ultimately, the movant bears the burden of establishing his claims of error by a preponderance of the evidence.³² A court...