McCall v. United States

RONNIE LEE MCCALL, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 2:18-CV-00098-JRG-CRW

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE

May 7, 2020

MEMORANDUM OPINION

This matter is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct His Sentence [Doc. 1], Petitioner's Pro Se Memorandum in Support of the Instant Petitioner's Motion Pursuant to 28 U.S.C. § 2255 [Doc. 2], and Petitioner's Motion for Summary Judgement [sic]/Motion for Clarification [Doc. 13]. For the reasons herein, the Court will deny Petitioner's motions.

I. BACKGROUND

In 2011, Ronnie and Connie McCall had custody over four minor children, and David Berry, the manager of a local market, asked the McCalls whether they would allow their children to do "modeling" for him in exchange for cash. [Sixth Circuit Op., Doc. 201, at 1, No. 2:13-CR-00092]. After agreeing to this proposition, the McCalls, on dozens of occasions, sent their girls to Mr. Berry's apartment, where Mr. Berry took nude photos of them and raped them. [Id. at 1-2]. For roughly eighteen months, their children endured Mr. Berry's abuse, and during this timeframe, the McCalls—while knowing that Mr. Berry was taking nude photos and having sex with their children—gave him permission to take their oldest daughter, T.G., on a weekend trip to Myrtle Beach, South Carolina. [Id. at 2]. In Myrtle Beach, Mr. Berry, as he had done on nearly forty other occasions, took nude photos of T.G. and had sex with her. [Id.]. Afterwards, Mr. Berry gave $800 to T.G., who then surrendered the money to Mr. McCall. [Id.]. Later, T.G. alerted authorities about Mr. Berry's abuse, and after searching his apartment, they discovered condoms, lubrication, a Kodak Easyshare Camera, and more than 300 images of child pornography on his computer. [First Trial Tr., Doc. 197, at 65:13-19, 88:15-21, No. 2:13-CR-00092]. Mr. Berry committed suicide the next day, and after the McCalls attempted to flee to Canada, authorities apprehended them. [Sixth Circuit Op. at 2].

A federal jury later convicted Mr. McCall on four counts: (1) selling a child by a parent for purposes of producing child pornography, in violation of 18 U.S.C. § 2251A; (2) producing child pornography, in violation of 18 U.S.C. § 2251(a); (3) producing child pornography by a parent in violation of 18 U.S.C. § 2251(b); and (4) using a facility of interstate commerce to coerce a child to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). [Indictment, Doc. 3, at 1-3, No. 2:13-CR-00092; Jury Verdict Form, Doc. 145, at 1-3, No. 2:13-CR-00092]. On June 6, 2016, the Court sentenced Mr. McCall to a life term of imprisonment, and it entered judgment against him on June 20, 2016. [J., Doc. 182, at 1-4, No. 2:13-CR-00092].

Mr. McCall appealed his conviction—only as it related to § 2251A—and his sentence, but the Sixth Circuit Court of Appeals rejected his appeal, and on July 14, 2017, it issued its mandate. [Mandate, Doc. 202, No. 2:13-CR-00092]. On June 18, 2018, Mr. McCall filed a petition to vacate, set aside, or correct his sentence under § 2255.¹ In his petition, he collaterally attacks his conviction and sentence on multiple grounds, arguing that (1) the United States lackedsufficient evidence to prove his guilt under §§ 2251(a), 2251(b), and 2422(b); (2) § 2251(a) is unconstitutional; and (3) his trial counsel and appellate counsel were ineffective. [Pet. at 4-10].² After Mr. McCall filed his § 2255 petition, the Court ordered a response from the United States. [Order, Doc. 4, at 1]. Although the United States, in 2018, twice moved for an extension of time in which to file a response—both of which the Court granted—it did not file one until roughly a month ago. [Order Granting Extension, Doc. 8., at 1; Second Order Granting Extension, Doc. 10, at 1; United States' Resp., Doc. 21].³

Recently, the Court ordered Mr. McCall to show cause as to why the doctrine of procedural default does not preclude it from reaching the merits of his claims. [Show-Cause Order, Doc. 17, at 1]. Mr. McCall has responded to the Court's show-cause order. [Pet'r's Resp., Doc. 20]. Having carefully reviewed Mr. McCall's response and his petition, the Court is now prepared to rule on his claims.

II. STANDARD OF REVIEW

Under § 2255, "[a] prisoner in custody under sentence of a [federal] court . . . claiming the right to be released . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). A court must vacate and set aside a sentence if itconcludes that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." Id. § 2255(b). To warrant relief for a denial or infringement of a constitutional right, a petitioner has to establish an "error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). To warrant relief for a non-constitutional claim, a petitioner must establish that a fundamental defect in the proceeding resulted in a complete miscarriage of justice or an egregious error that deprived him of "the rudimentary demands of fair procedure." Reed v. Farley, 512 U.S. 339, 354 (1994); see Grant v. United States, 72 F. 3d 503, 505-06 (6th Cir. 1996).

In sum, "[a] prisoner seeking relief under § 2255 'must allege as a basis for relief: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (quotation omitted). In support of one of these three bases for relief, a petitioner's allegations must consist of sufficient facts showing she is entitled to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972). "Generally, courts have held that 'conclusory allegations alone, without supporting factual averments, are insufficient to state a valid claim under § 2255.'" Jefferson v. United States, 730 F.3d 537, 547 (6th Cir. 2003) (quotation and citation omitted). And similarly, if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," she will not receive an evidentiary hearing. Smith v. United States, 348 F.3d 545, 550 (6th Cir. 2003) (quoting Fontaine v. United States, 411 U.S. 213, 215 (1973)).

A petitioner has the burden of proving that "an error has occurred that is sufficiently fundamental to come within" one of the three "narrow limits" for § 2255 relief. United States v. Addonizio, 442 U.S. 178, 185 (1979); see Pough, 442 F.3d at 964. The standard that governs collateral review under § 2255, as opposed to direct review on appeal, is significantly higher. United States v. Frady, 456 U.S. 152, 162-66 (1982); see Hampton v. United States, 191 F.3d 695, 698 (6th Cir. 1999) ("Habeas review is an extraordinary remedy and 'will not be allowed to do service for an appeal.'" (quoting Reed, 512 U.S. at 354)). This is so because "[t]he reasons for narrowly limiting the grounds for collateral attack on final judgments are well known and basic to our adversary system." Addonizio, 442 U.S. at 184 (footnote omitted); see Custis v. United States, 511 U.S. 485, 497 (1994) ("'[I]nroads on the concept of finality tend to undermine confidence in the integrity of our procedures' and inevitably delay and impair the orderly administration of justice." (quotation omitted)); Parke v. Raley, 506 U.S. 20, 29 (1992) (referring to a "presumption deeply rooted in our jurisprudence: the 'presumption of regularity' that attaches to final judgments" (quotation omitted)).

III. ANALYSIS

The Court begins its analysis by addressing Mr. McCall's motion for summary judgment, in which he argues that the United States' failure to timely respond to his petition entitles him to a walkover: "[T]he instant Petitioner's Motion pursuant to 28 U.S.C. § 2255 is wholly and truly uncontested. As such, the Court must . . . enter a judgment in favor of the Petitioner." [Pet'r's Mot. Summ. J. at 1]. In his recently filed petition for writ of mandamus [Doc. 16], however, Mr. McCall maintains that he has now "realiz[ed]" a motion for summary judgment is "not a valid Motion under § 2255" and indicates that he has filed, in its place, a motion for default judgment.[Id. at 5].⁴ Without citing case law, Mr. McCall argues that "some courts have allowed the useage [sic] of [a motion for default judgment] in some circumstances in § 2255 motions." [Id.].

But this argument is not an accurate characterization of the law, at least not as the law applies to § 2255 proceedings in this circuit. See United States v. Bawgus, 782 F. App'x 408, 409-10 (6th Cir. 2019) ("[The petitioner] alternatively argues that the government's failure to respond to a district court order [requiring a response] . . . bars it from challenging his § 2255 relief. But whether the government appropriately responded to that order does not discharge [the petitioner's] burden to prove entitlement to habeas relief." (citations omitted)); Allen v. Perini, 424 F.2d 134, 138 (6th Cir. 1970) ("The failure of State officials to file a timely return does not relieve the prisoner of his burden of proof. Default judgments in habeas corpus proceedings are not available as a procedure to empty State prisons[.]" (citations omitted)); United States v. Mitchell, No. 15-20609, 2019 WL 1931988, at *3 (E.D. Mich. Apr. 30, 2019) (stating that a "[d]efault judgment is not appropriate in habeas cases—and, by extension of reasoning, to § 2255 cases—'on the ground that state officials fail to file a timely response to a petition'" (...