United States v. Smith, CRIMINAL NO. 11-0152

UNITED STATES OF AMERICA v. CHRISTOPHER LESLIE SMITH

CRIMINAL NO. 11-0152

CIVIL NO. 6:14-3182

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA

September 14, 2015

JUDGE FOOTE

MAGISTRATE JUDGE HANNA

REPORT AND RECOMMENDATION

Pending before the undersigned for Report and Recommendation is the Motion to Vacate filed pursuant to 28 U.S.C. § 2255 by pro se petitioner, Christopher Leslie Smith ("Smith"). [rec. doc. 199]. The Government has filed an Answer and Memorandum in Support. [rec. doc. 203]. For the following reasons, the undersigned recommends that the Motion be DENIED AND DISMISSED WITH PREJUDICE on the merits and alternatively, because petitioner's sentencing claims are procedurally defaulted.

BACKGROUND

On September 14, 2011, Smith was indicted on one count of conspiracy to receive and distribute child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1) and three counts of distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). [rec. doc. 32]. On June 8, 2012, Smith pleaded guilty before the undersigned Magistrate Judge to conspiracy to receiveand distribute child pornography. [rec. docs. 105 and 110]. Judge Foote accepted the plea on July 8, 2012. [rec. doc. 108]. After preparation of a Pre-Sentence Investigation Report ("PSI"), Smith was sentenced on December 18, 2012 to a below Guidelines range sentence of 168 months imprisonment¹; petitioner's Judgment of conviction was entered on this Court's docket on January 7, 2013. [rec. docs. 159, 166, 163 and 193]. Smith did not directly appeal his conviction or sentence.

On December 13, 2013, Smith filed a Motion seeking appointment of counsel and a 90 day extension of time within which to file a § 2255 Motion to Vacate. [rec. doc. 186]. On December 16, 2013, the undersigned denied Smith's request for appointed counsel, but granted Smith's request for an additional 90 days to file his § 2255 Motion. [rec. doc. 187].

On June 30, 2014, Smith filed another Motion seeking an additional extension of time within which to file a § 2255 Motion to Vacate. [rec. doc. 189]. Judge Foote granted Smith an extension until August 29, 2014. [rec. doc. 190].

On September 2, 2014, Smith filed another Motion seeking appointment of counsel and a third extension of time within which to file a § 2255 Motion to Vacate. [rec. doc. 194]. On September 3, 2014, the undersigned denied Smith'srequest for appointed counsel, but granted Smith's request for additional time, through November 1, 2014, to file his § 2255 Motion. [rec. doc. 195].

The instant motion to vacate was signed by Smith on October 28, 2014 and filed by the Clerk of this Court on November 3, 2014. Petitioner asserts the following claims for relief: (1) that his sentence was unreasonable given his age and because others charged under the same indictment received lesser sentences, and (2) he received ineffective assistance of counsel because counsel advised that, by entering a guilty plea, Smith would receive no more than 12 years, and if he debriefed, 5 to 7 years and maybe less. These claims are discussed below.

LAW AND ANALYSIS

Claims Properly Considered in this §2255 Motion/Scope of Review

A federal prisoner may collaterally attack his conviction and sentence by filing a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Section 2255 provides four grounds justifying relief: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence is otherwise "subject to collateral attack."

While this language appears broad, the scope of review is actually narrow.The Supreme Court and the Fifth Circuit have emphasized repeatedly that "a collateral challenge may not do service for an appeal." United States v. Shaid, 937 F.2d 228, 231 (5^th Cir. 1991) (en banc), cert. denied, 502 U.S. 1076, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992) citing United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584 (1982). Following a conviction and exhaustion or waiver of the right to direct appeal, federal courts presume a defendant stands fairly and finally convicted. United States v. Cervantes, 132 F.3d 1106, 1109 (5^th Cir.) reh. denied (1998) citing Shaid, 937 F.2d at 231-32; Frady, 456 U.S. at 164. As a result, review under § 2255 is ordinarily limited to questions of constitutional or jurisdictional magnitude. Cervantes, 132 F.3d at 1109; Shaid, 937 F.2d at 232; Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468 (1962). However, those issues may not be raised for the first time on collateral review without a showing of both cause for the procedural default and actual prejudice resulting from the error. Cervantes, 132 F.3d at 1109; Shaid, 937 F.2d at 232 citing Frady, 456 U.S. at 166. The only exception to the cause and prejudice requirement is the "extraordinary case . . . in which a constitutional violation has probably resulted in the conviction of one who is actually innocent" Shaid, 937 F.2d at 232; Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649 (1986). To establish actual innocence petitioner must demonstrate that, "in light of all the evidence, it is morelikely than not that no reasonable juror would have convicted him." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611 (1998) (internal quotations and citations omitted). In this context, "actual innocence" means factual innocence, not mere legal insufficiency. Id.

Other types of error may not be raised under § 2255 unless the defendant demonstrates that the error could not have been raised on direct appeal and, if condoned, would result in a complete miscarriage of justice. Cervantes, 132 F.3d at 1109 citing United States v. Pierce, 959 F.2d 1297, 1301 (5^th Cir.), cert. denied, 506 U.S. 1007, 113 S.Ct. 621, 121 L.Ed.2d 554 (1992). The standard to establish a "fundamental miscarriage of justice" is the same as the "actually innocent" standard. United States v. Sorrels, 145 F.3d 744, 749 fn. 3 (5^th Cir. 1998) (citations omitted).

Under the applicable law, the government is correct that petitioner's sentencing claims are procedurally barred and may not properly be considered in this § 2255 Motion as these claims were not presented on direct appeal, and petitioner has failed to demonstrate either cause or prejudice for his default, his actual innocence or that a miscarriage of justice will result by this Court's refusal to consider these claims. See United States v. Faubion, 19 F.3d 226, 232-233 (5^th Cir. 1994) citing United States v. Vaughn, 955 F.2d 367, 368 (5^th Cir. 1992) (percuriam) and United States v. Perez, 952 F.2d 908, 909-10 (5^th Cir. 1992). Petitioner's claims that his sentence was unreasonable given his age and because others charged under the same indictment received lesser sentences are therefore properly denied solely on grounds of procedural default. Nevertheless, all of petitioner's claims will be addressed on the merits.

I. Reasonableness of Sentence

At the time of sentencing, Smith was 48 years old. There is nothing unreasonable about imposing a 14 year sentence on a person Smith's age. Indeed, given Smith's apparent lack of any significant medical issues², it is likely that Smith will complete his sentence and ultimately be released from custody. Moreover, this Court has imposed lengthier sentences on persons the same age and older than Smith when warranted.

During sentencing, Judge Foote expressly acknowledged that while Smith's sentence appeared on its face to be disparate from that given to another defendant in the conspiracy, the difference in sentences was due to factors present in Smith's case that were not present in the co-defendant's case. More specifically, Judge Foote stated that in the co-defendant's case the government did not meet its burdenof proof regarding active participation in the distribution of the online pornography, but the government had satisfied its burden in Smith's case. Moreover, the co-defendant had presented the court with expert testimony demonstrating the defendant's "passive psychological profile and a low risk of acting out." Furthermore, the sentencing enhancement for distribution through a peer-to-peer network in Smith's case, unlike the case of the co-defendant, was not automatic. Finally, Judge Foote cited the violent and sadomasochistic nature of the images in Smith's case as justifying a lengthier sentence, than that imposed on Smith's co-defendant. [rec. doc. 193, 22-23]. Under these circumstances, the undersigned cannot find anything unreasonable about the sentence imposed on Smith in this case.

For these reasons, Smith sentencing claims warrant no relief.

II. Ineffective Assistance of Counsel

Courts can consider claims of ineffective assistance of counsel that are brought for the first time in a § 2255 motion. United States v. Gaudet, 81 F.3d 585, 589 (5^th Cir. 1996). However, petitioner's guilty plea constitutes a waiver of all non-jurisdictional defects in the prior proceedings. United States v. Glinsey, 209 F.3d 386,392 (5^th Cir. 2000); United States v. Bendicks, 449 F.2d 313, 315 (5^th Cir. 1971). "This includes claims of ineffective assistance of counsel exceptinsofar as the ineffectiveness is alleged to have rendered the guilty plea involuntary." Glinsey, 209 F.3d at 392.

To prevail on an ineffective assistance of counsel claim, a petitioner must establish that (1) her attorney's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674 (1984).

The burden is on the petitioner to show that counsel's representation fell below an objective standard of reasonableness. Id. at 688. Judicial scrutiny of coun...