Becht v. U.S.

Decision Date07 April 2005
Docket NumberNo. 03-2708.,03-2708.
PartiesJason Albert BECHT, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Lisa D. Hill, argued, Minneapolis, MN, for appellant.

Michelle E. Jones, argued, Minneapolis, MN, for appellee.

Before COLLOTON, LAY, and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.

Jason Albert Becht was convicted of one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and one count of distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(1). His conviction was affirmed on appeal, United States v. Becht, 267 F.3d 767 (8th Cir.2001), and it is final. Becht petitioned for relief under 28 U.S.C. § 2255, claiming that his conviction must be vacated because, in light of the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 531 U.S. 1124, 121 S.Ct. 876, 148 L.Ed.2d 788 (2001), the conviction was based upon a statute that made criminal certain activities protected by the First Amendment. Becht supplemented his petition to include a claim of ineffective assistance of appellate counsel. The district court1 denied his petition, and we affirm.

I.

Becht owned and operated a website displaying and disseminating child pornography, which was discovered by law enforcement authorities. Becht was prosecuted for possession and distribution of child pornography under the Child Pornography Prevention Act of 1996 ("CPPA"), as codified at 18 U.S.C. § 2252A. In accordance with the CPPA, the jury instruction under which Becht was convicted defined "child pornography" as a "visual depiction [that] is, or appears to be, of a minor engaging in sexually explicit conduct." (Final Jury Instruction No. 16).2

Becht's trial counsel, citing Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir.1999), objected to the instruction on the ground that the "appears to be" language of the CPPA infringed upon conduct protected by the First Amendment. The district court, relying on United States v. Hilton, 167 F.3d 61 (1st Cir.1999), and United States v. Acheson, 195 F.3d 645 (11th Cir.1999), concluded that the statute was constitutional, because it was narrowly tailored to further a compelling governmental interest. Becht was convicted and sentenced to ninety-seven months' imprisonment, two years of supervised release, and a $200 special assessment.

On December 28, 2000, Becht retained appellate counsel. On January 22, 2001, the Supreme Court granted certiorari to review the Ninth Circuit's decision on the constitutionality of the CPPA, see Ashcroft v. Free Speech Coalition, 531 U.S. 1124, 121 S.Ct. 876, 148 L.Ed.2d 788 (2001), and Becht asked his counsel to raise the constitutional issue on his direct appeal to this court. When counsel declined to do so, Becht filed an unsuccessful pro se motion to dismiss his attorney and to be assisted by new counsel. In his response to that motion, counsel explained that the appellate strategy was the result of a review of the transcript, a discussion with Becht's trial counsel, counsel's own legal research, and consultation with other appellate counsel.

Becht's counsel eventually filed an appellate brief, which did not raise the constitutionality of the CPPA or the jury instruction defining "child pornography." The brief did argue that the district court's admission of thirty-nine images of child pornography unfairly prejudiced Becht's defense in violation of Federal Rule of Evidence 403, and that the government offered insufficient evidence to support the jury's verdict of guilty. A panel of this court rejected those arguments. Becht, 267 F.3d 767.

On April 16, 2002, the Supreme Court affirmed the Ninth Circuit in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), holding that the "appears to be" language of the CPPA was overbroad and unconstitutional under the First Amendment. Id. at 258, 122 S.Ct. 1389. The Court also remanded a number of cases for further consideration in light of Free Speech Coalition. See Mento v. United States, 535 U.S. 1014, 122 S.Ct. 1602, 152 L.Ed.2d 617 (2002); Fox v. United States, 535 U.S. 1014, 122 S.Ct. 1602, 152 L.Ed.2d 617 (2002); O'Connor v. United States, 535 U.S. 1014, 122 S.Ct. 1603, 152 L.Ed.2d 617 (2002); Tampico v. United States, 535 U.S. 1014, 122 S.Ct. 1602, 152 L.Ed.2d 617 (2002); Snow v. United States, 535 U.S. 1014, 122 S.Ct. 1603, 152 L.Ed.2d 618 (2002); Peebles v. United States, 535 U.S. 1014, 122 S.Ct. 1603, 152 L.Ed.2d 618 (2002). Becht neither argued the constitutionality of the CPPA on direct appeal nor petitioned for certiorari on the issue, so his case was not among those remanded for further consideration.

One month later, on May 17, 2002, Becht moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Becht argued that his conviction should be vacated because the law under which he was convicted was facially invalid under the First Amendment. Becht supplemented his petition with a claim that his appellate counsel was ineffective for failing to raise the constitutional challenge to the CPPA on direct appeal despite Becht's specific request.

The district court denied Becht's § 2255 motion, but granted a certificate of appealability in accordance with 28 U.S.C. § 2253(c)(1)(A) and Federal Rule of Appellate Procedure 22(b)(1). The certificate framed the issue for appeal as follows: "Did Petitioner receive ineffective assistance of counsel on direct appeal because his attorney did not challenge the validity of his guilty plea on the grounds that 28 U.S.C. § 2256(8)(B) was unconstitutional?"

II.

Becht's § 2255 motion raised both a claim that his conviction was obtained in violation of the First Amendment, and an assertion that his appellate counsel's ineffective assistance resulted in a violation of the Sixth Amendment. The government argued that Becht had procedurally defaulted his First Amendment claim by failing to raise it on direct appeal. The district court's order denying Becht's § 2255 motion discussed Becht's allegation of ineffective assistance only in the course of considering whether Becht had demonstrated "cause" and "prejudice" to excuse his procedural default of a First Amendment challenge to the CPPA. The district court's certificate of appealability, however, frames the issue for appeal as whether Becht received "ineffective assistance of counsel on direct appeal because his attorney did not challenge the validity of his guilty plea on the grounds that 28 U.S.C. § 2256(8)(B) was unconstitutional?"

The certificate of appealability is confusing for two reasons. First, it refers to the validity of Becht's "guilty plea" when Becht pleaded not guilty and was convicted after a jury trial. Second, the certificate does not specify whether it is limited to an appeal raising Becht's Sixth Amendment claim that he was deprived of ineffective assistance of counsel on direct appeal, whether it is limited to an appeal raising Becht's First Amendment claim (as to which the ineffective-assistance claim is a necessary predicate to excuse a procedural default), or whether it is intended to encompass both claims. We believe that the certificate of appealability is best construed as authorizing an appeal of both constitutional claims, because a decision on the issue of ineffective assistance of counsel is necessary to resolution of both claims. See McCoy v. United States, 266 F.3d 1245, 1248 n. 2 (11th Cir.2001); Jackson v. Gammon, 195 F.3d 349, 353 (8th Cir.1999). We assume that the reference to a "guilty plea" was the result of an oversight, and we construe the certificate to encompass the question whether Becht's appellate counsel was ineffective in failing to challenge the validity of Becht's conviction by jury.

To succeed on his First Amendment claim, Becht must show that the claim was not procedurally defaulted.3 "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal quotations and citations omitted). Becht does not claim actual innocence, and so we consider only whether he has demonstrated both cause and actual prejudice.

Ineffective assistance of appellate counsel may constitute cause and prejudice to overcome a procedural default. Boysiewick v. Schriro, 179 F.3d 616, 619 (8th Cir.1999). Thus, the condition Becht must meet to proceed on his First Amendment claim is identical to the merits of his Sixth Amendment claim. To establish ineffective assistance of counsel, both as an independent claim and as cause and prejudice to excuse a procedural default, Becht must show that "counsel's performance was deficient" and "that counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In other words, Becht must establish first that his "counsel's assistance fell below an objective standard of reasonableness in that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would use under like circumstances; and second, that the deficient performance prejudiced [his] defense." United States v. Acty, 77 F.3d 1054, 1059 (8th Cir.1996) (internal quotations omitted).

"Our review of counsel's performance is highly deferential," Sherron v. Norris, 69 F.3d 285, 290 (8th Cir.1995), and "[i]t is the defendant's burden to overcome the strong presumption that counsel's actions constituted objectively reasonable strategy under the circumstances." Schumacher v. Hopkins, 83 F.3d 1034, 1037 (8th Cir.1996). In this case, however, Becht's appellate counsel failed to raise the First Amendment issue...

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