Cline v. Ormond

• Decision Date: 01 March 2019
• Docket Number: NO. 3:15-cv-00950,3:15-cv-00950
• Parties: JOSHUA M. CLINE, Petitioner, v. J. RAY ORMOND and HERBERT H. SLATERY, III, Respondents.
• Court: U.S. District Court — Middle District of Tennessee

JOSHUA M. CLINE, Petitioner, v. J. RAY ORMOND and HERBERT H. SLATERY, III, Respondents.

NO. 3:15-cv-00950

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

March 1, 2019

JUDGE CAMPBELL

MEMORANDUM

Petitioner is an inmate of the Petersburg Federal Correctional Institution in Petersburg, Virginia, where he is serving a federal sentence imposed by this Court and concurrently serving an effective Tennessee sentence of 50 years for two counts of rape of a child. He has filed a pro se Amended Petition under 28 U.S.C. § 2254 for the writ of habeas corpus to challenge his state convictions and sentences and has paid the filing fee. The Court will deny his petition for the reasons set forth below.

I. BACKGROUND AND PROCEDURAL HISTORY

On January 21, 2009, a Magistrate Judge of this Court issued a warrant for Petitioner's arrest on the basis of an affidavit from a Special Agent of United States Immigration and Customs Enforcement. The Special Agent testified that an investigation of an internet company selling access to child pornography had uncovered the apparent purchase of such access by Petitioner, and led, in turn, to the discovery on Petitioner's computer of a pornographic video he had produced in Clarksville, Tennessee. Sealed Complaint and Warrant, United States v. Cline, No. 3:09-cr-37 (M.D. Tenn. Jan. 21, 2009).¹ Petitioner ultimately pleaded guilty and was convicted in this Court of one count of production of child pornography in violation of 18 U.S.C. § 2251(a) and was sentenced to 327 months (27 years and 3 months) in the United States Bureau of Prisons. Amended Judgment in a Criminal Case, id. (M.D. Tenn. Oct. 14, 2011) (Haynes, J.).

On April 18, 2013, Petitioner entered an open guilty plea in the Circuit Court of Montgomery County, Tennessee, to two counts of rape of a child. (Doc. No. 27-2.) The state court sentenced him to 25 years in prison on each count, to be served consecutive to each other but concurrent with his federal sentence. (Doc. No. 27-1 at 19, 20; Doc. No. 27-3 at 28.) Petitioner appealed the consecutive nature of the state sentences, but the Tennessee Court of Criminal Appeals affirmed on March 26, 2014, and the Tennessee Supreme Court denied discretionary review on August 27, 2014. (Doc. Nos. 27-7, 27-10.)

On August 31, 2015, Petitioner filed a pro se petition for state post-conviction relief. (Doc. No. 27-11 at 5.) The post-conviction court appointed counsel (id. at 36), who filed an amended petition on July 21, 2014. (Id. at 90). The court held a hearing on December 16, 2016 (Doc. No. 27-12) and denied relief on January 10, 2017. (Doc. No. 27-11 at 94.) The Tennessee Court of Criminal Appeals affirmed, and the Tennessee Supreme Court denied discretionary review on February 14, 2018. (Doc. Nos. 27-16, 27-19.)

In the meantime, Petitioner filed his petition for a federal writ of habeas corpus pursuantto 28 U.S.C. § 2254 in this Court on August 31, 2015, along with a motion to hold the case in abeyance pending the outcome of his state post-conviction case. (Doc. Nos. 1, 2.) The Honorable William J. Haynes, who has since retired from the Court, granted the motion and stayed the case on September 25, 2015. (Doc. No. 5.) Petitioner moved to reopen this case on June 4, 2018, less than four months after the Tennessee Supreme Court denied review. (Doc. No. 12.) The Court granted that motion, ordered Petitioner to file an amended petition, and ordered Respondent to respond to the amended petition. (Doc. Nos. 16, 18.) Both parties complied. (Doc. Nos. 17, 27-28.) Petitioner was allowed ample opportunity to file a reply, which he has failed to do.² Accordingly, the Court finds this case adequately briefed for ruling.

II. STATEMENT OF FACTS

At Petitioner's plea hearing, the prosecutor summarized the investigation that led to the criminal charges, and Petitioner admitted his criminal actions as follows:

THE COURT: What are the facts?

GENERAL NASH: For the record, the date of birth of the victim in counts one and two is April 18th, 2001. The relationship with the victim and the defendant is adopted daughter. This is -- the date of offense is March 4th, 2008. I will get to how that was discovered. This is an investigation that began to investigate solicitation of child pornography by the Homeland Security, that division in charge of that. That led to certain e-mail addresses that were traced to Mr. Cline. It was discovered that Mr. Cline was a member of the military and in the middle of 2008, he was in Iraq serving our Country.

A search warrant was authorized of his living quarters in Iraq and a Gateway Laptop, other DVDs and CDs, external hard drives were recovered by Special Agent Miquel Lopez (phonetic) of the U.S. Army CID in Iraq. Those items were examined by Special Agent Bruce Mitchell (phonetic). He performed a forensic exam on the Gateway Laptop that was in Mr. Cline's posession [sic]. Special Agent Mitchell discovered a file named P3040023.AVI (phonetic). This particular file was a movie that depicted an adult caucasian male with a caucasian female estimated age range at that time was seven to ten. Depicted in this video, are the counts that Mr. Cline is pleading to, which one is the penetration of victim-- in the victim'smouth with the male's penis and also anal penetration of the female child.

Further exam of the defendant's laptop, at that time discovered another file of the same female in more of a family setting. Those two based on Special Agent Mitchell reviewing the two females, researching Mr. Cline's history at the time, that he had a daughter and that these two individuals were the same -- the one in the movie and the one in the photos. Of course, a warrant was issued in Federal Court for the production of child pornography, which Ms. Myers has said Mr. Cline has been convicted of the production of this particular movie and is serving twenty-seven and a half years in the Federal penitentiary.

The expected testimony by both the victim and the mother of the victim, who have viewed portions of the movie, have both identified who the child is and who the male is in the movie. They have also identified the place that this took place, which is the bedroom of the family house here in Clarksville, Tennessee, at that time. By furnishings and other things contained in the video.

The movie lasted four minutes and six seconds and it is high resolution and the victim has identified herself in it and her adoptive father as being the one performing those acts on her. So those are the facts and circumstances underlying these pleas.

One other thing - I'm sorry, March 4th, 2008, in the movie, in its properties, it was created on March 4th, 2008. The testimony by the wife of the defendant at that time and confirmed by military sources is that was Mr. Cline's mid-term leave and he was in Clarksville at the time of March 4th, 2008, and that is the creation date of that video.

THE COURT: This is a 2007/2008, so you are talking March 2008, is that correct?

GENERAL NASH: That's correct.

THE COURT: At that time, what was the range of punishment for child rape?

MS. MYERS: Twenty-five years, Your Honor.

GENERAL NASH: No less than twenty-five years.

MS. MYERS: No real range reflected in the statute during those years.

. . .

MS. MYERS: I have copies of the Statute, Your Honor, I can bring to the Court at the next -- I have already printed them. I just left them on my desk.

THE COURT: I assume you have gone over those with Mr. Cline?

MS. MYERS: Oh, yes, Your Honor.

THE COURT: He knows what it is-- Mr. Cline, raise your right hand.

(WHEREUPON, the Defendant was sworn by the Court)

THE COURT: Mr. Cline, you are charged in this indictment, 41300063, of intentionally or knowing sexually penetrating this person whose initials are EC, who was more than three years of age, but less than thirteen, by inserting your penisinto her anus. That's count one. Count two is an allegation of intentionally sexually penetrating this same person who was more than three years of age but less than thirteen by inserting your penis into EC's mouth. These are Class A Felonies, rape of a child, and I understand Ms. Myers has gone over the punishment with you, but it is the minimum of twenty-five years at a hundred percent? So I assume, this being an open plea, it would be my determination as to the sentence but also whether you serve that concurrently or consecutively to the Federal sentence that you already have; do you understand that?

DEFENDANT: Yes, Your Honor.

THE COURT: Now, Mr. Eisner has gone over all these things with you, I understand the T.B.I. sex offender registry, which you would be on basically for life and community supervision for life; do you understand that?

DEFENDANT: Yes, Your Honor.

THE COURT: If you violate those, those are crimes that you can be punished for. Do you understand the agreement as it is at this point?

DEFENDANT: Yes, Your Honor.

THE COURT: You do have a jury trial set I believe on Monday of next week; at that jury trial, Ms. Myers would have entered a plea of not guilty on your behalf and the burden would have been upon the State to prove beyond a reasonable doubt that you did, in fact, intentionally sexually penetrate DC [sic], who was more than three years of age and less than thirteen years of age, in count one, by inserting your penis into her anus, actual penetration and in count two, that you actually inserted your penis into EC's mouth. Do you understand that?

DEFENDANT: Yes, Your Honor.

THE COURT: Do you understand by pleading guilty, you are giving up your right to have that jury trial?

DEFENDANT: Yes, Your Honor.

THE COURT: Do you likewise understand you are giving up the right to require the State to prove guilt beyond a reasonable doubt?

DEFENDANT: Yes, Your Honor.

THE COURT: You would have a right to confront witnesses. These witnesses for the State would have been required to come to Court to testify in your presence, the jury's presence and be subject to cross examination or questioned by Ms.

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