Edington v. United States

• Decision Date: 19 May 2016
• Docket Number: Civ. No. 2:14-cv-2718,Crim. No. 2:10-cr-00335
• Parties: JEREMY R. EDINGTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JEREMY R. EDINGTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civ. No. 2:14-cv-2718

Crim. No. 2:10-cr-00335

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

May 19, 2016

Chief Judge Sargus

Magistrate Judge King

REPORT AND RECOMMENDATION

Petitioner, a federal prisoner, brings this motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the Motion to Vacate (ECF No. 132), Respondent's Response in Opposition (ECF No. 141), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

Facts and Procedural History

The United States Court of Appeals for the Sixth Circuit summarized the facts and procedural history of this case as follows:

In July 2010, Jeremy Edington went to a Franklin County, Ohio restaurant to meet a person whom he believed to be a fourteen-year-old boy he had encountered on the internet. The "boy" was actually an undercover officer who stopped Edington near the restaurant. During an interview following the stop, Edington admitted that he solicited sex from the boy and that he possessed child pornography. He was arrested and later indicted by a grand jury. In July 2011, a jury convicted Edington of one count of coercion and enticement in violation of 18 U.S.C. § 2422(b), three counts of receipt of visual depictions in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of visual depictions in violation of 18 U.S.C. § 2252(a)(4)(B). He now appeals his convictions. For the reasons that follow, we affirm.

On June 14, 2010, Corporal Dan Johnson, a member of the Franklin County Internet Crimes against Children Task Force, found an ad titled "Young Boys?" while searching the personals section of Craigslist. The ad stated that the person who posted the ad, later identified as Edington, was "looking for some [boys] near my age and below to play/fool around." Johnson responded to the ad using the undercover persona "Jake Bloom," a fourteen-year-old boy. Edington, using the screen name "Leonard Vogel," sent "Jake" an email inviting him to chat. Edington contacted "Jake" the next day via instant message and engaged him in a sexually explicit conversation.

On July 26, 2010, Edington contacted "Jake" again via instant message. Edington asked "Jake" if he would meet him for the purpose of engaging in sexual activity. They arranged to meet later that day at a Steak 'n Shake near "Jake's" fictitious home. Edington told "Jake" that he would be driving a black car and would park behind the restaurant.

Police set up surveillance in the area near the Steak 'n Shake. At the scheduled time, Edington arrived in a black Chevy Malibu and parked behind the restaurant, where he sat for several minutes. Edington then drove in a loop around the restaurant, exited the parking lot, and went to a gas station across the street, where an officer in a marked police cruiser stopped Edington at Johnson's request.

Johnson approached Edington, identified himself as a police officer, and asked what Edington was doing in the area. Edington admitted that he was there to see a boy whom he had met online, but he said that he wanted to warn the boy that what he was doing was dangerous. Johnson advised Edington of his Miranda rights, and Edington signed a waiver form. Edington then consented to a search of his car. Johnson found a Blackberry cell phone during the search, which Edington gave him permission to examine. The first thing that Johnson saw was an instant message that Edington had sent to "Jake" a few minutes earlier asking him where he was.

Johnson asked Edington if he had ever viewed child pornography, and Edington admitted that he had some on his home computers. Edington gave Johnson consent to search his residence. The officers drove Edington to his home, where Edington signed a consent-to-search form. Officers searched the home and seized a laptop and a desktop computer. Then they transported Edington to the Franklin County Sheriff's Office detective bureau, where Johnson interviewed Edington.

During the interview, which was recorded, Edington admitted that he posted the ad on Craigslist, that he used the screen name "Leonard Vogel," that he initiated the conversations with "Jake," and that he propositioned him for sex. Edington said that he had been downloading and viewing child pornography since he was sixteen years old and that he had about forty such videos on his computers. Edington explained how he searched for and downloaded pornography involving young boys using the file-sharing program LimeWire.

Edington was arrested on August 3, 2010. On June 30, 2011, a grand jury issued a superseding indictment charging Edington with one count of coercion and enticement (Count One), three counts of receipt of visual depictions (Counts Two, Three, and Four), and one count of possession of visual depictions (Count Five). On July 26, 2011, Edington went to trial. The jury found Edington guilty on all counts. Edington was sentenced to 120 months' imprisonment on Count One, sixty months' imprisonment on Counts Two, Three, and Four (to run concurrently with the sentence imposed on Count One), and thirty-six months' imprisonment on Count Five (to run consecutive to the sentences imposed on Counts One, Two, Three, and Four). He also was sentenced to supervised release of fifteen years and ordered to pay a $500 special assessment. Edington timely appealed.

United States v. Edington, 526 Fed.Appx. 584, 585-87 (6^th Cir. 2013). On direct appeal, Petitioner challenged the sufficiency of the Superseding Indictment and of the evidence as they related to Count 1; challenged the jury instructions; argued that the pornographic videos admitted into evidence had not been properly authenticated; and challenged the constitutionality of the statutes under which he was convicted "because Congress lacks the power to regulate the internet as a means or facility of interstate commerce under the Commerce Clause" and because "Section 2252(a)(2), which prohibits the knowing receipt of 'any visual depiction' of minors engaged in sexually explicit conduct, is ambiguous as to the appropriate unit of prosecution." Id. at 593. On May 16, 2013, the Sixth Circuit affirmed the judgment of this Court. Id. On January 13, 2014, the United States Supreme Court denied Petitioner's petition for a writ of certiorari. Edington v. United States, 134 S.Ct. 955 (2014).

In his Motion to Vacate, Petitioner alleges that he was denied the effective assistance of counsel because his trial attorney "waited until trial had started to research basic issues, such as jurisdiction and the age of consent," "was unaware of case law about enticement," and "based the entire defense on an incorrect view of the law." Petitioner complains that "most of the appeal was dismissed as procedurally barred" and alleges that his attorney abandoned him during the appeal (claim one). Motion to Vacate (ECF No. 132, PageID# 1535.) Petitioner also alleges that this Court lacked jurisdiction (claim two), and contends that he is actually innocent and that the evidence was insufficient to sustain his conviction (claim three); that "§ 2252 cannot be constitutionally applied" (claim four); and that he was denied a fair trial because of prosecutorial misconduct (claim five). Respondent contends that Petitioner's claims are procedurally defaulted and without merit.

Standard of Review

In order to obtain relief under 28 U.S.C. § 2255, a petitioner must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence is imposed in violation of the Constitution or laws of the United States, when the trial court lacked jurisdiction, or where the sentence exceeded the maximum sentence allowed by law, or is "otherwise subject to collateral attack." United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991). Apart from constitutional error, the question is "whether the claimed error was a 'fundamental defect which inherently results in a complete miscarriage of justice.'" Davis v. United States, 417 U.S. 333, 346 (1974)(quoting Hill v. United States, 368 U.S. 424, 428-429 (1962); see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). Nonconstitutionalclaims not raised at trial or on direct appeal are waived for collateral review except where the errors amount to something akin to a denial of due process. Mistakes in the application of the sentencing guidelines will rarely, if ever, warrant relief from the consequences of waiver. Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996).

It is well-established that a § 2255 motion "is not a substitute for a direct appeal." Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013)(quoting Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). Accordingly, claims that could have been raised on direct appeal, but were not, will not be entertained in a motion under § 2255 unless the petitioner shows: (1) cause and actual prejudice to excuse his failure to raise the claims previously; or (2) that he is "actually innocent" of the crimes for which he stands convicted. Ray, 721 F.3d at 761 (citing Bousley v. United States, 523 U.S. 614, 622 (1998) (internal citations omitted).

Ineffective Assistance of Counsel and Lack of Jurisdiction

Petitioner alleges that he was denied the effective assistance of trial and appellate counsel (claim one) and that the Court lacked jurisdiction over the prosecution (claim two). Because these claims are related, the Court will consider them together.

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to the...