Ferguson v. United States, 2:04-CR-04

• Decision Date: 03 July 2012
• Docket Number: NO. 2:04-CR-04,NO. 2:09-CV-246,2:04-CR-04,2:09-CV-246
• Parties: MICHAEL D. FERGUSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of Tennessee

MICHAEL D. FERGUSON, Petitioner,

v.UNITED STATES OF AMERICA, Respondent.

NO. 2:04-CR-04

NO. 2:09-CV-246

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE

Dated: July 3, 2012

MEMORANDUM OPINION AND ORDER

Michael D. Ferguson ("Ferguson" or "petitioner"), a federal prisoner, has filed a "Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody," [Doc. 115]. The United States has responded in opposition, [Doc. 122], and the petitioner has replied to the government's opposition, [Doc. 126]. The Court has determined that the motion and the files and records of the prior proceedings conclusively establish that petitioner is not entitled to relief on all grounds, except for his claim that he received erroneous advice from counsel, further confirmed by misstatements by the Court itself, about his maximum possible sentence, leading him to enter an unknowing and involuntary guilty plea, and that, as to these claims, no evidentiary hearing is required.

For the reasons which follow then, the motion will be DENIED and the petition dismissed as to these claims. As to the remaining claim, the Court has concluded that an evidentiary hearing is warranted, that counsel should be appointed under 18 U.S.C. § 3006A, and a hearing held as soon as practicable after giving the attorney adequate time to investigate and prepare. Further, pursuant to 28 U.S.C. § 636(b), the Court refers the remaining claim to Chief United States Magistrate Judge Dennis H. Inman to appoint counsel, conduct the necessary hearing, and make proposed findings of fact and recommendations for disposition.

I. Procedural and Factual Background

Ferguson was arrested and charged pursuant to a criminal complaint on January 21, 2004, [Doc. 1]. He was subsequently indicted by the federal grand jury on January 27, 2004, and charged, in a four count indictment, with possession, receipt, production and distribution of child pornography, [Doc. 9]. He made an initial appearance and was arraigned on the indictment on January 30, 2004. Ferguson was advised by the Magistrate Judge at the January 30 proceeding of each of the charges against him and advised of the potential penalties. On September 1, 2004, a proposed Rule 11(c)(1)(C) plea agreement was filed in which Ferguson and the government agreed that Ferguson would receive a sentence of one hundred forty four (144) months imprisonment upon his guilty plea to the offenses of receipt and production of child pornography, [Doc. 31, 39].

Although the parties agreed in the plea agreement that the appropriate sentence in the case was 144 months, the plea agreement also set out the maximum and minimum terms of imprisonment for each count. The plea agreement provided that for Count One of the indictment (violation of 18 U.S.C. § 2251(a) and (d)) there was a maximum penalty "of imprisonment for not less [sic] 10 years no [sic] more than 20 years" and for Count Three (violation of 18 U.S.C. § 2252A(a)(2) and (b)(1)) "of imprisonment for not less than five nor more than 20 years." [Doc. 39, ¶ 2]. During the change of plea hearing on October 25, 2004, Ferguson was likewise advised as to the maximum penalties provided for by law and the relevant mandatory minimum sentence provided by law for each count, consistent with the language of his plea agreement, [Doc. 104, Tr. of Proc., at 10]. Ferguson was also orally advised by the Court that the plea agreement was offered pursuant to Rule 11(c)(1)(C) and that, if accepted, would require the Court to impose the agreed upon sentence of 144 months, [Id. at 13]. Ferguson's guilty pleas were accepted, the plea agreement was taken under advisement,and a presentence investigation report ("PSR") was ordered, [Doc. 43]. On March 7, 2005, the Court rejected Ferguson's plea agreement and established a deadline of March 21, 2005, for Ferguson to file a motion to withdraw his guilty plea, [Doc. 52]. On March 21, 2005, Ferguson withdrew his guilty plea and pled guilty to the same charges pursuant to a new Rule 11(c)(1)(A) plea agreement, [Docs. 56, 57].

Under the terms of the new plea agreement, the parties agreed that the Court was authorized to "impose any lawful term of imprisonment up to the statutory maximum." [Doc. 57, ¶ 1(a)]. The plea agreement further provided that the maximum penalty for Count One was "imprisonment for not less [sic] ten years nor more than twenty years" and for Count Three "of imprisonment for not less than five years nor more than twenty years." [Id. at ¶ 2]. During the change of plea colloquy, Ferguson was advised of the minimum and maximum statutorily authorized sentences for each count. [106 Tr. of Proc., at 16]. Later in the colloquy, the Court also asked the petitioner if he understood that the Court "could impose a sentence of up to 20 years imprisonment" in the case. [Id. at 19].¹ Ferguson responded that he did.

The probation officer in the PSR originally determined a guidelines range for imprisonment of 235 to 293 months, which was described by petitioner's counsel in his sentencing memorandum as being "only five months below the statutory maximum [on the bottom end]" and "53 months above the statutory maximum [on the top end]" [Doc. 76, at 2]. A revised PSR established a Guidelines range of 324 to 405 months of imprisonment. Ferguson's objections to the revised PSR were overruled and he was sentenced on August 25, 2005, to 300 months of imprisonment (240months on Count One and 60 months on Count Three, with the terms of imprisonment to run consecutively), [Doc. 88]. Judgment was entered on September 8, 2005, [Doc. 90].

Ferguson filed a notice of appeal on September 12, 2005, [Doc. 91]. The Sixth Circuit Court of Appeals affirmed Ferguson's conviction and sentence on June 20, 2008, [Doc. 111], and Ferguson's subsequent petition for writ of certiorari to the United States Supreme Court was denied on November 17, 2008, [Doc. 114]. The instant § 2255 petition was then timely filed on November 4, 2009, [Doc. 115].

The factual basis for the guilty pleas was set out in a stipulation of facts as follows:

Operation Hamlet was a multi-jurisdictional federal investigation of an international ring of child pornographers who have conspired to sexually exploit children in furtherance of their own sexual gratification and profit. Two main subjects of the investigation were Lloyd Emmerson from Clovis, California, and Joseph Durborow, of Orem, Utah. Both have been identified as manufacturers and distributors of child pornography via the internet. The subjects' computers were seized as part of the investigation and a forensic analysis was completed on both in 2002. Among the photos found in both Emmerson and Durborow's possesssion were numeroust photographs of a "minor female child" that had been taken and distributed by an individual who identified himself in computer chats and e-mails as "Ratboy." Two of the photographs of the "minor female child" were pornographic. These images were transported and shipped via internet by "Ratboy" between September 13, 1999 and January , 2002 to the other subjects. Through forensic examination of Duborow's computer, it was determined that Duborow traded minor female children with "Ratboy" who in turn provided photographs of the "minor female child" to Duborow. Eventually investigators were able to determine the IP network address that was used to send the e-mails and pictures. It was registered to Michael D. Ferguson, age 40, of 1101 Idlewylde Circle, in Johnson City, Tennessee. On January 21, 2004, Ferguson consented to a search for child pornography and related materials at his residence. U.S. Immigration and Customs Enforcement agents found and seized a computer and a large quantity of media storage devices along with video tapes. A large quantity of child pornography as defined in 18 U.S.C. § 2256(8), including pictures ofthe "minor female child" and other prepubescent children were taken as evidence. The agents also discovered a number of video tapes showing Ferguson having sex with the "female child" who had reached the age of 18. The e-mails and photographs from "Ratboy" that were found during the Operation Hamlet investigation were also discovered in his media storage devices.

Ferguson was advised of his rights and gave a statement to the agents admitting is guilt in the production, receipt, transportation and possession of child pornography. He admitted there was child pornography on the computer, primarily downloaded from newsgroups". He said downloading and saving child pornography was something he did every day. He admitted prior contact with Durborow and Emmerson and confirmed the earlier e-mails and transmission of photographs of the "minor female child". He had known her since she was 8 and had used a digital camera to photograph her at his residence then send the photos and the two sexually explicit photos. He admitted that he and the "minor female child" began having sexual intercourse in 2002 when she was fifteen. He had videotaped numerous sexual encounters with her and saved the videos. The "minor female child" was also interviewed. She was born on April 21, 1987 and had known Ferguson since she was 8 years old. Prior to becoming sexually intimate with him there had been a period of time in which he would "touch" her. She acknowledged Ferguson would videotape them having sex. She said she would "sometimes" consent to sex. Often Ferguson would talk her into it, sometimes he would buy her things or would provide her with alcohol before sex. She said that most of the time she had sex with Ferguson, she was intoxicated. She identified the photographs found in the possession of Durborow were of her and had been taken by Ferguson.

[Doc. 40].

II.Standard of Review

This Court must vacate and set aside petitioner's sentence if it finds that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to...