Gann v. United States

• Decision Date: 24 April 2013
• Docket Number: No. 3:12-cv-00747,3:12-cv-00747
• Parties: DORSEY G. GANN, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

DORSEY G. GANN, Movant,

v.UNITED STATES OF AMERICA, Respondent.

No. 3:12-cv-00747

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

Filed: April 24, 2013

Judge Trauger

MEMORANDUM

The movant,¹ proceeding pro se, has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Docket No. 1). The movant presently is incarcerated at the Federal Correctional Institution in Ashland, Kentucky.

I. Procedural Background

On December 12, 2002, a federal grand jury in the Middle District of Tennessee indicted the defendant for Production of Child Pornography, in violation of 18 U.S.C. § 2251(a) (Count One, involving daughter JG² ); Production of Child Pornography, in violation 18 U.S.C. § 2251(a) (Count Two, involving daughter AG); Receiving Child Pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A)(Count Three); two counts of Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B)(Counts Four and Five); and one count of Criminal Forfeiture, pursuant to 18 U.S.C. § 2253(a)(Count Six). See United States v. Dorsey Gawayne Gann, No. 3:02-cr-00209 (M.D. Tenn. 2002)(Echols, J.)(Docket No. 1).

On September 25, 2003, the defendant filed a Motion to Dismiss Counts One and Two of the Indictment, contending that his production of child pornography using his own daughters did not constitute interstate commerce because there was insufficient nexus between his activities and interstate commerce to bring him within a constitutional construction of the statute. (Id., Docket No. 14). The court denied the motion in an order dated December 1, 2003. (Id., Docket No. 25).

On February 2, 2004, the defendant entered a guilty plea to Counts Two and Three of the Indictment, pursuant to a plea agreement with the government,³ in which the defendant reserved the right to appeal the district court's denial of his motion to dismiss. The plea agreement contained an explicit waiver of all appeal rights related to sentencing.⁴

On June 14, 2004, the court accepted the defendant's guilty plea and sentenced the defendant to a term of 210 months' imprisonment, to run concurrently with his state sentence. (Id., Docket No. 48). This was the agreed-upon sentence in the plea agreement. Pursuant to the plea agreement, the government dismissed counts One, Four, and Five. (Id.)

The defendant timely appealed the district court's denial of his motion to dismiss Count 2 of the Indictment as permitted by the plea agreement, and the Sixth Circuit Court of Appeals affirmed the district court's ruling on December 21, 2005. (Id., Docket No. 53). The defendant filed a petition for rehearing en banc on January 3, 2006, and that petition was denied on March 24, 2006. The defendant's petition for writ of certiorari to the United States Supreme Court was denied on October 2, 2006.

II. The Instant Motion

On July 19, 2012, the movant filed the instant § 2255 motion (Docket No. 1) and a declaration (Docket No. 3). Upon preliminary review of the motion, the court noted that Gann appeared not only to challenge the imposition of his sentence but also the execution of his sentence. (Docket No. 5 at p. 1). Thus, the court entered an order granting Gann fourteen days within which to decide whether he intended to pursue (1) only an action pursuant to 28 U.S.C. § 2255; (2) only an action pursuant to 28 U.S.C. § 2241; or (3) two distinct actions-one pursuant to § 2255 and the other action pursuant to § 2241. (Id. at pp. 2-3). Gann submitted a response clarifying his intention: to pursue an action pursuant to § 2255 only. (Docket No. 8 at p. 1).

In his § 2255 motion, the movant presents one ground for relief. The motion alleges that the defendant's attorney⁵ provided ineffective assistance of counsel at sentencing because he failed to move for a downward adjustment to the defendant's sentence under U.S.S.G. § 5G1.3 or otherwise ensure that Gann's time spent in state custody would fully count toward his 210 months' imprisonment in federal custody. The movant contends that, had defense counsel properly moved the district court under § 5G1.3 or otherwise, the court could and would have taken steps to ensure that his federal sentence ran fully concurrent with his state sentence. The movant names the United States of America as the respondent. (Docket No. 1).

Pursuant to Rule 4, Rules- Section 2255 Proceedings, the court conducted a preliminary examination of the motion and determined that it was not readily apparent on the face of the motion that the movant is not entitled to relief. (Docket No. 9). Accordingly, the court entered an order on August 21, 2012, directing the respondent to answer or otherwise respond to the motion. (Id.)The respondent filed a response, asserting that the court should deny the motion and dismiss the action (Docket No. 17), to which the movant submitted a reply in opposition (Docket No. 21).

III. Facts

The pertinent facts regarding the underlying conviction are taken verbatim from the opinion of the Sixth Circuit Court of Appeals on direct appeal:

Gann has three daughters: two by his current wife, Cindy Gann, and one by his former wife, Carmen Bragg. In the spring of 2002, Gann's daughter by his former wife ("JG") was sixteen years old, while his daughters by his current wife were ten years old ("AG"), and five years old.

Sometime in 1998 or 1999, Gann began sexually abusing his eldest daughter, JG, who was then twelve or thirteen years old and living with her father. The abuse continued until she was sixteen years old. Near JG's thirteenth birthday, Gann forced her to lie down on the couch and close her eyes. He then videotaped her as he undressed and fondled her. He coerced her cooperation by threatening to videotape her younger half-sisters if she refused. Gann later destroyed this videotape because the lighting was poor.

During July of 2001, Gann compelled JG into making a second videotape, again coercing her by threatening to videotape her half-sisters instead. JG agreed to be videotaped, but only if her father left the room. Gann provided lingerie and sex toys, which JG used to perform sexual acts in front of the videocamera after Gann had left the room.

In approximately June of 2002, Gann took sexually explicit, nude photographs of his middle daughter, AG, who was ten years old at the time. On July 3, 2002, JG got into an argument with her father regarding his attempts to get her to make a third video and an incident where Gann approached JG's seventeen-year-old friend to ask if he could photograph her breasts. After this argument, JG reported Gann's abuse to her mother, Carmen Bragg, who filed a report of sexual abuse with the Gallatin Police Department ("GPD").

During a search of Gann's home, GPD officers found videotapes, photographs, compact discs, and video and computer equipment. On Gann's computer hard drive or compact discs, police found the second video of JG and the photographs of AG, along with twelve pornographic photographs of known children. One directory on Gann's computer contained over 1500 pornographic files. Of the hundreds of sexually explicit images found on Gann's computer and compact discs, most of them were of children. Defendant admitted to being addicted to childpornography, to using his daughters to produce child pornography (including videotaping JG and photographing AG), and to downloading child pornography from the Internet.

The computer used to receive and store the child pornography, the compact discs used to store the video of JG, the video camcorder used to videotape JG, and the digital camera used to photograph AG were all produced outside the state of Tennessee.

The child pornography of Gann's daughter was produced within Gann's Tennessee home. During the investigation and subsequent prosecution, no evidence was ever presented, nor stipulated to, that the images of Gann's daughters ever left his home, that Gann ever sold, traded, or distributed them, or that he ever intended to do so. There was no evidence that he sold, traded, or distributed the other child pornography in his possession.

On July 8, 2002, Gann pled guilty in state court to one count of aggravated sexual battery and two counts of sexual battery for the sexual abuse of his daughter JG that occurred between 1997 and 1998, when JG was twelve and thirteen years old.

On December 12, 2002, Gann was charged in a six-count federal indictment for the later incidents that occurred in 2001 and 2002, as follows:

Count 1: Production of Child Pornography in violation of 18 U.S.C. § 2251(a) (by videotaping his daughter JG).

Count 2: Production of Child Pornography in violation of 18 U.S.C. § 2251(a) (by photographing his daughter AG).

Count 3: Receiving Child Pornography, in violation of 18 U.S.C. § 2252(a)(2)(A).

Count 4: Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (by possessing images stored on materials which had traveled in interstate commerce).

Count 5: Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (by possessing images which had traveled in interstate commerce).

Count 6: Criminal Forfeiture, pursuant to 18 U.S.C. § 2253(a).

On September 25, 2003, Gann filed a motion to dismiss Counts 1 and 2 of theindictment, the charges dealing with production of child pornography. Gann argued that § 2251(a), which was enacted pursuant to Congress's authority under the Commerce Clause, was unconstitutional as applied to him because his production of child pornography using his daughters was intrastate and noneconomic, and, as a result, there was an insufficient nexus between his activities and interstate commerce. The district court denied Gann's motion.

On February 2, 2004, in accordance with a plea agreement with the Government, Gann entered a guilty plea to Count 2, production of child pornography involving daughter AG, and Count 3, receiving child pornography. In the agreement, Gann waived his right to appeal his sentence, but reserved the right to appeal

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