Mayer v. United States

• Decision Date: 02 June 2015
• Docket Number: No. C12-4114-MWB,No. CR09-4051-MWB,C12-4114-MWB,CR09-4051-MWB
• Court: U.S. District Court — Northern District of Iowa
• Parties: MICHAEL MAYER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

MICHAEL MAYER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. C12-4114-MWB

No. CR09-4051-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

June 2, 2015

MEMORANDUM OPINION AND ORDER REGARDING PETITIONER'S AMENDED § 2255 MOTION

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND .............................................. 2

A. Criminal Case Proceedings ....................................................... 2

B. Mayer's § 2255 Motion ............................................................ 9

II. LEGAL ANALYSIS ...................................................................... 10

A. Standards For A § 2255 Motion ............................................... 10

B. Procedural Matters ............................................................... 13

1. Preliminary matters ...................................................... 13

2. Procedural default ....................................................... 13

C. Ineffective Assistance Of Counsel ............................................. 14

1. Applicable standards ..................................................... 16

a. Strickland's "deficient performance" prong ................ 16

b. Strickland's "prejudice" prong ................................ 18

2. Mayer's claims ............................................................ 19

a. Advising on the plea agreement ............................... 19

b. Defense at trial ................................................... 23

D. Certificate Of Appealability ..................................................... 27

III. CONCLUSION ............................................................................ 28

I. INTRODUCTION AND BACKGROUND

This case is before me on petitioner Michael Mayer's Amended Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. Mayer asserts that his counsel provided him with ineffective assistance in failing to adequately advise him on his plea agreement and investigate possible exculpatory evidence. The respondent denies that Mayer is entitled to relief on his claims.

A. Criminal Case Proceedings

On September 16, 2009, a three-count Indictment was returned against Mayer charging him with: (1) sexual exploitation of a child, in violation of 18 U.S.C. §§ 2251(a) and 2251(e) (Count 1); (2) receiving child pornography, in violation of 18 U.S.C. §§ 2252(a)(2)(A) and 2252A(b)(1) (Count 2); and (3) possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2) (Count 3).

On May 5, 2010, Mayer signed an agreement to plead guilty to Count 1. Paragraph 8 of the plea agreement contained the following stipulated facts:

By initialing each of the following paragraphs, defendant stipulates to the following facts. Defendant agrees that these facts are true and may be used to establish a factual basis for defendant's guilty plea and sentence. Defendant has been advised by defendant's attorney of defendant's rights under Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410. Defendant waives these rights and agrees this stipulation may be used against defendant at any time in any proceeding should defendant violate or refuse to follow through on this plea agreement, regardless of whether the plea agreement has been accepted by the Court. Defendant agrees that the stipulation below is a summary of the facts againstdefendant and does not constitute all of the facts the government would be able to prove at trial and may be able to prove to the Court in accordance with this agreement.

A. In or between May 2008 and August 2008, in his residence in Sibley, Iowa, defendant used, persuaded, induced, and enticed, and attempted to use, persuade, induce, and entice P.M., a 14-year-old female, to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct, causing said visual depictions to be produced using materials, namely an LG cell phone, that had been shipped and transported in interstate and foreign commerce, knowing and having reason to know that said visual depictions would then be transported in interstate and foreign commerce, with said visual depictions then being transported in interstate and foreign commerce.

B. In or between May 2008 and August 2008, defendant communicated with P.M. on the Internet, through cell phone conversations, and through cell phone text messages. Defendant knew P.M. was 14 years old and lived in California. Defendant sent sexually explicit videos and images of himself from his cell phone to P.M.'s LG cell phone. On more than one occasion, using his cell phone, defendant asked P.M. to send him sexually explicit videos and images of herself. P.M. then used her LG cell phone to take videos and images of her genitals and of her touching her genitals with her fingers. She used her LG cell phone to send these videos and images to defendant. P.M. sent approximately 50-100 sexually explicit images and 2-3 sexually explicit videos of herself todefendant. Defendant knowingly received, possessed, and viewed these depictions. He eventually deleted all of these depictions. A forensic examination of defendant's Dell computer revealed 42 sexually explicit images of P.M.; these included 5 separate images and 37 duplicates of these images.

Plea Agreement at ¶ 8.

A section of the plea agreement, entitled "ACKNOWLEDGEMENT OF DEFENDANT'S UNDERSTANDING," provided in pertinent part:

27. Defendant acknowledges defendant has read each of the provisions of this entire agreement with the assistance of counsel and understands its provisions. Defendant has discussed the case and defendant's constitutional and other rights with defendant's attorney. . . . Defendant agrees defendant's attorney has represented defendant in a competent manner and has no complaints about that lawyer's representation. Defendant states defendant is not now on or under the influence of, any drug, medication, liquor, or other substance, whether prescribed by a physician or not, that would impair defendant's ability to fully understand the terms and conditions of this plea agreement.

28. Defendant acknowledges defendant is entering into this plea agreement and is pleading guilty freely and voluntarily because defendant is guilty and for no other reason. Defendant further acknowledges defendant is entering into this agreement without reliance upon any discussions between the government and defendant (other than those specifically described in this plea agreement), without promise of benefit of any kind (other than any matters contained in this plea agreement), and without threats, force, intimidation, or coercion of any kind. Defendant further acknowledges defendant's understanding of the nature of eachoffense to which defendant is pleading guilty, including the penalties provided by law.

Plea Agreement at ¶¶ 27-28.

On May 10, 2010, Mayer attempted to commit suicide. He subsequently decided not to enter a guilty plea to Count 1. On October 8, 2010, the prosecution filed a motion, pursuant to Federal Rule of Evidence 104(a), requesting that I rule on the admissibility at trial of stipulated facts from the plea agreement. Mayer resisted the prosecution's motion, arguing that because the plea agreement was never confirmed through a formal plea colloquy, it should be inadmissible at trial. I ruled that the plea agreement was admissible at trial based on controlling Eighth Circuit precedent in United States v. Quiroga, 554 F.3d 1150 (8th Cir. 2009). On the same day of my ruling, Mayer pled guilty to Counts 2 and 3 without a plea agreement. Mayer proceeded to trial on Count 1.

A jury trial commenced on October 26, 2010. At trial, the victim, P.M., testified that she met Mayer in May 2008 while playing a game on the Internet. Between May and August 2008, she and Mayer had communicated via the Internet, had cell phone conversations, and text messages. Most of their communications were text messages. P.M. told Mayer she was 14 years old and lived in California. P.M. testified the relationship between her and Mayer eventually became sexual. Mayer first sent P.M. a picture of his erect penis and requested her to send him a picture of herself in return. The first time Mayer asked, P.M. did not send him a picture. However, Mayer continued to ask P.M. for pictures. She testified that Mayer specifically and repeatedly requested that she send photos of her breasts, and genitalia, or a video of her "fingering herself," and that she was reluctant to do so initially. Eventually, P.M. used her cell phone to take the pictures and videos Mayer requested, and she sent them to Mayer via his e-mail account.

P.M. testified that Mayer talked with her about coming to California to visit her. P.M. did not take him seriously at first, but Mayer continued to ask about visiting her, and he asked her to look for hotels and airports. However, Mayer and P.M. never set a date to meet each other.

Mayer's counsel cross-examined P.M. extensively. P.M. was asked if she had used sexually explicit terms during her conversations with Mayer. She testified she had, and that both she and Mayer had used such language. P.M. was asked seven times if a variety of her actions, including sending sexually explicit text messages to Mayer and sending sexually explicit photographs of herself to him, were of "her own free will." Trial Tr. at 73-78. Each time she answered, "yes." Trial Tr. at 73-78.

The prosecution offered as evidence a compact disc containing 119 images of P.M. that the prosecution's forensic examiner had recovered from the hard drive on Mayer's computer. These 119 images included 18 unique images and copies of these images. Of these 18 images, 5 depicted P.M.'s genitals; these included one full-body image and 4 close-up images of her genitals. The forensic examiner testified that all 119 images had been deleted before the computer was seized. He testified regarding the different actions taken by...