McCloud v. United States

• Decision Date: 15 January 2015
• Docket Number: No. 4:11-CV-1721 CAS,4:11-CV-1721 CAS
• Court: U.S. District Court — Eastern District of Missouri
• Parties: DONNELL MCCLOUD, Movant, v. UNITED STATES OF AMERICA, Respondent.

DONNELL MCCLOUD, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 4:11-CV-1721 CAS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

January 15, 2015

MEMORANDUM AND ORDER

This matter is before the Court on movant Donnell McCloud's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255, filed by retained counsel Mr. Daniel Juengel. The government filed its Response to the Motion to Vacate and movant filed a Reply, so the matter is fully briefed. The Court held an evidentiary hearing on some of movant's claims on May 3, 2012. For the following reasons, the Court concludes that all of movant's claims are without merit and should be dismissed.

I. Background

On February 9, 2008, Donnell McCloud was indicted on one count of Production of Child Pornography in violation of 18 U.S.C. § 2251(a). On July 7, 2008, movant filed motions to dismiss the indictment and to suppress evidence and statements. On July 15, 2008, United States Magistrate Judge Frederick R. Buckles held an evidentiary hearing and heard testimony on movant's motions. On August 21, 2008, a superseding indictment was returned charging movant with three counts of Production of Child Pornography in violation of 18 U.S.C. § 2251(a), and three counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(5)(B). On September 2, 2008, movant filed motions to dismiss the superseding indictment and to suppress evidence and statements. OnSeptember 4, 2008, Judge Buckles heard additional testimony on these motions. On September 23, 2008, a supplemental evidentiary hearing was held and additional testimony was adduced. On October 2, 2008, another supplemental evidentiary hearing was held and movant testified in support of his motion to suppress. On October 23, 2008, Judge Buckles issued a Report and Recommendation, recommending that the motion to dismiss the indictment and the motions to suppress evidence and statements be denied.

On October 29, 2008, the government filed a Motion in Limine to Exclude "Mistake of Age" Evidence, Argument or Defense. On November 10, 2008, the Court adopted the Magistrate Judge's Report and Recommendation and denied the motions to dismiss indictment and suppress evidence and statements. On November 13, 2008, the Court granted the government's motion in limine to exclude mistake of age evidence.

On November 23, 2008, the day before trial, the government dismissed the three counts of Possession of Child Pornography against movant, and movant filed a Motion for Reconsideration of Prior Ruling Re: Mistake of Age. Trial began on November 24, 2008 and the Court denied movant's Motion for Reconsideration. On November 26, 2008, after three days of trial, the jury found movant guilty as charged on the three counts of Production of Child Pornography. A Pre-Sentence Investigation Report was prepared and on February 24, 2009, a sentencing hearing was held. The Court sentenced movant to thirty years on each of the three counts to run concurrently. On March 3, 2009, movant filed a Notice of Appeal. Movant's appeal asserted five claims:

(1) the district court erroneously denied his motion for judgment of acquittal at the close of all evidence with respect to Count 5 [Production of Child Pornography involving victim G.D.] because the government failed to produce any evidence that McCloud actually produced the images or otherwise caused the images to be produced; (2) [18 U.S.C.] § 2251(a) is unconstitutional because it does not require knowledge of a minor's age or permit a reasonable-mistake-of-age defense, in violation of the First Amendment and the Fifth Amendment; (3) in the alternative,the district court erred in not permitting an affirmative mistake-of-age defense, as § 2251(a) does not preclude such a defense; (4) § 2251(a) is an unconstitutional exercise of Congress's authority under the Commerce Clause as applied to McCloud because the memory card and photo paper at issue are not instrumentalities of interstate commence; and (5) even if the memory card and photo paper are "instrumentalities," the government failed to prove they had traveled in interstate commerce.

United States v. McCloud, 590 F.3d 560, 565 (8th Cir. 2009). The Court of Appeals rejected each of movant's contentions and affirmed his conviction on December 29, 2009. Id. at 570. On March 25, 2010, movant filed a petition for a writ of certiorari with the Supreme Court, which was denied on October 4, 2010. McCloud v United States, No. 09-1177 (Oct. 4, 2010). On October 3, 2011, petitioner timely filed the instant Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside, or Correct Sentence. The Motion was accompanied by a Memorandum of Law that sets forth the specific claims.

II. Grounds

Movant raises the following grounds in his § 2255 Motion, all of which allege the ineffective assistance of trial counsel. Movant asserts that trial counsel:

(1) failed to adequately advise movant as to whether movant should testify on his own behalf, and put movant's testimony on after the close of the government's case-in-chief (Ground 1);

(2) incorrectly advised movant as to the government's burden of proof by incorrectly advising movant that the government would have to prove movant knew the victims were underage, that a mistake of age defense was available for the charges against him, and that such a defense would likely be successful (Ground 2);

(3) failed to provide movant the necessary information from which movant could decide whether he should plead guilty pursuant to the government's plea offer, and incorrectly told movant on the day of trial that he would be exposed to a potential thirty-year sentence if he were to plead guilty (Grounds 1 and 2);

(4) failed to move for a continuance on the first day of trial in order to allow movant to obtain new counsel or to represent himself (Ground 3);(5) failed to challenge issuance of the 2008 search warrant and failed to assert that the 2008 search warrant was not supported by probable cause, and failed to effectively argue that items obtained from the warrantless 2004 search should be suppressed because Theresa Strong did not have actual or apparent authority to consent to the search (Ground 4);

(6) failed to move for dismissal of the indictment on the basis that 18 U.S.C. § 2251(a) is void for vagueness and under the rule of lenity (Ground 5);

(7) failed to object to prejudicial testimony regarding (a) physical assaults and a missing tooth; (b) 2004 allegations against movant that were never charged; (c) evidence of the death of victim G.D.; and (d) the blue bag containing photographs of movant with other women; failed to object when the counts against movant were not renumbered after Counts II, III and IV were dismissed; and failed to object when the prosecutor handed movant a photograph and counsel knew that movant could not see it because he lacked proper eyewear (Ground 6);

(8) failed to explain to movant the limitations on his defense, specifically that the victims' sexual history would not be admissible at trial (Ground 7);

(9) failed to assert viable defenses, by failing to: (a) challenge victim C.W.'s testimony that she and movant took film to Walmart to be developed; (b) challenge the fact that movant did not use Fuji film paper, which was the basis for the exercise of federal jurisdiction over movant; and (c) challenge the fact that movant did not use camera memory cards, which was the basis for the exercise of federal jurisdiction over movant with respect to victim K.G. (Ground 7);

(10) failed to argue the fatal variance in the charging document (Ground 8);

(11) failed to effectively introduce relevant evidence (Ground 9);

(12) failed to obtain eyeglasses for movant so that movant could adequately participate in the defense of his case (Ground 10); and

(13) failed to proffer movant's testimony, without having him testify (Ground 11).¹

III. Evidentiary Hearing

On January 23, 2012, the Court issued an order for an evidentiary hearing on movant's § 2255 motion limited to the claims in Grounds One, Two and Three, as set forth in paragraphs (1)-(4) above. The hearing was held on May 3, 2012. Movant presented the testimony of his sister, Chezia McCloud; his mother, Darlene McCloud; and himself. The government presented the testimony of movant's trial counsel, Robert P. Taaffe, Jr. At the conclusion of the hearing, the parties were ordered to submit proposed findings of facts and conclusions of law on the claims that were the subject of the hearing.

IV. Findings of Fact

In February 2008, movant was indicted in federal court on one count of Production of Child Pornography in violation of 18 U.S.C. § 2251(a), concerning victim K.G. See Doc. 1, 4:08-CR-156 CAS (E.D. Mo.); Gov't Ex. 5. In April 2008, movant retained attorney Robert Taaffe to represent him in state court on statutory rape charges. H. Tr. 108.² The defense to the state charges focused on a mistake of age defense, i.e., that movant believed the victim was an adult. H. Tr. 13, 69, 108. Mr. Taaffe discussed this defense with movant and movant's sister, Chezia McCloud. H. Tr. 7, 40, 115. In June 2008, movant was removed from state custody to face the federal charge of Production of Child Pornography. H. Tr. 110; Govt. Ex. 5. In July 2008, Mr. Taaffe had an associate research the possibility of asserting that the necessary interstate nexus for the federal charge was lacking. The research showed, however, that the interstate commerce evidence was sufficient. H. Tr. 111-12; Gov't Ex. 4 at 4. Nonetheless, Mr. Taaffe filed a motion to dismiss the indictment on that basis, butdid not expect it to succeed. H. Tr. 112. In August 2008, the government filed a superseding indictment containing three counts of Production of Child Pornography in violation of 18 U.S.C. § 2251(a), and three counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(5)(B), concerning victims K.G., G.D., and C.W. See Doc. 30, 4:08-CR-156 CAS; Gov'...