U.S. v. Cervini

• Decision Date: 11 August 2004
• Docket Number: No. 03-6144.,03-6144.
• Citation: 379 F.3d 987
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Albert CERVINI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

379 F.3d 987

UNITED STATES of America, Plaintiff-Appellee, v. Michael Albert CERVINI, Defendant-Appellant.

No. 03-6144.

United States Court of Appeals, Tenth Circuit.

August 11, 2004.

Appeal from the United States District Court for the Western District of Oklahoma, Tim Leonard, J.

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Randal A. Sengel, Assistant United States Attorney (and Robert G. McCampbell, United States Attorney, on the brief), Oklahoma City, OK, for Plaintiff — Appellee.

Brian C. Southwell, Minneapolis, MN, for Defendant — Appellant.

Before KELLY, HOLLOWAY, and McCONNELL, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Defendant-Appellant Michael Cervini appeals from the district court's denial of his motion to vacate, 28 U.S.C. § 2255. Our jurisdiction arises under 28 U.S.C. § 2253(a) and, for the reasons stated below, we affirm.

Background

In December 1999, Defendant was charged in a two-count indictment with (1) shipping child pornography in interstate commerce, 18 U.S.C. § 2252A(a)(1); and (2) possession of child pornography that was transported in interstate commerce by means of a computer, 18 U.S.C. § 2252A(a)(5)(B). Aplt.App. at C2. Pursuant to a conditional plea agreement Defendant pled guilty in district court to the second count of the indictment and was sentenced to twenty-seven months imprisonment and three years supervised release.¹ Id. The first count was dismissed. On appeal, he argued that the district court erred in denying his motion to suppress and his request for an evidentiary hearing on that motion. United States v. Cervini, 16 Fed.Appx. 865 (10th Cir.2001). We affirmed on both grounds.

Following Defendant's appeal, the Supreme Court issued its decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), which invalidated § 2256(8)(B) and (D) of the Child Pornography Prevention Act (CPPA), 18 U.S.C. § 2251 et. seq. These provisions purported to include in the definition of child pornography images created without the use of actual children.² Finding that the prohibition of such "virtual" child pornography chilled protected adult-to-adult speech, the Court held that such prohibitions violated the First Amendment. See Free Speech Coalition, 535 U.S. at 255, 122 S.Ct. 1389.

In May 2002, Defendant filed a § 2255 motion in district court seeking to have his conviction vacated on the basis that the Free Speech Coalition decision should be applied to his petition retroactively, and arguing that Free Speech Coalition renders his guilty plea unknowing and involuntary. See Aplt.App. at O18; United States v. Gigley, 213 F.3d 509, 516 (10th Cir.2000) ("A guilty plea is void if it is not knowing and voluntary."). The district court refused to reach the merits of Defendant's claims, finding that Defendant had not made a sufficient showing to overcome the procedural bar precluding a court in a § 2255 action from reaching the merits of otherwise defaulted claims. Aplt.App. at P1-10; see United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). In response to Defendant's application to this court, we granted a certificate of appealability (COA) on the twin questions of (1) whether Defendant has made a sufficient showing of actual innocence to overcome the procedural bar against consideration of defaulted claims, and (2) whether the Court's decision in Free Speech Coalition is retroactively applicable to petitions for collateral relief.

Discussion

When reviewing a district court's denial of a § 2255 motion, we review the district court's legal conclusions de novo. United States v. Horey, 333 F.3d 1185, 1187 (10th Cir.2003). We review the district court's findings of fact for clear error. United States v. Salazar, 323 F.3d 852, 855 (10th Cir.2003).

A § 2255 motion is not intended as a substitute for an appeal. See Frady, 456 U.S. at 164-65, 102 S.Ct. 1584. Consequently "failure to raise an issue either at trial or on direct appeal imposes a procedural bar to habeas review." United States v. Barajas-Diaz, 313 F.3d 1242, 1245 (10th Cir.2002); see also Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). There are, however, two well recognized exceptions under which a defendant may escape application of the procedural bar against consideration of defaulted claims. First, if defendant can show both good cause for failing to raise the issue earlier, and that the court's failure to consider the claim would result in actual prejudice to his defense, the procedural bar will not be applied. See Frady, 456 U.S. at 167, 102 S.Ct. 1584. Alternatively, because a writ of habeas corpus is "at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), if defendant can demonstrate that "failure to consider the federal claims will result in a fundamental miscarriage of justice," Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (internal quotation marks and citations omitted), the court may reach the merits of the claimed constitutional deficiencies despite the procedural bar.

As both the Supreme Court and this court have recognized, the incarceration of one actually innocent of the crime of which he has been convicted constitutes a grave miscarriage of justice; it is equally well established that if a defendant can adduce new evidence in post-conviction proceedings showing that "constitutional error `probably' resulted in the conviction of one who was actually innocent," Schlup, 513 U.S. at 322, 115 S.Ct. 851; see also United States v. Wiseman, 297 F.3d 975, 979 (10th Cir.2002), the court may reach the merits of otherwise defaulted claims. In order to meet this standard, however, "[t]he petitioner [is] required to establish, by a fair probability, that the trier of facts would have entertained a reasonable doubt of his guilt." Schlup, 513 U.S. at 322, 115 S.Ct. 851 (internal quotations and citations omitted).

Defendant pled guilty, he did not raise his claims of constitutional error at trial, nor did he do so on direct appeal from his sentence. His claims, therefore, are subject in the first instance to a procedural bar. In an attempt to overcome the procedural bar and allow this court to reach the merits of his claims, Defendant alleges that he is actually innocent of the crime to which he pled guilty. Specifically, Defendant claims that in light of the Supreme Court's decision in Free Speech Coalition, no reasonable juror would have found him guilty of possession of actual child pornography, as it would have been impossible to tell whether the images he was convicted of possessing were of actual or virtual child pornography. See Aplt. Br. at 51-53; Aplt.App. O18-O19, O21.

Though conceptually distinct from a sufficiency of the evidence claim, an actual innocence claim must be viewed in light of the reasonable doubt standard:

The consideration in federal habeas proceedings of a broader array of evidence does not modify the essential meaning of "innocence." The Carrier [Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)] standard reflects the proposition, firmly established in our legal system, that the line between innocence and guilt is drawn with reference to a reasonable doubt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Indeed, even in Sawyer [Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)], with its emphasis on eligibility for the death penalty, the Court did not stray from the understanding that the eligibility determination must be made with reference to reasonable doubt. Thus, whether a court is assessing eligibility for the death penalty under Sawyer, or is deciding whether a petitioner has made the requisite showing of innocence under Carrier, the analysis must incorporate the understanding that proof beyond a reasonable doubt marks the legal boundary between guilt and innocence.

Schlup, 513 U.S. at 328, 115 S.Ct. 851. There must be a showing "that no reasonable juror would have found the defendant guilty." Id. at 329, 115 S.Ct. 851. This requires "a probabilistic determination about what reasonable, properly instructed jurors would do." Id. Ultimately, actual innocence is not an easy showing to make:

To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.

Id. at 324, 115 S.Ct. 851; see also Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998).

In deciding whether an evidentiary hearing is appropriate, Schlup instructs that a district court "must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial." 513 U.S. at 331, 115 S.Ct. 851. Thus, a movant must identify evidence that demonstrates that he probably would not have been found guilty beyond a reasonable doubt by any reasonable juror. This requirement of identifying evidence on which an actual innocence claim will rest is essential. The actual innocence exception is grounded in the need "to balance the societal interests in finality, comity and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case." Id. at 324, 115 S.Ct. 851 (emphasis added). It is precisely the requirement that a movant adduce new reliable evidence that insures that the actual innocence exception does not swallow the procedural bar rule.

Defendant contends that he is actually innocent because it is impossible to tell beyond a reasonable doubt whether the images in this case "were actual identifiable minor children" or "simply computer...