United States v. Kearn
| Decision Date | 04 January 2022 |
| Docket Number | Case No. 13-40057-01-DDC |
| Citation | 578 F.Supp.3d 1221 |
| Parties | UNITED STATES of America, Plaintiff, v. Jonathan KEARN, Defendant. |
| Court | U.S. District Court — District of Kansas |
Christine E. Kenney, James A. Brown, Office of United States Attorney, Topeka, KS, for Plaintiff.
This matter comes before the court on Jonathan Kearn's Amended Motion to Vacate, Set Aside, or Correct a Sentence Under 28 U.S.C. § 2255 (Doc. 165). The court previously denied six of the seven claims Mr. Kearn raised in his motion, see Doc. 173, but left undecided Mr. Kearn's ineffective assistance of counsel claim based on his attorney's advice during the plea process, see id. at 24–25. The court appointed counsel to assist Mr. Kearn on this remaining claim and conducted an evidentiary hearing on it. See Doc. 180. After the parties finished with the evidence, the parties submitted post-hearing briefing. See Docs. 203, 206, 207, & 208.
The question presented by Mr. Kearn's motion is not about his guilt. The jury decided that question several years ago. Their 2015 verdict convicted Mr. Kearn of three federal child pornography charges stemming from pictures he took of his four-and-a-half-year-old daughter and then shared on the internet. See Doc. 97. And in affirming Mr. Kearn's conviction in 2017, the Tenth Circuit characterized "the evidence of [Mr.] Kearn's guilt [as] overwhelming[.]" United States v. Kearn , 863 F.3d 1299, 1312 (10th Cir. 2017), cert. denied , ––– U.S. ––––, 138 S. Ct. 2025, 201 L.Ed.2d 282 (2018).
But no matter his guilt, Mr. Kearn had a constitutional right to effective assistance of counsel. This Order addresses that right as it pertains to the critical stage of plea bargaining, which, as the Supreme Court has recognized, " ‘is not some adjunct to the criminal justice system; it is the criminal justice system.’ " Missouri v. Frye , 566 U.S. 134, 144, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) (quoting Scott & Stuntz, Plea Bargaining as Contract , 101 Yale L.J. 1909, 1912 (1992) ).
Before trial, the government offered Mr. Kearn a plea deal under Fed. R. Crim. P. 11(c)(1)(C). If accepted, Mr. Kearn would plead guilty to a single offense in exchange for the government's agreement to a sentence of 10 years in prison. Mr. Kearn rejected that deal and proceeded to trial. After his conviction, the court sentenced him to 292 months in prison—more than 24 years. So, Mr. Kearn's decision was a costly one. And it's that decision he now seeks to undo. Specifically, Mr. Kearn argues that his trial counsel inadequately and inaccurately advised him during the plea process, and that but for that ineffective advice, he would've accepted the government's offer and pleaded guilty.
The court recognizes the difficulty with this claim. It first requires the court to evaluate the performance of counsel with the benefit of hindsight. Even more challenging, it requires the court to reach back in time and construct a counterfactual world to determine what Mr. Kearn would've done had he received the legal advice he claims he'd have received from effective assistance. But after considering at great length the focused and admirable guidance from the parties on this difficult claim, the court concludes it must decide those daunting questions. The court also concludes that Mr. Kearn didn't receive effective assistance of counsel and that this deficient legal advice prejudiced him substantially. Thus, for reasons explained below, the court grants Mr. Kearn's § 2255 motion (Doc. 165), but only in part.
This case began many years ago. On May 29, 2013, a grand jury indicted Mr. Kearn on three charges: (1) permitting his minor children to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, violating 18 U.S.C. § 2251(b) ; (2) distributing a visual depiction of a minor engaged in sexually explicit conduct, violating 18 U.S.C. § 2252(a)(2) ; and (3) possessing a visual depiction of a minor engaged in sexually explicit conduct, violating 18 U.S.C. § 2252(a)(4)(B). Doc. 15 at 1–3. After a four-day trial in May 2015, a jury convicted Mr. Kearn on all three charges. Doc. 97 at 1–3. This court sentenced Mr. Kearn to 292 months’ imprisonment on Count One, 240 months’ imprisonment on Count Two, and 120 months’ imprisonment on Count Three, all to run concurrently. Doc. 123 at 2. The court also ordered five years of supervised release. Id. at 3. Mr. Kearn appealed his convictions to the Tenth Circuit. See United States v. Kearn , 863 F.3d 1299, 1302–03 (10th Cir. 2017). The Tenth Circuit affirmed. Id. at 1313 ; see also Doc. 152-1. Mr. Kearn petitioned for a writ of certiorari from the United States Supreme Court, which it denied on May 21, 2018. Doc. 156.
On April 25, 2019, Mr. Kearn filed a Motion for Relief under 28 U.S.C. § 2255 along with 70 exhibits, asking the court to vacate his sentence based on ineffective assistance of trial counsel. See Doc. 157. Mr. Kearn then filed an amended § 2255 motion (Doc. 165) and also filed a Motion to Correct (Doc. 167), asking the court to consider his previously filed exhibits with his amended § 2255 motion. The court granted his Motion to Correct (Doc. 167) and considered Mr. Kearn's previously filed exhibits with his amended § 2255 motion. See Doc. 173.
The court considered and rejected all but one of Mr. Kearn's claims of ineffective assistance of counsel. See generally Doc. 173. The lone surviving claim asserted that Mr. Kearn's counsel had advised him that he could not plead guilty because, if he did, he would commit perjury by accepting responsibility for something he asserted he didn't do. See id. at 20–21 (citing Doc. 165 at 37–38). The court concluded that—on the extant record—it couldn't determine whether Mr. Kearn had received constitutionally adequate representation from counsel about the government's plea offer. So, the court concluded that this claim "may warrant" an evidentiary hearing. Id. at 24. But, citing logistical constraints imposed by the COVID-19 pandemic, the court ordered the government to submit an affidavit from Mr. Kearn's former trial counsel addressing Mr. Kearn's remaining claim. Id. at 24–25. The court noted that "[a]fter all parties have reviewed the affidavit, the court will evaluate next steps and, if an evidentiary hearing is warranted, the steps required to facilitate Mr. Kearn's travel." Id. at 25.
The government then filed an Affidavit from Mr. Kearn's former trial counsel, Mr. Michael Francis, whom the court refers to throughout this Order as "counsel" or "trial counsel." Doc. 178; Doc. 178-1. Counsel's Affidavit contested Mr. Kearn's allegations of ineffective assistance of counsel during the plea process. See Doc. 178-1. The court thus determined that the factual dispute created by the Affidavit required an evidentiary hearing "solely on the issue of whether Mr. Kearn's trial counsel provided effective assistance of counsel when he advised Mr. Kearn about his available plea offers." Doc. 180 at 5–6. The court appointed the Office of the Federal Public Defender for the District of Kansas to represent Mr. Kearn in the evidentiary hearing. Id. at 6–7.
The evidentiary hearing took place on April 19, 2021. Mr. Kearn's counsel called three witnesses: (1) Mr. Kearn's trial counsel, (2) Mr. Kearn, and (3) Branden Bell, a criminal defense attorney with many years of experience in federal court criminal cases. See generally Doc. 204. The court summarizes their testimony in parts B, C, and D. The court begins by summarizing the events surrounding the plea offer and Mr. Kearn's rejection of it, as gleaned from the testimony of Mr. Kearn and his trial counsel. Then, the court summarizes the testimony of Mr. Kearn's trial counsel and Mr. Bell about their experiences with plea bargaining in federal court. These summaries comprise the court's findings providing the factual basis for this Order's ultimate conclusions.
Before Mr. Kearn's criminal trial, the government offered him a Rule 11(c)(1)(C) "binding plea agreement to a 10-year sentence to Count [Three]." Doc. 204 at 33. In exchange for Mr. Kearn's guilty plea to the possession charge in Count Three, the government would've dismissed the production and distribution charges in Counts One and Two of the Indictment. Id. at 37–38. Mr. Kearn's trial counsel recognized this offer as a "huge" deal for Mr. Kearn, who faced a sentence exposure of 292 to 365 months (about 24 to 30 years). Id. at 38.
Mr. Kearn's trial counsel discussed the government's 11(c)(1)(C) plea offer with him just once. Id. at 42–43; see also Doc. 178-1 at 1 (Counsel Aff.).1 During an hour-long meeting in counsel's office, the two discussed the plea offer for about six minutes. Doc. 204 at 43 (Kearn Testimony). During those six minutes, counsel described the 10-year plea offer but advised Mr. Kearn that the court "d[idn't] have to go along with the plea agreement." Id. at 38 (Counsel Testimony). Counsel didn't advise Mr. Kearn to accept or reject the plea offer. Id. at 31 (Counsel Testimony), 45 (Kearn Testimony). He didn't "weigh the pros and cons of that plea offer" with Mr. Kearn. Id. at 45 (Kearn Testimony). Nor did he discuss or explain to Mr. Kearn anything about Federal Rule of Criminal Procedure 11, Rule 11(c)(1)(C). Id. at 44 (Kearn Testimony).
In those six minutes, counsel also advised Mr. Kearn about the need to supply a factual basis for the guilty plea. Id. (Kearn Testimony); see also id. at 30–31 (Counsel Testimony). According to Mr. Kearn, counsel advised him that if he accepted the guilty plea, he "would have to tell the judge [he] was guilty of the crime[.]" Id. at 44. And, counsel continued, because Mr. Kearn claimed he "was not guilty of the crime," he "couldn't honestly say ... to the judge in good conscience" that he was guilty of the crime. Id. (Kearn...
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