United States v. McCall

• Decision Date: 19 March 2014
• Docket Number: CIVIL NO. 1:13cv271-WJG,CRIMINAL NO. 1:10cr63-WJG-RHW
• Court: U.S. District Court — Southern District of Mississippi
• Parties: UNITED STATES OF AMERICA v. ROBERT McCALL

UNITED STATES OF AMERICA v. ROBERT McCALL

CRIMINAL NO. 1:10cr63-WJG-RHW

CIVIL NO. 1:13cv271-WJG

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION

ORDERED: March 19, 2014

ORDER

THIS CAUSE comes before the Court on the motion filed by Robert McCall [McCall] to vacate [35] his conviction pursuant to 28 U.S.C. § 2255. After due consideration of the record in this cause, the Court finds as follows.

McCall was charged in a two-count indictment with possession of material involving the sexual exploitation of children in Count 1, and with transportation of images depicting minor children engaging in sexual explicit conduct in Count 2. [1.] McCall entered a plea of guilty on December 6, 2010, to Count 1 of the indictment, possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). [20.] Sentencing was held on April 29, 2011. [27.]

McCall claims that he is actually innocent of the crime, and that the exception for actual innocence to the statute of limitations imposed under the AEDPA is met in his case. [35, p. 1.] According to McCall, the decision in National Fed. Of Indep. Bus. v. Sebelius¹, establishes that the Court did not have jurisdiction over this case, because child pornography is not regulated under the Commerce Clause. [35, p. 2.]

McCall then sets forth an analysis of economic and non-economic activity and whether specific acts are regulated under the Commerce Clause. [35, pp. 3-7.] McCall asserts that his actions do not constitute criminal intent. [35, pp. 8-10.] He claims that he downloaded files by title only, and that most of those files do not meet the crime charged. [35, pp. 8-9.] He furtherclaims that the automatic downloading of a video or picture based on the title of the file is not enough to form the "knowledge" element of the statute making the act a crime. [35, p. 9.]

According to the United States, McCall voluntarily waived his right to seek post-conviction relief under the terms of the plea agreement in this case. [36, pp. 2, 4.] In addition, the United States asserts that the motion is barred by the one-year statute of limitations. [36, p. 3.] Regarding the claim of innocence, McCall did not object to the factual recitation given by the United States during the guilty plea colloquy. [36, p. 4.] The applicable standard for showing actual innocence has not been shown in this case, according to the United States. [36, p. 5.] The United States also maintains that the interstate nexus element for each violation was satisfied in this case, establishing that the Court had jurisdiction in this case. (Id.)

The judgment in this case was entered on April 29, 2011. [28.] McCall was sentenced to 70 months imprisonment in the custody of the United States Bureau of Prisons [BOP]. [28, p. 2.] He did not file an appeal in this case. McCall filed his motion to vacate on June 26, 2013. [35.]

Discussion

A petition brought pursuant to 28 U.S.C. § 2255 is subject to a one-year limitation period which begins on the latest of four possible dates for a federal prisoner to seek collateral review of his conviction and sentence. The only date relevant in this case is "the date on which the judgment of conviction becomes final." A prisoner's conviction becomes final generally upon the expiration of direct review or the time for seeking direct review. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). When a federal prisoner fails to file a notice of appeal from his conviction (in other words, when he fails to pursue the direct appeal process), the conviction becomes final for purposes of § 2255 upon the expiration of the 10-day period for filing a direct appeal. United States v. Plascencia, 537 F.3d 385, 388-9 (5th Cir. 2008). The judgment in this case was entered on April 29, 2011. [28.] Because no appeal was taken on the judgment, theconviction became final on May 9, 2011, ten days after the judgment was entered. Plascencia, 537 F.3d at 388-9. Accordingly, McCall had until May 8, 2012, to timely file his petition under § 2255. He did not file his § 2255 motion until June 26, 2013, therefore, the motion is untimely. [35.]

A. Tolling of Statute of Limitations

The one-year limitation is not a jurisdictional bar, however, and it can be tolled in appropriate circumstances. United States v. Wynn, 292 F.3d 226 (5th Cir. 2002). The burden of proving that the statute of limitations has been tolled is on the petitioner. Phillips v. Donnelly, 216 F.3d 508, 509-10 (original opinion), and 223 F.3d 797 (5th Cir. 2000) (opinion issued amending language on rehearing). McCall contends that his motion is based on "a new rule of constitutional law" which shows that he is an "actual innocent party, who has been subjected to a complete miscarriage of justice." [35, p. 1.] McCall claims that the new rule of constitutional law is that the Commerce Clause does not give Congress the power to regulate activities that are not commerce, commercial and economic. (Id.) He maintains that the act of downloading free "unseen-unknown file folders by title or search word only, not by thumbnail or picture" means that no commerce was involved, thereby making him innocent of the crime. [35, pp. 4-5.] The Fifth Circuit has determined that internet transmission is sufficient to satisfy the interstate commerce element. See United States v. Runyan, 290 F.3d 223, 239 (5th Cir. 2002), reh'g denied 37 F. Appx. 93 (2002) & cert. denied 537 U.S. 888. Consideration of similar attacks on other criminal statutes have not resulted in a finding that certain criminal statutes were unconstitutional based on the ruling in Sebelius. Compare United States v. Broadus, 515 F. App'x 352, 353 (5th Cir.) cert. denied, 134 S. Ct. 147 (2013) (arson); United States v. Stager, 2014 WL 229372 (5th Cir. 2014); United States v. Alcantar, 733 F.3d 143, 145 (5th Cir. 2013) (Sebelius has not changed the constitutional validity of 18 U.S.C. § 922); United States v.Looman, 542 F. App'x 419 (5th Cir. 2013) cert. denied, 2014 WL 272180 (2014) (felon in possession of a firearm); Stevensv. United States, 2013 WL 3458152, *2-4 (rejecting petitioner's reliance on Sebelius and his argument that under § 2251(a) "his crimes were non-economic and completely intrastate, and thus, there is no valid authority by which Congress could regulate his conduct in this case.") The Fifth Circuit has found child pornography to be commercial in nature, and that Congress may lawfully prohibit intrastate possession of child pornography under the Commerce Clause because it has a substantial impact on interstate commerce. United States v. Kallestad, 236 F.3d 225, 231 (5th Cir. 2000).

The Court concludes that McCall has no basis to argue that he is factually innocent of violating § 2452(a)(4)(B), and finds that his habeas corpus attack on his conviction and sentence should be dismissed, with prejudice, as time-barred. This finding also results in a determination that McCall has no reason to claim that he is actually innocent of the crime or that the Court lacked a jurisdictional foundation for the case. Out of an abundance of caution, however, the Court will further consider the petition as follows.

B. Waiver

On December 6, 2010, McCall, appearing with his attorney, William Wendell Martin, entered a plea of guilty to this Court. [39.] At the hearing, McCall acknowledged that he understood that he was waiving several rights through his plea. [39, p. 7.] In pertinent part, the parties to the hearing stated:

Court: Under the Constitution and laws of the United States, you as a criminal defendant before this court have certain rights. I'm sure Mr. Martin has gone over those with you, but I want to go over them with you because I want to be sure you know and understand what they are because when I finish, I'm going to ask you whether you waive those rights. Okay?

Defendant: Yes, sir.

Court: Do you understand that you are entitled to a trial by jury if you want one?

Defendant: Yes, sir.

* * *

Court: If you plead guilty and I accept your plea of guilty, you understand you're waiving all of these rights I've explained to you?

Defendant: Yes, Judge.

* * *

Court: All right. Now, it is my duty now to explain to you the nature of the charges contained in Count One of the indictment and the maximum possible punishment that I can give you if you plead guilty and I accept your plea. Have you received a copy of the indictment?

Defendant: Yes, Judge.

Court: Have you gone over the charges made against you and any possible defenses you have with your lawyer?

Defendant: Yes, Judge.

Court: Well, I'm going to go over Count One with you because it's short, and I want to be sure there's no doubt in your mind what you're offering to plead guilty to. Count One says that on or about August 28th of last year in Jackson County in the Southern Division of the Southern District of Mississippi, you did knowingly possess at least one matter, specifically an Apevia tower computer which contained one or more visual depictions that had been shipped and transported using any means and facility of interstate and foreign commerce, or had been shipped and transported in and affecting interstate and foreign commerce, or was produced using materials which had been mailed and shipped and transported using any means and facility of interstate and foreign commerce, or was produced using materials which had been shipped in and affecting interstate and foreign commerce, including by a computer the production of such visual depictions involving the use of a minor engaged in sexually explicit conduct and such visual depiction was of such conduct, all in violation of the federal law. Is there any doubt in your mind what you're offering to plead guilty to?

Defendant: No, Your Honor.

Court: You understand if you plead guilty and I accept your plea of guilty, I can sentence you to a maximum of not more than ten years and/or a $250,000 fine? If I give you a period of incarceration, I can follow that with not less than five

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