United States v. Williamson
| Decision Date | 23 September 2019 |
| Docket Number | CIVIL ACTION No. 18-2667-KHV,CRIMINAL ACTION No. 13-20011-01-KHV |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. BRETT J. WILLIAMSON, Defendant. |
| Court | U.S. District Court — District of Kansas |
UNITED STATES OF AMERICA, Plaintiff,
v.
BRETT J. WILLIAMSON, Defendant.
CRIMINAL ACTION No. 13-20011-01-KHV
CIVIL ACTION No. 18-2667-KHV
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
September 23, 2019
MEMORANDUM AND ORDER
This matter is before the Court on defendant's pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #210) filed December 6, 2018 and pro se Motion For Summary Judgment (Doc. #227) filed July 15, 2019. The government opposes defendant's Section 2255 motion; the government did not respond to his summary judgment motion. Government's Response To Defendant's Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #225) filed May 28, 2019. For reasons stated below, the Court overrules defendant's Section 2255 motion, denies a certificate of appealability and overrules as moot defendant's motion for summary judgment.
On May 14, 2014, a grand jury returned an indictment which charged defendant with three counts of attempting to employ, use, persuade, induce, entice and coerce a minor to engage in sexually explicit conduct for the purpose of transmitting a live visual depiction of such conduct, and transmitting the visual depiction in interstate commerce, in violation of 18 U.S.C. § 2251(a) (Counts 1, 2 and 3); and three counts of using a facility of interstate commerce to attempt to
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persuade, induce, entice and coerce an individual under the age of 18 to engage in sexual activity for which a person could be charged with a criminal offense, in violation of 18 U.S.C. § 2422(b) (Counts 4, 5 and 6). Superseding Indictment (Doc. #72) at 1-3.
Initially, Assistant Federal Public Defender Thomas Bartee represented defendant. On May 23, 2013, Bartee filed a motion to withdraw, which the Court sustained. Motion To Withdraw (Doc. #22). On May 29, 2013, the Court appointed Robin Fowler as defense counsel. Doc. #27. On February 7, 2014, Fowler filed a motion to withdraw. Motion To Withdraw As Counsel (Doc. #45). After a hearing on February 11, 2014, the Court overruled his motion. Doc. #47. On May 30, 2014, the Court overruled defendant's motion to reconsider its prior rulings not to appoint new counsel. Memorandum And Order (Doc. #86). On June 4, 2014, defendant filed his pro se Motion To Relieve Counsel And Continue Pro Se (Doc. #94), which the Court construed as a second motion to reconsider its prior rulings not to appoint new counsel and, in the alternative, a request to proceed pro se. The Court overruled defendant's motion. Memorandum And Order (Doc. #95) filed June 4, 2014. On June 6, 2014, the Honorable Julie A. Robinson conducted a hearing on defendant's request to proceed pro se. Order (Doc. #102). Although she recommended against it, Judge Robinson found that defendant had knowingly and voluntarily waived his right to counsel and allowed him to proceed pro se with Fowler as standby counsel. Id. at 1-2.
On June 11, 2014, a jury found defendant guilty on all counts. On May 28, 2015, the Court sentenced him to 30 years in prison on Counts 1 through 3 and life in prison on Counts 4 through 6, to run concurrently.
Defendant appealed the Court's judgment and sentence. Assistant Public Defender Melody Brannon represented him on appeal. On July 26, 2017, the Tenth Circuit affirmed. See
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United States v. Williamson, 859 F.3d 843 (10th Cir. 2017). On October 16, 2017, defendant filed a petition for a writ of certiorari, which the Supreme Court denied on March 26, 2018. See Williamson v. United States, 138 S. Ct. 1324 (2018).
On December 6, 2018, defendant filed this motion to vacate his sentence and on April 1, 2019, he filed a supplement to his motion. Motion To Vacate (Doc. #210); Certified Supplement To Defendant's Motion To Vacate, Set Aside Or Correct Sentence (Doc. #220). In his motion, defendant cites the following grounds for relief: (1) the indictment failed to state an offense; (2) the Court lacked subject matter jurisdiction; (3) the cumulative actions of the government, defense counsel and the Court deprived him of a fair trial; and (4) 18 U.S.C. § 2251(a) and K.S.A. § 21-5510 are unconstitutional. Defendant did not raise these arguments on direct appeal.
On May 28, 2019, the government filed a response to defendant's motion. It requests that the Court deny defendant's motion in its entirety, deny his request for an evidentiary hearing and decline to issue a certificate of appealability. Government's Response (Doc. #225) at 1. More specifically, the government argues that defendant's claims are procedurally defaulted because he failed to raise them on direct appeal and he fails to show ineffective assistance.
The Court applies a stringent standard of review when analyzing a Section 2255 petition and presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). Section 2255 precludes defendant from raising issues he did not address in his direct appeal unless he can show cause excusing his procedural default and actual prejudice resulting from the errors of which he complains, or that a fundamental miscarriage of justice will occur if the Court does not address his claim. United
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States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)).1
As noted, defendant asserts the following grounds for relief: (1) the indictment failed to state an offense; (2) the Court lacked subject matter jurisdiction; (3) the cumulative actions of the government, defense counsel and the Court deprived him of a fair trial; and (4) 18 U.S.C. § 2251(a) and K.S.A. § 21-5510 are unconstitutional. As to claim 3, defendant attaches a lengthy addendum (13 single-spaced pages) with sub-claims and allegations labeled A through Q. As to claims 2, 3 and 4, defendant's supplement adds 20 pages of supporting allegations. The government argues that all of defendant's claims are procedurally defaulted because he did not raise them on direct appeal. To excuse his procedural default, defendant argues ineffective assistance of counsel on appeal, but he does not show that appellate counsel's performance was deficient or prejudiced him in any way.
To establish ineffective assistance of appellate counsel, defendant must show that counsel's performance fell below an objective standard of reasonableness and that the deficient performance was prejudicial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudicial performance, defendant must show a "reasonable probability" that but for counsel's unprofessional errors, the result of the appeal would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome. See id. at 694. Furthermore, actual ineffectiveness claims which allege a deficiency in counsel's performance are subject to a
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general requirement that defendant affirmatively prove prejudice. United States v. Reed, 766 F. App'x 661, 671 (10th Cir. 2019). The Court need not address whether counsel's performance was deficient if defendant cannot establish prejudice. See United States v. Jones, 852 F.2d 1275, 1277 (10th Cir. 1988). The burden is on defendant to show that he is entitled to relief by a preponderance of the evidence. Sa'Ra v. Raemisch, 536 F. App'x 783, 787-88 (10th Cir. 2013).
Although it is possible to bring a Strickland claim based on appellate counsel's failure to raise a particular issue, it is difficult to show deficient performance under those circumstances because counsel need not and should not raise every nonfrivolous claim on appeal. See Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (citing Smith v. Robbins, 528 U.S. 259, 288 (2000)). To evaluate appellate counsel's performance, the Court looks to the merit of the omitted issue. Id. Counsel's failure to raise a meritless issue does not constitute deficient performance. Id.
For substantially the reasons stated below, each of defendant's four claims lack substantive merit. Accordingly, appellate counsel's failure to raise these issues was not deficient and did not prejudice defendant.
I. Sufficiency Of The Indictment (Claim 1)
Defendant argues that the indictment was legally insufficient because (A) Counts 1 through 6 do not allege that defendant knew or believed that on account of the victim's2 youth, she was incapable of appreciating the nature of the conduct at the time of the offense, or he knew the victim was a minor; (B) Counts 1 through 6 do not identify the nature of the sexual conduct at issue; (C) Counts 1 through 3 fail to identify the victim; (D) Counts 4 through 6 do not identify which
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provision of K.S.A. § 21-5510 he allegedly violated; and (E) Counts 4 through 6 allege violations of K.S.A. § 21-5510 instead of federal criminal offenses. Motion To Vacate (Doc. #210) at 5.
An indictment need only meet minimal constitutional standards, and the Court determines whether the indictment was sufficient by practical rather than technical considerations. United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997). An indictment is sufficient if it (1) contains the elements of the charged offense, (2) fairly informs defendant of the charge against which he must defend and (3) enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007); United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006). If the statute itself adequately states the elements of the offense, an indictment is sufficient if it generally sets outs the words of the statute. United States v. Darrell, 828 F.2d 644, 647 (10th Cir. 1987).
A. Defendant's Knowledge Of Victim's Age
Defendant asserts that the indictment failed to state an offense under 18 U.S.C. §§ 2251(a) (Counts 1-3) or 2422(b)...
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