United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING IN PART MOTION TO VACATE
SENTENCE AND SCHEDULING EVIDENTIARY HEARING
H. CLELAND UNITED STATES DISTRICT JUDGE.
David Crossman was convicted by plea of traveling in
interstate commerce for the purpose of engaging in illicit
sexual conduct under 18 U.S.C. § 2423(b). This court
sentenced Defendant to 56 months incarceration. (See
Dkt. # 31.) Defendant is currently serving five years of
supervised release. (See Dkt. # 47.) Before the
court is Defendant's motion to vacate his sentence under
28 U.S.C. § 2255, filed October 24, 2014. (Dkt. # 32.)
The government filed a response to the motion (Dkt. # 43), to
which Defendant replied (Dkt. # 45). The court found oral
argument unnecessary. (Dkt. # 35.) For the reasons that
follow, the court will deny the bulk of Defendant's
motion and schedule an evidentiary hearing regarding trial
counsel's alleged failure to file a notice of appeal.
§ 2255, a prisoner sentenced by a federal court may
“move the court which imposed the sentence to vacate,
set aside or correct the sentence” on the ground
“that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). As “[§] 2255 is not a substitute
for a direct appeal, ” Regalado v. United
States, 334 F.3d 520, 528 (6th Cir. 2003) (citing
United States v. Frady, 456 U.S. 152, 167-68
(1982)), “a prisoner must clear a significantly higher
hurdle than would exist on direct appeal” to merit
collateral relief, Frady, 456 U.S. at 166.
Consequently, “[t]o prevail on a § 2255 motion
alleging constitutional error, the petitioner must establish
an error of constitutional magnitude which had a substantial
and injurious effect or influence on the proceedings.”
Watson v. United States, 165 F.3d 486, 488 (6th Cir.
1999) (citing Brecht v. Abrahamson, 507 U.S. 619,
637-638 (1993)). Though non-constitutional errors are
generally outside the scope of § 2255 relief, see
United States v. Cofield, 233 F.3d 405, 407 (6th Cir.
2000), a petitioner can prevail on a § 2255 motion
alleging non-constitutional error “by establish[ing] a
‘fundamental defect which inherently results in a
complete miscarriage of justice, or, an error so egregious
that it amounts to a violation of due process, '”
Watson, 165 F.3d at 488 (internal quotation marks
omitted) (quoting United States v. Ferguson, 918
F.2d 627, 630 (6th Cir. 1990)).
grounds his motion mainly upon the alleged inadequacy of his
legal representation. To establish ineffective assistance of
counsel under the Sixth Amendment, Defendant must satisfy the
two-prong test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Defendant must first
show that his counsel's performance was deficient, which
“requires a showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel'
guaranteed by the Sixth Amendment.” Id. at
687. Courts must afford defense attorneys “wide
latitude” and, in analyzing their conduct under the
Sixth Amendment, must make “every effort” to
“eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time.” Id. at 689. Defense
counsel are entitled to a “strong presumption”
that they made “all significant decisions in the
exercise of reasonable professional judgment.”
Cullen v. Pinholster, 131 S.Ct. 1388, 1407 (2011).
Defendant succeeds in proving deficient performance, he must
next show that the deficient performance was prejudicial.
Prejudice requires more than “some conceivable effect
on the outcome of the proceeding”; Defendant must
demonstrate “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.”
Strickland, 466 U.S. at 693-94.
motion, Defendant argues that his guilty plea was not made
knowingly, intelligently or voluntarily; that he received
ineffective assistance from his trial counsel during the
“plea-bargain stage;” that he received
ineffective assistance of counsel during sentencing; and that
his attorney “promised to, but did not, file [a] notice
of appeal.” (See Dkt. # 32.) The court will
address each point in turn.
plea hearing, Defendant testified under oath that he had
“ample time to think about this most important
decision, ” that he had listened to and understood the
advice of his attorneys, that the decision to plead guilty
was his own, and that he understood himself to actually be
guilty of the crime in question. (Dkt. # 40, Pg. ID 235- 37,
246.) Defendant now claims that his guilty plea was not made
knowingly, intelligently, or voluntarily. In support,
Defendant advances four arguments.
Defendant contends that trial counsel and the court
“failed to explain the true nature of the
charges.” (Dkt. # 32, Pg. ID 128.) In particular,
Defendant mistakenly argues that to violate § 2423(b) he
must have “use[d] an interstate instrument to convince
a minor to engage in illegal or illicit sexual
activity” and have “spoke[n]” to a minor
using such an instrument. (Dkt. # 32, Pg. ID 128.) But as the
court explained at the plea hearing, Defendant's crime
requires only that he have (1) knowingly traveled
“across state lines” (2) “at least in part
for the purpose of engaging or expecting to engage in sexual
conduct . . . with someone who had not attained the age of
majority.” (Dkt. # 40, Pg. ID 239-40); see also
United States v. Wise, 278 Fed.Appx. 552, 558 (6th Cir.
2008) (“For Wise to have been found guilty under 18
U.S.C. § 2423(b), the Government was required to prove
that: (1) Wise traveled in interstate commerce; (2) his
purpose was to engage in illicit sexual activity with a minor
(person less than 18 years of age); and (3) the intended
sexual act would have been in violation of federal law had it
been committed.”). Defendant points to no authority to
support his contention that § 2423(b) has any additional
elements. Neither the court nor trial counsel erred in this
Defendant argues that his guilty plea was not made knowingly
because trial counsel did not inform him of the strength of
the government's case and a possibility that he could
defend himself based on “character” evidence.
(Dkt. # 32, Pg. ID 128.) In the Sixth Circuit,
“challenges to the weight or credibility of the
evidence do not establish innocence, and claims of
insufficient evidence short of establishing actual innocence
will not be reviewed in a § 2255 proceeding. Goward
v. United States, 569 Fed.Appx. 408, 411-12 (6th Cir.
2014) (citing Zack v. United States, 28 F.3d 1215
(6th Cir. 1994)). Defendant points to nothing to establish
his actual innocence.
Defendant argues that he was unaware of a possible entrapment
defense. (Dkt. # 32, Pg. ID 129.) Entrapment requires
“proof of two elements: (1) government inducement of
the crime, and (2) a lack of predisposition on the part of
the defendant to engage in the criminal activity.”
United States v. Khalil, 279 F.3d 358, 364 (6th Cir.
2002) (citing United States v. Nelson, 922 F.2d 311,
317 (6th Cir. 1990)). Defendant never addresses the first
element. With respect to the second element, Defendant argues
simply that “it is undisputed that [Defendant] did not
seek out an underage male partner, but rather sought out a
young adult[.]” (Dkt. # 32, Pg. ID 129.) The court
stated both in the plea agreement and under oath during the
plea hearing, Defendant traveled from Atlanta to Detroit
intending to meet with a person he believed to be a
fourteen-year-old boy and his stepfather in order to engage
in sexual activity with the boy. (Dkt. # 27, Pg. ID 65-66;
Dkt. # 40, Pg. ID 247-48.) And as the government points out,
Defendant's communications to the undercover agent, who
Defendant believed was a stepfather offering his minor
stepson for sex with Defendant, indicated his specific
attraction to the minor. (Dkt. # 41, Pg. ID 267-68, 273.) In
particular, Defendant's comments that he was
“drooling” thinking about the fourteen-year-old,
describing the sex acts Defendant intended to perform on the
boy, and asserting ...