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United States v. Crossman

United States District Court, E.D. Michigan, Southern Division

March 30, 2017




         Defendant 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.

         I. STANDARD

         Under § 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)).

         Defendant 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).

         If 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.


         In his 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.

         A. Guilty Plea

         At the 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.

         First, 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 respect.

         Second, 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.

         Relatedly, 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 disagrees.

         As 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 ...

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