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Koontz v. United States

United States District Court, M.D. North Carolina

April 28, 2017

DONALD STUART KOONTZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          Thomas D. Schroeder United States District Judge

         Before the court is the motion by Petitioner Donald Stuart Koontz to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. 11.) The motion is fully briefed and ready for decision. For the reasons set forth below, the motion will be denied.

         I. BACKGROUND

         Petitioner was indicted by a federal grand jury in the Middle District of North Carolina on December 16, 2013. (Doc. 1.)[1] The sole count of the Indictment alleged that from July 19, 2013, through August 22, 2013, Petitioner “knowingly received child pornography . . . that had been mailed, and using any means and facility of interstate and foreign commerce shipped and transported in and affecting interstate and foreign commerce by any means, including by computer, ” in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1).

         On January 17, 2014, Petitioner pled guilty to the Indictment pursuant to a written plea agreement. (Doc. 6.) He was advised of each of the elements of the offense that the Government would be required to prove at trial and acknowledged that by pleading guilty he was admitting each of these essential elements, including that the child pornography he received had been mailed, shipped, or transported in interstate or foreign commerce.

         A sentencing hearing was held on May 16, 2014. The court adopted the Presentence Investigation Report (“PSR”) without objection. (Doc. 18 at 3-4.) The PSR detailed Petitioner's possession of 145 videos depicting child pornography, which Petitioner had downloaded from the Internet. (Doc. 8 at 3-4.) The court sentenced Petitioner to 121 months imprisonment and ten years of supervised release. (Doc. 18 at 24.)

         Petitioner did not appeal his sentence or conviction, but he timely filed the present motion on April 10, 2015, which seeks to collaterally attack his sentence and conviction. He advances two arguments founded upon the Commerce Clause: (1) that Congress lacked authority under the Commerce Clause to pass the Child Pornography Prevention Act, 18 U.S.C. § 2251 et seq., and (2) that the statute was “applied to him unconstitutionally” because the child pornography he possessed “[had] never moved in any commercial activity.” (Doc. 11 at 11, 21, 43.) The Government responded on June 26, 2015, noting that this is the first time Petitioner has raised these claims. (Doc. 14.) On February 8, 2017, Petitioner filed a motion to expedite. (Doc. 19.)

         II. ANALYSIS

         A petitioner may collaterally attack a conviction or sentence if it “was imposed in violation of the Constitution.” 28 U.S.C. § 2255(a). At no time before judgment - including at his change of plea hearing or at sentencing - did Petitioner argue that the application of the child pornography statute is unconstitutional, either facially or as applied to him. Nor did Petitioner file any appeal.

         “In order to collaterally attack a conviction or sentence based upon errors that could have been but were not pursued on direct appeal, the movant must show cause and actual prejudice resulting from the errors of which he complains or he must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack. See United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir. 1994). The existence of cause for a procedural default must turn on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). And, in order to demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack, a movant must show actual innocence by clear and convincing evidence. See id. at 496, 106 S.Ct. 2639.” United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999).

         “As the Supreme Court has admonished, '[h]abeas review is an extraordinary remedy and will not be allowed to do service for an appeal.' Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal citations omitted). 'Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either "cause" and actual "prejudice, " or that he is "actually innocent."' Id. at 622, 118 S.Ct. 1604 (internal citations omitted)." United States v. Sanders, 247 F.3d 139, 144 (4th Cir. 2001). To demonstrate actual innocence, a defendant must show “actual factual innocence of the offense of conviction, i.e., that petitioner did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent.” Mikalajunas, 186 F.3d at 494 (emphasis in original) (citing Sawyer v. Whitley, 505 U.S. 333, 339-41 (1992)).

         Here, Petitioner does not acknowledge the proper standard of review for his claims and consequently fails to explain how he can meet this bar. However, because Petitioner's arguments are meritless for the reasons that follow, it is clear that Petitioner cannot demonstrate that his counsel's failure to raise them fell below an objective standard of reasonableness and caused prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Similarly, Petitioner does not even argue, nor can he show, that he is actually innocent of the offense.

         The Commerce Clause of the United States Constitution provides that Congress shall have the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3. Under the Commerce Clause, Congress may regulate three broad categories of activity: (1) “the use of the channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce”; and (3) “those activities that substantially affect interstate commerce.” United States v. Lopez, 514 U.S. 549, 558-59 (1995).

         Petitioner first contends that Congress “lacked the authority to enact the Child Pornography Prevention Act, ” 18 U.S.C. § 2251 et seq., under the Commerce Clause. (Doc. 11 at 21.) This argument has been rejected summarily on multiple occasions. See United States v. White, 2 F.App'x 295, 297 (4th Cir. 2001)[2] (finding “unavailing” the argument that interstate commerce nexus requirement in § 2252A(a)(5)(B) (1998)[3] did not satisfy the Commerce Clause); United States v. Wyatt, 64 F.App'x 350, 351-52 (4th Cir. 2003) (analyzing same language - but under § 2252A(a)(5)(B) (2000) - to hold that the statute “is not an unconstitutional exercise of congressional authority”); United States v. Harden, 45 F.App'x 237, 241 (4th Cir. 2002) (citing with support United States v. Bausch, 140 F.3d 739, 741 (8th Cir. 1998), and United States v. Robinson, 137 F.3d ...


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