United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
D. Schroeder United States District Judge
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.
was indicted by a federal grand jury in the Middle District
of North Carolina on December 16, 2013. (Doc.
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)
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.
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.)
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.
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
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).
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)).
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.
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).
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) (finding
“unavailing” the argument that interstate
commerce nexus requirement in § 2252A(a)(5)(B)
(1998) 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 ...