RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

JOHN C. NIVISON, Magistrate Judge.

In this action, Petitioner Timothy S. Klimas moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 78.) In July 2016, following a guilty plea, Petitioner was convicted of sexual exploitation of children, 18 U.S.C. § 2251(a), (e), and transportation of child pornography, 18 U.S.C. § 2252A(a)(1), (b)(1); the Court sentenced Petitioner to 600 months in prison.1 (Judgment, ECF No. 74 at 1-2.) Petitioner did not appeal from the conviction or the sentence.

Petitioner essentially contends that Title 18 U.S.C. § 2251(a) constitutes an unconstitutional exercise of Congressional power under the Commerce Clause of the United States Constitution, because the statute regulates activity that lacks a nexus with interstate commerce; Petitioner apparently also alleges his activities did not have a substantial effect on interstate commerce. (Motion at 4; Attachment, ECF No. 78-1 at 5-7.) Petitioner asserts a related claim of ineffective assistance for counsel's alleged failure to explain the appeals process to him.2 (Motion at 5.)

Following a review of Petitioner's motion and the Government's request for dismissal, I recommend that the Court grant the Government's request, and dismiss Petitioner's motion.

I. DISCUSSION

A. Legal Standards

A person may move to vacate his or her sentence on one of four different grounds: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "that the court was without jurisdiction" to impose its sentence; (3) "that the sentence was in excess of the maximum authorized by law"; or (4) that the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).

The burden is on the section 2255 petitioner to establish by a preponderance of the evidence that he or she is entitled to section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978).

A collateral challenge is not a substitute for an appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002). "Accordingly, a defendant's failure to raise a claim in a timely manner at trial or on appeal constitutes a procedural default that bars collateral review, unless the defendant can demonstrate cause for the failure and prejudice or actual innocence." Berthoff, 308 F.3d at 127-28. Procedural default is an affirmative defense. Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010).

An allegation of ineffective assistance of counsel can excuse a procedural default, but only if the petitioner demonstrates both that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced the petitioner's defense. Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)). A district court reviewing a claim of ineffective assistance of counsel need not address both prongs of the test because a failure to meet either prong will undermine the claim. Strickland, 466 U.S. at 697. If a petitioner's "claims fail on the merits, his related claims that counsel rendered ineffective assistance in failing to press the claims at trial or on appeal must also fail." Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002) (per curiam).

B. Claim and Analysis

Although Petitioner challenges both statutes of conviction, i.e., 18 U.S.C. § 2251(a) and 18 U.S.C. § 2252A, his challenge appears to focus on the production, rather than the transportation, of child pornography. (Attachment, ECF No. 78-1 at 5-7.) Petitioner's claim, therefore, necessarily relates solely to section 2251(a).3

Petitioner contends the Court lacked subject matter jurisdiction over the criminal charges. (Attachment at 10.) A Commerce Clause challenge does not implicate the Court's subject matter jurisdiction. See United States v. Sealed Appellant, 526 F.3d 241, 243 & n.4 (5th Cir. 2008) (quoting United States v. Martin, 147 F.3d 529, 531-32 (7th Cir. 1998)) (noting that a section 2251(a) interstate commerce nexus argument "`is not jurisdictional in the sense that it affects a court's subject matter jurisdiction, i.e., a court's constitutional or statutory power to adjudicate a case . . . .'").

In addition, the First Circuit has rejected a Commerce Clause challenge to 18 U.S.C. § 2251(a). See United States v. Poulin, 631 F.3d 17, 20-22 (1st Cir. 2011). In Poulin, the Court noted that in United States v. Morales-De Jesús, 372 F.3d 6 (1st Cir. 2004), it had

Poulin, 631 F.3d at 20-21 (citing Morales-De Jesús, 372 F.3d at 14-17 (relying on Wickard v. Filburn, 317 U.S. 111 (1942))).

Petitioner's underlying claim that section 2251(a) is unconstitutional is controlled by Poulin and Morales-De Jesús, and thus Petitioner's Commerce Clause claim fails. Because the underlying claim fails, the related ineffective assistance claim also fails. See Tse, 290 F.3d at 465.

II. CONCLUSION

Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule 8 of the Rules Governing Section 2255 Cases. In addition, I recommend that the Court deny Petitioner's motion for habeas relief under 28 U.S.C. § 2255. I further recommend that the Court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Cases because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).

NOTICE