COLLEEN KOLLAR-KOTELLY, District Judge.
Presently before the Court is Petitioner Randall Casseday's [28] Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. Casseday pled guilty to one count of Possessing Material Constituting or Containing Child Pornography, 18 U.S.C. § 2252(a)(4)(B), and one count of Enticing a Child (attempted), Section 216(d) of the District of Columbia Omnibus Public Safety Congressional Review Emergency Act of 2006, Act 16-445, amending D.C.Code § 22-3010. On February 15, 2007, this Court sentenced Casseday to a total of 90 months' imprisonment pursuant to a plea agreement voluntarily entered into pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). On February 19, 2008, Casseday filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, claiming that the Court violated Federal Rule of Criminal Procedure 11 during sentencing by failing to ensure that the guilty plea was voluntary and to determine that there was a factual basis for the plea. He also claimed that his counsel was constitutionally ineffective for failing to file a notice of appeal. On May 1, 2008, Casseday filed an amended § 2255 motion claiming that the Court violated Rule 11 when it failed to inform him of the reasons for his sentence as required by 18 U.S.C. § 3553(c) and claiming that his conviction was based on evidence seized in violation of the Fourth Amendment. The Government filed a consolidated opposition to Casseday's motion and amended motion, and Casseday filed a response brief. Casseday also filed supplemental materials on April 2, 2009, July 30, 2009, and August 26, 2009, in which he appears to assert additional claims pertaining to alleged constitutional violations during his arrest. Casseday also claims in his last supplemental filing that he was coerced by his counsel into answering one of the Court's questions during the plea colloquy affirmatively, thus professing his intent during an online chat to entice a person purporting to be a minor child into performing a sexual act.
Petitioner Randall G. Casseday was arrested by the District of Columbia Metropolitan Police Department ("MPD") on September 26, 2006, following an online sting operation during which Casseday sent images of child pornography to an undercover MPD officer posing as a 13 year old girl. On October 31, 2006, Casseday was charged by Information with three counts: (1) Enticing a Minor in violation of 18 U.S.C. § 2422(b); (2) Possessing Material Constituting or Containing Child Pornography in violation of 18 U.S.C. § 2252(a)(4)(B); and (3) Enticing a Child (attempted) in violation of the D.C. Omnibus Public Safety Congressional Review Emergency Act of 2006, Act 16-445, § 216(d).
On October 31, 2006, the United States sent a written plea agreement to Casseday's defense counsel, Assistant Federal Public Defender Danielle Jahn. See Plea Agreement, Docket No. [15]. The plea agreement provided that Casseday would agree to admit guilt and enter a plea of guilty to Counts Two (Possession of Child Pornography) and Three (Enticing a Child), punishable by up to ten and five years, respectively. See id. ¶ 1. The United States agreed to dismiss Count One of the Information, the federal enticement charge, at sentencing. Id. ¶ 10. In addition, the Government agreed not to bring additional charges against Casseday in connection with the conduct described in the Statement of Facts to be signed by the parties and submitted to the Court. Id. The plea agreement provided that, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the parties would agree to a
On the last page of the plea agreement there is a signature page with a heading entitled "Defendant's Acceptance." The paragraphs under this heading read as follows:
See Plea Agreement at 6. On November 20, 2006, Casseday signed and dated the plea agreement immediately below these paragraphs. Casseday's counsel, Ms. Jahn, also signed and dated the agreement acknowledging that she had discussed its provisions fully with Casseday and that she concurred in her client's desire to plead guilty. Id.
On the same day as the initial plea colloquy, November 20, 2006, Casseday signed a Statement of Facts that describes in detail the factual basis supporting the plea agreement. See Statement of Facts ("SOF"), Docket No. [16]. The Statement of Facts provides that the parties stipulate and agree that the facts contained therein are true and that they are being submitted to demonstrate that there is probable cause that Casseday committed the offenses to which he is pleading guilty. The Statement of Facts includes the following factual statements:
The Statement of Facts is signed by Casseday, Ms. Jahn, and Assistant United States Attorney Patricia Stewart.
A plea hearing was held before this Court on November 20, 2006. At the outset of the hearing, Casseday was presented with a copy of the Information and waived a formal reading of it. See 11/20/06 Tr. at 3. Casseday entered a plea of not guilty to Count One of the Information and a plea of guilty to Counts Two and Three of the Information. Casseday was then placed under oath and began a colloquy with the Court regarding the plea agreement. See id. The Court informed Casseday that he could "consult with [his] lawyer at any time" if he needed to ask her any questions and explained to him that "you can't just sort of change your mind in a week and say, Well, you know, I've changed my mind, Judge." Id. at 4.
The Court asked Casseday if he had reviewed the plea agreement, and Casseday indicated that he had gone over it with his attorney face to face and read it carefully. Id. at 8-9. He further indicated that he was completely satisfied with the services of his lawyer. Id. at 9. The Court asked whether Casseday had enough time to discuss the plea agreement with his lawyer. Id. Casseday indicated that there had been problems getting in contact with Ms. Jahn, and the Court asked Casseday to speak up if he needed additional time to make a decision. Id. at 10-11. Casseday explained that he had "raised issues with [Ms. Jahn] about he plea agreement, and from what I understand it is what it is." Id. at 11. He said he asked Ms. Jahn to negotiate a better deal with the Government, but he said "if there's no room for negotiation, then I believe I have to accept what they've offered me." Id. at 12. The Assistant U.S. Attorney at the hearing, Ms. Stewart, indicated that the Government was not willing to negotiate further and that she had communicated that to Ms. Jahn. Id. Casseday stated that he understood what he was agreeing to and that he had had enough time to make a decision about whether to accept the plea offer. Id. at 11,14.
The Court confirmed that Casseday was aware of his constitutional rights and that he waiving certain of those rights by entering a plea agreement. See 11/20/06 Tr. at 14-17. The Court also discussed the nature of the plea agreement under Rule 11(c)(1)(C) and the specific provision in the plea agreement that allows either Casseday or the Government to withdraw the plea if it is not accepted by the Court. See id. at 19-28. Casseday indicated that he understood. Id. at 28.
The prosecutor, Ms. Stewart, then offered a factual proffer based on the information in the written Statement of Facts. See 11/20/06 Tr. at 28-32. During the proffer, Ms. Stewart stated that the CD recovered from Casseday's desk contained at least ten images of child pornography, "and all of them at some point had been transmitted in interstate commerce." Id. at 32.
The Court then reviewed the elements of Count Two:
11/20/06 Tr. at 32 (emphasis added). Ms. Stewart interrupted the Court's recitation of elements to note that the case involved a CD, not videotapes. Id. at 32-33. The Court then completed the recitation of elements for Count Two, reading in part the definition of sexually explicit conduct. Id. at 33. The Court then proceeded to recite the elements of Count Three, the enticement charge. Id. at 33-34.
The Court asked Casseday whether he had signed the Statement of Facts, and he indicated that he had. Id. at 34. The Court then asked him several times whether there was anything in the Statement of Facts with which he disagreed. Id. at 34-35.
Id. at 41-42. The Court then asked Casseday whether there was "[a]nything else I need to know from a factual perspective?" Id. at 42. Casseday responded that there was not, and Ms. Jahn agreed. Id.
The Court then reviewed the terms of the written plea agreement. Id. at 42-53. The Court discussed how the advisory sentencing guidelines would be calculated with respect to Counts Two and Three. Id. at 53-58. The Court confirmed with Casseday that no other promises had been made to him about the plea or sentence other than those stated in the plea agreement. See id. at 59-60. The Court asked Casseday if he was entering the plea voluntarily and of his own free will, and Casseday responded affirmatively. Id. at 60. The Court asked Casseday if he was pleading guilty because he was in fact guilty of the charges, and he responded affirmatively. Id. The Court asked Casseday if there was anything he did not understand about his plea, and he responded that there was nothing he did not understand. Id. The Court then asked Casseday how he pleaded to Counts Two and Three, and he responded that he was pleading guilty. Id. at 60-61. The Court then concluded the plea colloquy and scheduled a date for the sentencing.
Following the plea colloquy, the parties realized that the sentence agreed upon in the plea agreement—30 months for Count Two and 60 months for Count Three—was inappropriate because the D.C. Code prohibited a sentence of 60 months for the enticement charge in Count Three. Therefore, the parties agreed to "flip" the sentence so that Casseday would serve 60 months for Count Two and 30 months for Count Three, to run consecutively, which would total the same 90 months agreed to in the earlier plea agreement. On December 21, 2006, this Court held a hearing with Casseday present to discuss this modification to the plea agreement. See 12/21/06 Tr. at 65-66. The Court explained that a 60-month sentence for Count Two would constitute a variance from the advisory sentencing guidelines range of 30 to 37 months but would be less than the statutory maximum of ten years. Id. at 66. The Court held the hearing in order to put on the record the reasons why the Government was offering this plea arrangement and why a variance from the
Ms. Stewart explained that Casseday was initially charged by Information with a violation of 18 U.S.C. § 2422(b), enticement of a minor, which carried a mandatory minimum sentence of ten years. See id. at 67-68. She further explained that if Casseday went to trial and was convicted on this charge as well as the child pornography charge in Count Two, he would face a ten-year mandatory minimum sentence for Count One plus a guidelines range of approximately four to five years for Count Two. Id. Therefore, the plea of 90 months would be substantially less than the fourteen or fifteen years Casseday might have faced if he had gone to trial if the sentences ran consecutively. Ms. Stewart also set out the reasons the government had decided to make this plea offer. See id. at 67-69. The Court explained in detail to Casseday that "the advantage to you is to get dismissed the federal enticement charge, because that one, even though the sentencing guidelines—whether or not you accepted responsibility—would be less than—quite a bit less than the 10 years which you're now facing." Id. at 75. Casseday indicated that he understood that this would be a variance from the sentencing guidelines and that he understood the advantage of avoiding a ten-year mandatory minimum sentence and that this was the reason he was accepting the plea. Id. at 76. Casseday also reaffirmed that he understood his constitutional rights and was waiving them and that he was entering the plea voluntarily. Id. at 76-77. Casseday agreed to adopt his responses from the plea hearing held a month earlier on November 20, 2006. Id.
The Court then reviewed in detail the amendment to the plea agreement, which was memorialized in a letter dated December 19, 2006, and signed by counsel for both parties and by Casseday. See Plea Agreement Letter (Dec. 19, 2006), Docket No. [21]. Casseday indicated that he understood the amendment to the plea agreement. See 12/21/06 Tr. at 76-84. With respect to the "flipped" sentence, the Court explained in part that "although it's in a variance from the advisory sentencing guidelines in both federal and DC, and the sentence is higher than the guidelines, the advantage to you still is to get rid of the— and have dismissed the charge that you would be facing with the mandatory minimum." Id. at 84-85. Casseday indicated that he understood. Id. at 85.
The Court held the sentencing hearing on February 15, 2007. The Court accepted the plea agreement under Rule 11(c)(1)(C), indicating that there were "justifiable reasons" for the sentence which the government had set out and the Court would adopt. See 2/15/07 Tr. at 5. The Court also adopted the presentence report ("PSR") as written. Id. at 6. The PSR stated in part that the CD found at Casseday's desk contained at least ten images of child pornography which had traveled in interstate commerce by means of the internet prior to coming into Casseday's possession. See PSR ¶ 16. Defendant did not object to this statement in the PSR. See Receipt & Acknowledgment of Presentence Investigation Report, Docket No. [24].
The Court identified the factors it was considering in determining an appropriate and reasonable sentence pursuant to 18 U.S.C. § 3553(a). The Court noted the factors set forth by the Government in favor of the plea agreement, Casseday's personal background, the facts of the case, the harms to the victims, and Casseday's early acceptance of responsibility. See 2/15/07 Tr. at 27-34. The Court sentenced Casseday to serve a term of 60 months imprisonment on Count Two and a consecutive
Id. at 41. The judgment was docketed on February 20, 2007.
Casseday did not file an appeal challenging his conviction or sentence. According to his affidavit in support of his § 2255 motion, Casseday spoke with Ms. Jahn by telephone approximately 3-4 days after sentencing and requested that she file a Notice of Appeal challenging the conviction or sentence. See Pet'r's Aff. ¶ 14. Casseday also claims that he sent a letter dated February 28, 2007 to Ms. Jahn requesting that she file a notice of appeal. Id. ¶ 16; Pet'r's Reply at 8. However, Casseday has not produced a copy of this letter. According to Casseday, Ms. Jahn never consulted with him regarding the benefits or consequences of seeking relief through an appeal. See Pet'r's Aff. ¶ 18. According to a declaration submitted by Ms. Jahn, she consulted with Casseday after the sentencing and informed him that because he had agreed to the sentence in the plea agreement, there was no basis for an appeal. See Gov't Opp'n, Ex. G. (Decl. of Danielle C. Jahn) ¶ 3. Ms. Jahn states that Casseday did not ask her to file an appeal or suggest that an appeal be filed either during that conversation or in the various letters that Casseday has sent her since the sentencing. Id. ¶¶ 3-7. Ms. Jahn does not have a copy of any letter from Casseday dated February 28, 2007, in her file. See id. ¶ 4, 9.
On February 19, 2008, Casseday filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion"). In his § 2255 Motion and memorandum in support thereof, Casseday asserts three claims: (1) that the Court violated Rule 11 when it failed to inform him of the elements of the crime charged and determine that he understood the nature of the charge (specifically, that one of the elements of Count Two was that the images of child pornography had traveled in interstate commerce); (2) that the Court violated Rule 11 by failing to ascertain that a factual basis existed for his plea; and (3) that he received ineffective assistance of counsel when Ms. Jahn failed to file a timely notice of appeal. Casseday also alleges that his counsel was constitutionally ineffective for failing to object to the Court's errors.
On May 1, 2008, Casseday filed an Amended 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence by a Prisoner in Federal Custody Pursuant to Rule 15 of Federal Civil Judicial Procedure ("Amended § 2255 Motion"). Casseday's Amended § 2255 Motion presented two additional claims: (1) that the Court violated Rule 11 when it failed to inform him of the reasons for the sentencing package as required by 18 U.S.C. § 3553(c); and (2) his conviction is based on evidence (the CD) that was seized in violation of the Fourth Amendment.
On September 9, 2008, the Government filed a Consolidated Opposition to Casseday's
Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that his sentence was imposed "in violation of the Constitution or laws of the United States . . . or that the sentence was in excess of the maximum authorized by law. . . ." 28 U.S.C. § 2255. The circumstances under which such a motion will be granted, however, are limited in light of the premium placed on the finality of judgments and the opportunities prisoners have to raise most of their objections during trial or on direct appeal. See United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) ("Once the defendant's chance to appeal has been waived or exhausted, . . . we are entitled to presume he stands fairly and finally convicted, especially when . . . he already has had a fair opportunity to present his federal claims to a federal forum."). Two such limitations are particularly relevant to the present motion.
First, a prisoner cannot raise a claim on collateral appeal that was raised and adjudicated on direct appeal, unless there has been an intervening change in law. United States v. Greene, 834 F.2d 1067, 1070 (D.C.Cir.1987). Id (citing Garris v. Lindsay, 794 F.2d 722, 726-27 (D.C.Cir.1986)). Second, a prisoner may not raise a claim on collateral appeal that he could have contested on direct appeal unless he can first demonstrate either: (1) "cause" for his failure to do so and "prejudice" as a result of the alleged violation, or (2) "actual innocence" of the crime of which he was convicted. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). However, "[w]here a petitioner raises claims of ineffective assistance of counsel in a § 2255
"[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." Frady, 456 U.S. at 166, 102 S.Ct. 1584. Nonetheless, "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255. However, a district court need not conduct an evidentiary hearing before denying a § 2255 motion when "the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." Id.; United States v. Morrison, 98 F.3d 619, 625 (D.C.Cir.1996). "If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal. . . ." Rules Governing § 2255 Proceedings, Rule 4(b). "[A] district judge's decision not to hold an evidentiary hearing before denying a § 2255 motion is generally respected as a sound exercise of discretion when the judge denying the § 2255 motion also presided over the trial in which the petitioner claims to have been prejudiced." Morrison, 98 F.3d at 625.
In his § 2255 Motion and Amended § 2255 Motion and related pleadings, Casseday asserts seven claims of error: (1) that his guilty plea was involuntary because the Court and his counsel failed to explain to him that travel in interstate commerce was an element of the child pornography charge; (2) that the Court failed to ascertain a sufficient factual basis for his guilty plea because the record did not show that the images of child pornography had traveled in interstate commerce; (3) that his counsel disregarded his instructions to file a notice of appeal; (4) that the Court failed to inform him of the reasons for the sentencing package; (5) that his conviction is based on evidence seized in violation of the Fourth Amendment; (6) that his arrest was unconstitutional; and (7) that his counsel coerced him into answering a question affirmatively during the plea colloquy. The Government argues that Casseday's Fourth Amendment claim must be dismissed as untimely because it was asserted outside the one-year statute of limitations and does relate back to his original § 2255 Motion. The Government contends that Casseday's other claims are contradicted by the factual record and should therefore be dismissed. The Court shall address each of Casseday's claims, beginning with those that may be untimely.
The Government contends that the Fourth Amendment claim asserted in Petitioner's amended § 2255 motion is time-barred because the amended motion was filed after the one-year statute of limitations for § 2255 motions and the claim does not relate back to Petitioner's original § 2255 motion. Section 2255 provides:
28 U.S.C. § 2255(f). "In most cases, the operative date from which the limitation period is measured will be . . . the date on which the judgment of conviction becomes final." Dodd v. United States, 545 U.S. 353, 357, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005). Because Casseday did not appeal his case, his judgment of conviction became final no later than March 6, 2007, the deadline for Casseday to appeal his conviction. See Clay v. United States, 537 U.S. 522, 532, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) (holding that § 2255's one-year limitation period starts to run when the time for seeking appellate review expires).
Although Casseday's § 2255 Motion was filed within this one-year limitation period, Casseday's Amended § 2255 Motion was not filed within that period. Therefore, any claims presented in the Amended § 2255 Motion are time-barred unless they "relate back" to the claims asserted in the original motion. United States v. Hicks, 283 F.3d 380, 387 (D.C.Cir.2002). Under the relation back doctrine as expressed in Federal Rule of Civil Procedure 15(c), an amended claim relates back to the date of the original pleading when "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out in the original pleading." FED.R.CIV. P 15(c)(1)(B). "[W]hile an amendment offered for the purpose of adding to or amplifying the facts already alleged in support of a particular claim may relate back, one that attempts to introduce a new legal theory based on facts different from those underlying the timely claims may not relate back." Hicks, 283 F.3d at 388-89 (internal citations omitted). The new claims must not arise from facts that are separate "in both time and type" from the facts underlying the original pleading. Id.; see Mayle v. Felix, 545 U.S. 644, 662, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) ("An amended habeas petition . . . does not relate back . . . when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.")
Casseday raises two claims in his amended § 2255 motion: (1) that the Court violated Rule 11(b)(1)(M) and 18 U.S.C. § 3553(c) by failing to inform him of the reasons for the sentencing package; and (2) his conviction is based on evidence seized in violation of the Fourth Amendment. The Government concedes that the first of these claims
In his reply brief, Casseday suggests that he did not become aware of the removal of evidence by the Washington Times staff member until after he filed his § 2255 Motion in February 2008. See Pet'r's Reply at 3. Thus, Casseday argues that his Fourth Amendment claim is timely because it was brought within one year of "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." See 2255(f)(4). However, Casseday's assertion that evidence about the seizure of the CD is newly discovered is clearly contradicted by the record. The Statement of Facts signed by Casseday on November 20, 2006, explicitly states that a Washington Times staff member found a compact disc in Casseday's desk after the search of Casseday's office was completed and turned it over to the U.S. Secret Service for analysis. Thus, Casseday had notice by November 2006 that the CD had been seized by a staff member following the official search. Additional information relevant to Casseday's Fourth Amendment claim, such as the identity of the staff member or her alleged status as a "Special Police Officer," could have been discovered through the exercise of due diligence long before May 1, 2007, which was one year before the filing of the Amended § 2255 Motion. Therefore, Casseday's Fourth Amendment claim does not relate back to the filing of his original § 2255 Motion and is therefore untimely under § 2255(f) and must be dismissed.
Most of the additional claims that Casseday is attempting to assert through his "Rule 7" pleadings are similarly time-barred. On July 30, 2009, Casseday filed a document entitled "Rule 7 Expanding the Record" in which he argues that he was arrested without probable cause, that he was not immediately read his rights after arrest, and that he was entrapped by police. On August 26, 2009, Casseday filed an "Affidavit in Support of Rule 7" in which he alleges additional facts in support of his claims and appears to state a new claim that he felt compelled under duress by his counsel to make an involuntary statement during the plea colloquy. Because the Court must construe pro se pleadings liberally, the Court must consider whether Casseday intended his "Rule 7" pleadings to be further amendments to his § 2255 Motion. With the exception of the duress claim, each of the new claims asserted in Casseday's supplemental pleadings relates to the facts surrounding Casseday's arrest, and there is no allegation
Casseday contends that his counsel was constitutionally ineffective for failing to file a notice of appeal despite his explicit instructions to do so. The Supreme Court has held that criminal defendants have a right to "reasonably effective" legal assistance, and a defendant claiming ineffective assistance of counsel must show (1) that counsel's representation fell below an objective standard of reasonableness and (2) that counsel's deficient performance prejudiced the defendant. See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland standard has been extended to claims that a defense counsel rendered ineffective assistance by failing to file a notice of appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 476-77, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). However, the Supreme Court has explained that when counsel has consulted with the defendant about the advantages and disadvantages of filing an appeal and made a reasonable effort to discover the defendant's wishes, "[c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal." Id. at 478, 120 S.Ct. 1029. Where defense counsel has not consulted with the defendant about filing an appeal, the court must determine whether counsel's failure to consult constitutes deficient performance. Id. "[C]ounsel has a constitutionally imposed duty to consult" only "when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Id. at 480, 120 S.Ct. 1029; see also United States v. Taylor, 339 F.3d 973, 978 (D.C.Cir.2003).
Casseday has alleged in his § 2255 Motion that "he adamantly instructed his former counsel, Ms. Jahn, to file a timely notice of appeal on his behalf, soon after the conclusion of his sentencing proceedings ended[sic]." See § 2255 Mot. at 15. Casseday declares in his affidavit in support of his § 2255 Motion that he spoke to Ms. Jahn by telephone approximately 3-4 days after sentencing and requested that she file a notice of appeal challenging the conviction or sentence. See Pet'r's Aff. Supp. § 2255 Mot. ¶ 14. Casseday further declares that he sent a letter to Ms. Jahn specifically requesting that she file a notice of appeal and that at no time did she consult with him regarding the benefits or consequences of filing an appeal. See id. ¶¶ 16, 18.
Casseday's factual assertions are contradicted by the declaration of Ms. Jahn. See Gov't Opp'n, Ex. G (Decl. of Damelle C. Jahn). Ms. Jahn declares that she met with Casseday after the sentencing hearing and explained that since he received the sentence to which he agreed, there was no basis for an appeal. Id. ¶ 3. Ms. Jahn avers that she is certain that Casseday never asked her to file or suggested that she file a notice of appeal. Id. Ms. Jahn
Because there is a factual dispute in the record regarding Ms. Jahn's conduct and Casseday's instructions to her, the Court shall hold an evidentiary hearing to determine whether Ms. Jahn's performance as defense counsel was constitutionally inadequate with respect to the notice of appeal. The Court shall appoint counsel to represent Casseday for purposes of the evidentiary hearing.
Casseday claims that this Court violated Federal Rule of Criminal Procedure 11 by (1) failing to inform Casseday of the elements of the crimes charged and determine that Casseday understood the nature of the charges; (2) failing to ascertain that a factual basis existed for Casseday's plea; and (3) failing to inform Casseday of the reasons for the sentence package. Because Casseday did not raise these issues in a timely appeal, these claims are procedurally defaulted and may not be raised unless Casseday can show both cause for the procedural default and actual prejudice resulting from the errors. United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C.Cir.2003). Ineffective assistance of counsel may provide cause for a procedural default, see Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), and Casseday argues that his counsel was ineffective in failing to object to these alleged defects in his plea proceedings.
"To have a plea set aside on a section 2255 petition, the petitioner must show that the plea proceeding was tainted by a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." United States v. Weaver, 265 F.3d 1074, 1077 (D.C.Cir.2001) (quotation marks and citations omitted). The Government contends that Casseday's claims are each contradicted by the record. The Court shall review each in turn.
Casseday's first claim is that his plea of guilty to Count Two was not voluntary because the Court failed to explain, and he failed to understand, that one clement of the child pornography charge is that the images have traveled in interstate commerce. "For a plea to be voluntary under the Constitution, a defendant must receive `real notice of the true nature of the charge against him.'" United States v. Ahn, 231 F.3d 26, 33 (D.C.Cir.2000) (quoting United States v. Dewalt, 92 F.3d 1209, 1211 (D.C.Cir.1996)). In determining
The record in this case shows that Casseday should have been aware that travel in interstate commerce was an element of the child pornography charge to which he pled guilty. The Court recited the elements of Count Two twice during the plea colloquy, each time explaining that the visual depiction of sexually explicit conduct had been shipped in interstate commerce. See 11/20/06 Tr. at 32, 41-42. The Statement of Facts, which was signed by Casseday and his counsel, explicitly states that the images on the CD recovered from Casseday's office had traveled in interstate commerce by means of the Internet prior to coming into Casseday's possession. See SOF ¶ 11. Casseday stated during the plea colloquy that he agreed with the facts as stated in the Statement of Facts and that he had reviewed the plea agreement by himself and with his counsel. The proffer made by the Government during the plea hearing also included a statement that the images had traveled in interstate commerce and an explanation as to how this fact had been learned. See 11/20/06 Tr. at 32, 40-41. Casseday twice affirmed that he was voluntarily entering a plea of guilty and that he was doing so because he was guilty of the charges as described in the written Statement of Facts and orally stated in open court, thereby indicating that he was entering the plea knowingly as well.
The factors to be considered in determining whether a plea is knowing and voluntary include the defendant's level of intelligence, whether he was represented by counsel, the complexity of the charge against him, and his own statements at the plea hearing. In re Sealed Case, 283 F.3d 349, 352 (D.C.Cir.2002). The D.C. Circuit has held that a defendant knowingly entered a guilty plea when the court informed the defendant of the charge three times during the plea colloquy, the factual proffer was detailed, the charge against the defendant was straightforward, the defendant was represented by counsel, and the defendant demonstrated knowledge of the term "conspired." See In re Sealed Case, 283 F.3d at 355. Here, Casseday was twice informed of the charge against him by the Court during the plea colloquy; the factual proffer and the Statement of Facts signed by Casseday explicitly mentioned the interstate commerce element; the child pornography charge is straightforward; and Casseday was represented by counsel. Casseday has a college education and training as a paralegal and was employed as a human resources director for the Washington Times when he was arrested. See PSR ¶¶ 54-58. Given these facts and Casseday's level of education, there is no doubt that he understood that he was agreeing that the images on the CD had traveled in interstate commerce. Even if the Court failed to specifically explain that travel in interstate commerce was an element of the child pornography charge, the D.C. Circuit has made clear that Rule 11 "does not require that the district court spell out the elements of the charge in order to inform the defendant adequately." In re Sealed Case, 283 F.3d at 354. "While the district court must assure itself that the defendant understands the nature of the charge to which he is pleading so that his plea is a knowing one, it need not, in every case, specially isolate each element of the particular crime." Id. The circumstances of the plea demonstrate that Casseday received "real notice" of the charge against him. Therefore, the Court did not violate Rule 11 by
Casseday's second claim is that the Court failed to determine that there was a factual basis for the plea of guilty as to Count Two because there was no evidence proffered that the images had traveled in interstate commerce. "To establish a satisfactory factual basis, the Government must proffer `evidence from which a reasonable juror could conclude that the defendant was guilty as charged.'" Ahn, 231 F.3d at 31 (quoting In re Sealed Case, 153 F.3d 759, 771 (D.C.Cir.1998)). Contrary to Casseday's assertions in his § 2255 Motion, the record from the plea colloquy clearly shows that there was evidence that the images on the CD recovered from Casseday's office had traveled in interstate commerce. Casseday's admissions in the Statement of Facts, together with the Government's proffer that several of the images found on the CD had been confirmed as depictions of children from out of state, constitute sufficient evidence that Casseday entered the plea knowingly as to this issue and for a reasonable juror to find that Casseday was guilty of possession of child pornography. Therefore, the Court did not violate Rule 11 in failing to determine that there is a factual basis for the plea. Because Casseday cannot show actual prejudice from this alleged error, the Court shall dismiss his second Rule 11 claim.
Casseday's third claim is that the Court violated rule 11(b)(1)(M) and 18 U.S.C. § 3553(c) by failing to inform him of the reasons for his sentence. At the time of sentencing, Rule 11(b)(1) provided:
FED. R. CRIM. P. 11(b)(1) (2007).
18 U.S.C. § 3553(c) (2007).
U.S. SENTENCING GUIDELINES MANUAL § 6B1.2 (2007). The D.C. Circuit has held that a district court's failure to provide a written statement of reasons as required by § 3553(c) is plain error, even if the court has otherwise stated in open court its reasons for the departure from the guidelines. See In re Sealed Case, 527 F.3d 188, 191 (D.C.Cir.2008); id. at 198 n. 3 (dissenting opinion) (noting that the district court had stated its reasons for the departure in open court).
The record in this case shows that the Court did in fact inform Casseday during the plea colloquy about how the sentencing guidelines would be calculated for Counts Two and Three and the Court's obligation to consider those sentences in determining whether to accept the plea agreement. After the plea agreement was amended to "flip" the sentences for Counts Two and Three, the Court discussed the changes in detail during the continued plea colloquy and explained why the negotiated sentence would be advantageous to Casseday notwithstanding the fact that the 60-month sentence for Count Two would be an upward departure from the federal guidelines range. See 12/21/06 Tr. at 73-76, 84-85. During the sentencing hearing, the Court found that there were justifiable reasons for the upward departure and adopted the reasons set out by the Government in approving the Rule 11(c)(1)(C) agreement. See 2/15/07 Tr. at 5-6. The Government's reasons were set forth in the plea colloquy and also spelled out in its sentencing memorandum. See Gov't's [22] Mem. in Aid of Sentencing ¶¶ 8-10. However, the record shows that a written statement of reasons for the sentence was not provided in the order of judgment, despite the requirements of § 6B1.2 of the Sentencing Guidelines and 18 U.S.C. § 3553(c).
Thus, it appears that there was a procedural error in the sentence because the Court failed to memorialize in writing its reasons for imposing a sentence that departs from the guidelines as required by 18 U.S.C. § 3553(c). Because this claim is procedurally defaulted, Casseday must establish both cause and actual prejudice for the default. Although the Court is holding in abeyance the issue of cause pending an evidentiary hearing, the Court could proceed to the question of whether Casseday has been actually prejudiced by the Court's apparent failure to provide written reasons for the sentence in light of the fact that the reasons were stated on the record in open court and Casseday received the sentence to which he agreed under Rule 11(c)(1)(C).
Casseday claims in his "Affidavit in Support of Rule 7" filing that he was coerced by his counsel into responding affirmatively to the Court's question during the plea colloquy regarding his intent to entice a person purporting to be a child to engage in a sexual act. The relevant part of the transcript from the plea colloquy reads as follows:
11/20/06 Tr. at 38. Casseday claims in his affidavit that during the conference with his counsel in the middle of this line of questioning, he told Ms. Jahn that he could not answer this question affirmatively because there was no intent to commit any crime. See Aff. in Supp. of Rule 7 ¶ 6. Casseday claims that Ms. Jahn "insisted" that he answer affirmatively, stomping her foot at him, and that he felt compelled, under duress, to make an involuntary statement under oath. Id. ¶¶ 7-8.
Casseday later affirmed during the plea colloquy that he was entering the plea voluntarily and that he did not have any additional questions or comments for the Court, and he reaffirmed this during the continued plea colloquy one month later. Nevertheless, if the facts alleged in Casseday's affidavit are credited as true, he has raised a serious question about the voluntariness of his plea and the adequacy of his counsel's representation. Because the Government has not filed a response to the allegations in Casseday's "Affidavit in Support of Rule 7," the Court does not have a full record on which to adjudicate Casseday's duress claim. Therefore, the Court shall request that the Government file a written response to this claim and inquire about the facts surrounding Casseday's duress claim during the evidentiary hearing.
The Court finds that the Fourth Amendment claim asserted in Casseday's Amended § 2255 Motion and the claims relating to Casseday's arrest and searches that appear to be asserted in Casseday's supplemental "Rule 7" pleadings are untimely and must be dismissed. Because of conflicting testimony in the record, the Court shall hold an evidentiary hearing on Casseday's claim that his counsel was constitutionally ineffective for failing to file a notice of appeal. The Court shall also hear testimony regarding Casseday's claim that he was coerced by his counsel to answer a question affirmatively during his plea colloquy and request that the Government file a written response to this duress claim. The Court finds that Casseday's claims that the Court violated Rule 11 by failing to ensure the plea was voluntary (apart from his duress claim) and ascertain a factual basis for the plea are clearly contradicted by the record and may be dismissed as meritless without an evidentiary hearing. The Court shall hold in abeyance
See 53 D.C. Reg. 6443, 6467 (Aug. 11, 2006). The only substantive change between this language and the current § 22-3010(b) is a requirement that the defendant be at least 4 years older than the purported age of the child or minor See D.C.Code § 22-3010(b).
