United States District Court, N.D. Alabama, Jasper Division
For USA, Plaintiff: Joyce White Vance, U.S. Attorney, Birmingham, AL, LEAD ATTORNEYS, U.S. ATTORNEY'S OFFICE, Birmingham, AL; U.S. Probation, LEAD ATTORNEY, UNITED STATES PROBATION OFFICE, Birmingham, AL; USM, LEAD ATTORNEY, UNITED STATES MARSHAL, Birmingham, AL.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
T. MICHAEL PUTNAM, UNITED STATES MAGISTRATE JUDGE.
On July 16, 2013,  the movant, Christopher David Cobb, filed a pro se motion pursuant to 28 U.S.C. § 2255, challenging his conviction in the United States District Court for the Northern District of Alabama on January 25, 2011, on one count of receiving child pornography and one count of possession of child pornography. The movant is incarcerated at the Federal Correctional Center in Yazoo City, Mississippi. The § 2255 motion was referred to the undersigned magistrate judge for a preliminary review and recommendation.
I. PROCEDURAL HISTORY
On January 25, 2011, the movant was found guilty after a jury trial of one charge of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(5)(B). On May 12, 2011, movant was sentenced to 210 months in prison, to be followed by supervised release for a term of life. Movant appealed his conviction and sentence, asserting: (1) that the trial court erred by admitting a government exhibit, and (2) that the sentence was unreasonable and more severe than necessary to satisfy the requirements of 18 U.S.C. § 3553. The Eleventh Circuit Court of Appeals affirmed the convictions and sentence on May 24, 2012. Movant did not seek review in the United States Supreme Court.
On July 16, 2013, movant filed the timely instant motion to vacate his conviction pursuant to 28 U.S.C. § 2255, setting forth the following claims: (1) that the court lacked jurisdiction over his conviction because the Commerce Clause does not extend to the accessing of " free" child pornography because it is not " commerce";  (2) that the trial court incorrectly applied the elements of mens rea because petitioner did not have knowledge of the contents of the files before he downloaded them; (3) that child pornography can be regulated only by local government and not by the federal government; (4) that the Adam Walsh Act of 2006 is unconstitutional because it is based completely on " prophesied" future activity; (5) that his use of a computer cannot provide a federal " jurisdictional hook" for the regulation of pornography; and (6) that the sentencing Sentencing Guidelines § 2G2.2 are unconstitutional and were thus improperly applied to him.
Pursuant to the court's order to show cause, the Government filed an answer on September 5, 2013, supported by exhibits. On September 5, movant sought leave to file a response to the Government's answer, which was granted. On November 4, 2013, movant filed a rebuttal. On September 25, 2014, the parties were notified that the answer would be considered for summary disposition, and the movant was notified of the provisions and consequences of this procedure under Rule 8 of the Rules Governing § 2254 Cases. On October 16, 2014, the movant filed an additional brief. (Doc. 12).
II. PROCEDURAL DEFAULT
The Government asserts that movant's claims set forth herein as Claims 2, 3, 4, and 6 are procedurally defaulted because the movant could have raised them at trial or on direct appeal but did not. Because they are being raised for the first time in the § 2255 motion, the claims cannot be reviewed on the merits absent a showing of " cause and prejudice" by the movant, explaining and excusing his failure to raise the claim at trial and on direct appeal. In United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), the Supreme Court made clear that federal claims implicating the validity of a conviction or sentence must be raised at the earliest appropriate time, and that the claims that could be argued on direct appeal cannot be asserted in a collateral § 2255 motion unless there is " cause and prejudice" excusing the appellate default. A[A] collateral challenge may not do service for an appeal." Id. at 165. Adopting the " cause and prejudice" standard for § 2255 motions, the Supreme Court explained:
Under this standard, to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) " cause" excusing his double procedural default, and (2) " actual prejudice" resulting from the errors of which he complains.
Id. at 167-168. The " double procedural default" mentioned by the court is a clear reference not only to the failure to make a contemporaneous trial objection, but also to the failure to assert the issue on direct appeal. The Eleventh Circuit has similarly applied the " cause and prejudice" standard for analysis of procedural defaults in the § 2255 context. In Parks v. United States, 832 F.2d 1244 (11th Cir. 1987), the Eleventh Circuit Court of Appeals held that alleged errors at trial or in sentencing could not be raised for the first time in a § 2255 habeas action without a showing of " cause and prejudice" excusing the failure to assert the claims on direct appeal.
Movant has failed to make the showing of both " cause" and " prejudice" to excuse his procedural default of these claims. He has offered no explanation for why these claims could not have been raised during trial and on direct appeal. Further, because the claims themselves are meritless, he has suffered no prejudice. Thus claims 2, 3, 4, and 6 in the motion are due to be dismissed.
Movant also seeks to avoid the procedural default of these claims by asserting that he is actually innocent of the crimes, and that to allow the convictions to stand would represent a fundamental miscarriage of justice. An " actual innocence" exception has been well established in the context of a procedural default since the Supreme Court held that a claim of actual innocence may " avoid a procedural bar" to consideration of the merits of a habeas petitioner's claims. Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In Schlup, a habeas petitioner sought review of claims of ineffective assistance of counsel and other constitutional errors at trial in a successive habeas petition. Those claims were procedurally barred, but petitioner sought to escape that bar by demonstrating that he was actually innocent, and thus the court's refusal to hear his claims would result in a ...