United States District Court, N.D. Alabama, Jasper Division
November 14, 2014
CHRISTOPHER DAVID COBB, Defendant/Movant,
UNITED STATES OF AMERICA, Respondent
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 miscarriage of justice. 513 U.S. at 321. Accordingly, the claim of actual innocence provides a " gateway" through which otherwise procedurally barred constitutional claims may be considered. Id. at 315.
It has been noted that actual innocence " means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Actual innocence means that the person convicted did not commit the crime. Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997), cert. denied, 520 U.S. 1267, 117 S.Ct. 2438, 138 L.Ed.2d 198 (1997), quoting Johnson v. Hargett, 978 F.2d 855, 859-60 (5th Cir. 1992), citing McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Even if the court, as one reasonable factfinder, would vote to acquit, the court must step back and consider whether the petitioner's evidentiary showing most likely places a finding of guilt beyond a reasonable doubt outside of the range of potential conclusions that any reasonable juror would reach." Doe v. Menefee, 391 F.3d 147, 173 (2d Cir. 2004). In other words, a court may determine that, as factfinder, it would return a verdict of not guilty, yet still reject a petitioner's argument that he is actually innocent. See, e.g., Lambert v. Blackwell, 134 F.3d 506 (3d Cir. 1997), cert. denied, 532 U.S. 919, 121 S.Ct. 1353, 149 L.Ed.2d 284 (2001). As the Eleventh Circuit Court of Appeals noted in Melson, " [t]he demanding nature of the Schlup standard ensures that only the 'extraordinary's case will merit review of the procedurally barred claims." 548 F.3d at 1002.
In the instant case, Cobb's claims of actual innocence rest merely on his allegations that " petitioner's private conduct of viewing free images in the privacy of his own home did not have any substantial affect [sic] or any affect [sic] on interstate commerce." (Doc. 9, p. 19). From this premise, he builds his arguments that there was no federal jurisdiction to prosecute him, only local authorities can regulate child pornography, and the Adam Walsh Act and sentencing enhancements are unconstitutional. Movant has not argued that he did not receive and possess, via his computer and the internet, images that constitute child pornography. His assertion is merely an attempt to cast the facts proven in court in a different light, or to argue with the sufficiency of the evidence regarding his intent. None of movant's arguments is the type of strong, compelling argument that would create a " colorable claim of factual innocence." Regardless of questions that might be asserted as to federal jurisdiction, it is quite clear that he is not factually innocent of downloading and possessing images of child pornography.
In the instant case, it is clear that the movant procedurally defaulted claims 2, 3, 4, and 6 by failing to raise them at trial or in the direct appeal. His arguments that relate to " cause and prejudice or that he is " actually innocent" are without merit. Thus, movant's Claims 2, 3, 4, and 6 are due to be dismissed as procedurally defaulted.
III. NEW RULE OF CONSTITUTIONAL LAW
Movant seeks relief from the procedural default of his claims set forth as Claims 1 and 5 by asserting that the claims are based on a new decision of the United States Supreme Court announced in National Federation of Independent Business v. Sebelius, U.S., 132 S.Ct. 2566, 183 L.Ed.2d 450 (June 28, 2012) (hereinafter NFIB"). The court concludes that the decision in NFIB does not create " cause" to excuse the procedural default in this case.
A new development in the law may constitute cause only where the intervening development in the law could not have been anticipated by movant's counsel at the time of the trial or appeal. Moore v. Zant, 885 F.2d 1497, 1510 (11th Cir. 1989) (refusing to find " cause" where " reasonably competent counsel, searching the legal horizon [at the time], could have expected to argue in favor of the [new law]"). " Cause" to excuse the procedural default exists only where the claim is " so novel that its legal basis is not reasonably available to counsel." Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989); see also Agan v. Vaughn, 119 F.3d 1538 (11th Cir. 1997). Movant asserts that he could not have raised the issue at trial or on appeal because the contours of the Commerce Clause had not yet been defined by NFIB, which was rendered a month after his conviction was affirmed on direct appeal.
It should first be noted that NFIB was issued during the 90-day period during which movant could have filed a petition for writ of certiorari with the United States Supreme Court. Accordingly, NFIB is not a " new" constitutional rule that would create an exception to the procedural bar. But this is not the only reason that movant's reliance on NFIB is wholly misplaced. Even if NFIB could be considered " new, " it is not the type of rule that could be applied retroactively in a federal habeas review, because such rules must be " substantive" or " a watershed rule of criminal procedure implicating the fundamental fairness of the criminal proceeding." Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S.Ct. 2519, 2522, 159 L.Ed.2d 442 (2004). " Substantive" rules include " decisions that narrow the scope of a criminal statute by interpreting its terms" and " constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish." 542 U.S. at 351-52, citing Bousley v. United States, 523 U.S. 614, 620-621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), Saffle v. Parks, 494 U.S. 484, 494-495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); and Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). NFIB involved the application of the Commerce Clause to the individual mandate contained within the Patient Protection and Affordable Care Act, which compelled the uninsured to engage in commerce by purchasing insurance. Clearly, NFIB, which addresses the Affordable Care Act, does not limit conduct proscribed under the criminal statute governing child pornography, and does not involve a " watershed rule of criminal procedure."
Movant's 27-page motion (doc. 1), his 57-page rebuttal (doc. 9), and his 41-page additional brief (doc. 12), seek relief primarily on the basis that the Anew rule of constitutional law" announced in NFIB so limits Congress's powers under the Commerce Clause that it removes from federal jurisdiction the crimes with which he was charged. The Eleventh Circuit Court of Appeals has recently rejected a criminal defendant's similar argument in United States v. Parton, 749 F.3d 1329 (2014). The defendant in Parton sought to have his conviction for production of child pornography overturned on the basis that the " interstate commerce nexus was insufficient" because the only basis was that the device used to make the pornographic images was a camera that had traveled in interstate commerce. 749 F.3d at 1330. The court held that NFIB did not overrule prior precedent regarding the application of the Commerce Clause in crimes involving child pornography:
In Sebelius, Chief Justice Roberts was of the opinion that the Affordable Care Act could not be sustained under Congress's power pursuant to the Commerce Clause. However, his rationale has no application to this case or to the situation addressed in Smith II or Maxwell II . The Chief Justice reasoned that although Congress has the power to regulate existing commercial activity, the Commerce Clause cannot be interpreted to grant Congress the power to Acompel[ ] individuals to become active in commerce by purchasing a product." U.S. at, 132 S.Ct. at 2587; see also id. at, 132 S.Ct. at 2644 (Scalia, J., Kennedy, J., Thomas, J., and Alito, J., dissenting) (ABut that failure [i.e., the failure to maintain health insurance]--that abstention from commerce--is not 'Commerce.' To be sure, purchasing insurance is 'Commerce'; but one does not regulate commerce that does not exist by compelling its existence."). Unlike the inactivity of the uninsured individuals addressed by the Chief Justice and the four dissenters in Sebelius, Parton produced child pornography; it was this activity which was criminalized by § 2251(a).
749 F.3d at 1331. Other circuit courts have similarly determined that NFIB Adid nothing" to restrict Congress's power to control the intrastate manufacture and possession of child pornography.
See, e.g., United States v. Rose, 714 F.3d 362 (6th Cir. 2013); United States v. Boyle, 700 F.3d 1138 (8th Cir. 2012). Moreover, it has been debated whether the references in NFIB to the Commerce Clause were merely dicta, given the final holding of the case was under the Taxation Clause, not the Commerce Clause.
See United States v. Robbins, 729 F.3d 131, 135 (2d Cir. 2013), and cases cited therein. Finally, although movant asserts that NFIB overruled Raich v. Gonzales, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), the case merely distinguishes Raich, which held that Congress has the power to enact comprehensive legislation to regulate the interstate market for marijuana, even when the specific transactions are wholly intrastate, because marijuana is a " fungible commodity." The same can be said of child pornography.
Movant in the instant case seeks to have his convictions vacated on the grounds that the district court lacked jurisdiction over his claims because the reach of the Commerce Clause did not extend to his activities, and because his use of the computer as a device for accessing the pornography was not a sufficient " jurisdictional hook."  Because the holding in NFIB does not extend nearly so far as movant urges, and in light of the Eleventh Circuit Court of Appeals' holding in Parton, the court finds that these arguments are completely devoid of merit. The law has not changed with respect to the federal or interstate nexus for child-pornography offenses. Not only did movant's compute move in interstate commerce, the internet itself, through which he downloaded the images, is a clear " channel of commerce" that is subject to congressional regulation. Accordingly, Claims 1 and 5 also are due to be denied and dismissed.
Accordingly, for the reasons stated above, the magistrate judge hereby RECOMMENDS that the motion to vacate the sentence under 28 U.S.C. § 2255 be DENIED.
V. NOTICE OF RIGHT TO OBJECT
Any party who objects to this report and recommendation must, within fourteen (14) days of the date on which it is entered, file specific written objections with the clerk of this court. Any objections to the failure of the magistrate judge to address any contention raised in the petition also must be included. Failure to do so will bar any later challenge or review of the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) ( en banc) . In order to challenge the findings of the magistrate judge, a party must file with the clerk of the court written objections which shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. A copy of the objections must be served upon all other parties to the action.
Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge shall make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge. The district judge, however, need conduct a hearing only in his discretion or if required by law, and may consider the record developed before the magistrate judge, making his own determination on the basis of that record. The district judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Objections not meeting the specificity requirement set out above will not be considered by a district judge.
A party may not appeal a magistrate judge's recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a district judge.
The Clerk is DIRECTED to mail a copy of this Report and Recommendation to the petitioner at his most recent address.