Opinion
CASE NO. 4:17-CR-58-CDL-MSH
01-03-2020
ERIC KEITH MENEFEE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
28 U.S.C. § 2255 REPORT AND RECOMMENDATION
Pending before the Court is Petitioner's motion to vacate his sentence under 28 U.S.C. § 2255 (ECF No. 32). For the reasons explained below, it is recommended that Petitioner's motion be denied.
BACKGROUND
Petitioner was arrested as part of an undercover operation conducted by the Georgia Bureau of Investigation ("GBI") and the Georgia Internet Crimes Against Children Task Force in Columbus, Georgia on November 13, 2017. Revised Final Pre-Sentence Report ("PSR") ¶ 6, ECF No. 25; Plea Agreement ¶ 7, ECF No. 20. On November 16, 2017, a grand jury issued an indictment for Petitioner for the attempted online enticement of a minor in violation of O.C.G.A. § 16-6-5 and 18 U.S.C. § 2422(b). Indictment 1, ECF No. 1. Specifically, he was charged with having:
[used] a facility of interstate and foreign commerce, that is the Internet and a cellular telephone, to knowingly attempt to persuade, induce, entice, and coerce M., an individual Defendant believed to be a fourteen (14) year old female, to engage in prostitution and any sexual activity for which any person
could be charged with a criminal offense, to wit, a criminal offense under Georgia law, to wit, Attempted Enticement of a Child for Indecent Purposes under Georgia Code Section 16-6-5; all in violation of Title 18, United States Code, Section 2422(b).Id. (emphasis added). On February 15, 2018, Petitioner pled guilty to a superseding count of the use of facilities in interstate and foreign commerce to transmit information about a minor in violation of 18 U.S.C. § 2425. Superseding Information 1, ECF No. 18; Change of Plea, ECF No. 19; Plea Agreement ¶ 3(A); Plea Tr. 14:4-25, 31:24-32:4, ECF No. 29; Judgment 1, ECF No. 27. The superseding information contended that Defendant:
herein, knowingly used facilities in interstate and foreign commerce, to wit: a cellular telephone and the Internet, to initiate the transmission of the name, address, telephone number, and electronic mail address of another individual, knowing that said individual had not attained the age of sixteen (16) years, with the intent to entice, encourage, offer, and solicit that individual to engage in a sexual activity for which any person could be charged with a criminal offense, to wit: Prostitution, in violation of the laws of the State of Georgia, and the Attempted Online Enticement of a Minor, in violation of Title 18, United States Code, Section 2422(b); all in violation of Title 18, United States Code, Section 2425.Superseding Information 1.
As part of the plea agreement, Petitioner agreed that Respondent could prove at trial that a GBI undercover agent ("UC") posed as a child in an advertisement on the website "Backpage.com," which is commonly used for soliciting prostitution. Plea Agreement ¶ 7. The ad was entitled, "Petite little BAD girl! Ready to please," and had a text section which stated, "Ready for a night you'll never forget? Call me (706) 622-****." Id. The ad also contained one picture of the UC posing in a hotel room, and listed her age as "69," which, in the training and experience of law enforcement officers, is code for a child being advertised for prostitution. Id. Petitioner responded to the advertisement, indicating through texts that he wanted to have sex with the UC in exchange for money. Id. He also stated that he wanted to pick the UC up and take her to another location because she was so young. Id. During a phone conversation, the UC told Petitioner she was 14 years old. Id. The UC provided an address for the meeting, Petitioner traveled to that address, and the GBI arrested him upon arrival. Plea Agreement ¶ 7.
Petitioner was sentenced to 46 months imprisonment, 10 years supervised release, and a $100 assessment. Judgment 2-3, 6. Petitioner was also required to provide a DNA sample and comply with the requirements of the Sex Offender Registration and Notification Act under 34 U.S.C. § 20901, et seq. Id. at 3. Judgment was entered against him on June 12, 2018. Id. at 1. On April 19, 2019, Petitioner filed this motion to vacate his sentence under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. Mot. to Vacate 6, 19, ECF No. 32; Pet'r's Mem. in Supp. of Mot. to Vacate 4-14, ECF No. 33. Respondent responded (ECF No. 35) on June 18, 2019. The Court conducted an evidentiary hearing on October 25, 2019, and heard testimony from trial counsel, Petitioner, and Petitioner's mother, brother, and sister. Text-Only Min. Entry, ECF No. 41. Following the hearing, both Petitioner and Respondent filed supplemental briefs (ECF Nos. 43, 44). Petitioner's motion is ripe for review.
DISCUSSION
I. Ineffective Assistance of Counsel Standard
To prevail on a claim of ineffective assistance of counsel, a petitioner must establish, by a preponderance of the evidence, that his attorney's performance was deficient and that he was prejudiced by the inadequate performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000). However, "[a] court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689 (1984)).
To establish deficient performance, a petitioner must prove their counsel's performance was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). There is a strong presumption that the challenged action constituted sound trial strategy. Chateloin v. Singletary, 89 F.3d 749, 752 (11th Cir. 1996). To show that counsel's performance was unreasonable, a petitioner must establish that no competent counsel would have taken the action in question. Van Poyck v. Fla. Dep't of Corr., 290 F.3d 1318, 1322 (11th Cir. 2002) (per curiam).
To satisfy the prejudice prong, a petitioner must show there is a reasonable probability that, but for counsel's inadequate representation, "the result of the proceedings would have been different." Meeks v. Moore, 216 F.3d 951, 960 (11th Cir. 2000). If a petitioner fails to establish that he was prejudiced by the alleged ineffective assistance, a court need not address the performance prong of the Strickland test. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000). A petitioner's burden when bringing an ineffective assistance claim "is not insurmountable" but "is a heavy one." Chandler, 218 F.3d at 1314.
II. Motion to Vacate
Petitioner raises a single claim of ineffective assistance of counsel, contending trial counsel failed to advise him he could proceed to trial on the original indictment with the defense that he did not believe the UC to be underage. Pet'r's Mem. in Supp. of Mot. to Vacate 7. At the motion hearing, Petitioner testified that trial counsel never told him he could raise this defense despite Petitioner's desire to do so. Hr'g Tr. 67:11-21, ECF No. 45. Petitioner contends that by failing to advise him of a viable defense, trial counsel "performed deficiently." Pet'r's Mem. in Supp. of Mot. to Vacate 7-8. He testified that if he had known he had a viable defense to the charge in the original indictment, he would not have agreed to plead guilty to the lesser offense in the superseding information. Hr'g Tr. 68:6-69:12, 76:6-9. He argues the prejudice prong of Strickland is satisfied because going to trial would have been "objectively rational" under a test adopted by the 10th Circuit in Heard v. Addison, 728 F.3d 1170 (10th Cir. 2013). Pet'r's Mem. in Supp. of Mot. to Vacate 12-13. In support of this contention, he cites another case in this district—involving the same charge, UC, and advertisement—where a defendant raised the belief defense and was acquitted. Id. at 13. The Court need not analyze the prejudice prong, however, because it concludes Petitioner fails to show trial counsel performed deficiently.
The Court will refer to this defense as the "belief defense."
In Heard, the petitioner claimed he would have rejected a plea offer to lewd molestation had he known that he had a defense that his conduct was not criminal under the statute. Heard v. Addison, 728 F.3d 1170, 1179 (10th Cir. 2013). In analyzing the prejudice prong of Strickland, the 10th Circuit concluded that a court must "first ask whether ether going to trial would have been objectively rational under the circumstances." Id. at 1184 (internal quotation marks omitted).
The Court concludes trial counsel was not deficient, and thus, does not reach the prejudice prong. The Court, however, notes that Petitioner—other than showing the same undercover agent and advertisement was involved—does not outline factual similarities between Petitioner's case and the other district court case or otherwise explain its relevance to Petitioner's decision to plead guilty.
Trial counsel, who has over twenty years' experience as a prosecutor and defense attorney, testified that he always discusses possible defenses with clients in felony cases and that he specifically remembered discussing the belief defense with Petitioner. Hr'g Tr. 5:17-22, 7:24-8:2, 19:4-24. He denied Petitioner's allegation that he failed to discuss the defense with him. Id. at 20:3-14. He further testified that despite being advised of the potential defense, Petitioner chose plead guilty to the superseding information. Id. at 28:2-15. Trial counsel admitted that Petitioner had some "apprehension" about accepting a guilty plea and asked if it would be okay to seek a second opinion from another attorney. Id. at 23:13-22. Trial counsel indicated he had no objection, and that he sent the other attorney a copy of the discovery and even spoke with him about the case. Id. at 23:17-24:2. Trial counsel further testified that following Petitioner's consultation with the other attorney, he entered a not guilty plea on Petitioner's behalf. Id. at 40:8-13. However, he said that "as things got rolling or whatever, [Petitioner] changed his mind and decided to enter a plea." Hr'g Tr. 24:20-22.
While Petitioner's testimony conflicts with trial counsel, the Court, as fact finder, is entitled to make credibility determinations. Hamm v. United States, No. CV 118-192, 2019 WL 2913328, at * 10 (S.D. Ga. June 14, 2019) (collecting cases). Here, the Court credits trial counsel's testimony over Petitioner's. The Court has considered Petitioner's arguments as to why trial counsel's testimony was not credible, and rejects them. First, Petitioner contends trial counsel could not be expected to remember his conversations with Petitioner due to his large case load. Pet'r's Suppl. Br. 2, ECF No. 43. He points out that trial counsel had no contemporaneous notes that he reviewed or created on the belief defense. Id. It was clear from trial counsel's testimony, however, that he had a vivid memory of his conversations with Petitioner about the issue, including his warning that while the belief defense could be raised, it would ultimately be up to a jury to "believe[ ] that he believed that she wasn't . . . underage." Hr'g Tr. 22:20-23:3. Second, Petitioner points to his relatives' testimony that trial counsel never mentioned a possible belief defense to them. Pet'r's Suppl. Br. 2. However, the family members admitted they were not present for all of Petitioner's meetings with trial counsel. Hr'g Tr. 55:3-20, 58:1-13, 61:18-20.
On the other hand, the Court has reason to reject Petitioner's testimony. During the plea colloquy, Petitioner stated he was 49 years of age and had attended school until the 11th grade. Plea Tr. 6:19-23. He also agreed he was pleading guilty because he was, in fact, guilty, and had committed the acts alleged in the superseding information. Id. at 32:16-21. The superseding information alleged that Petitioner knew the individual he solicited was under 16 years of age, contradicting his claim that he knew the UC was an adult. Superseding Information 1. Moreover, he answered affirmatively when asked if he was "completely satisfied with the advice and representation" provided by trial counsel. Plea Tr. 20:13-15. Further, Petitioner acknowledged in the signed plea agreement that trial counsel had "explained to [him] [trial counsel's] understanding of the Government's evidence." Plea Agreement ¶ 1. He also stipulated that the UC told him she was 14 years old and that he advised her he wanted to "take her to another location, because she was so young." Id. ¶ 7. Finally, Petitioner's hearing testimony—that he wanted to go to trial on the belief defense, told trial counsel that, expressed his dissatisfaction with counsel immediately before the change of plea, but then nevertheless told the Court he was satisfied with trial counsel's representation—is not credible. Hr'g Tr. 67:19-21, 73:16-24, 75:4-20.
The fact that the undercover agent was an adult would not have barred Petitioner's conviction for attempted online solicitation of a minor. "[A] defendant's mere belief that a minor was involved is sufficient to sustain an attempt conviction under 18 U.S.C. § 2422(b), even if the defendant's offense conduct did not involve an actual minor." United States v. Slaughter, 708 F.3d 1208, 1215 (11th Cir. 2013) (internal quotations omitted) (upholding conviction where defendant contacted a minor online who "was actually [an] FBI Special Agent . . . pretending to be an underage girl as part of an undercover task force to prevent and prosecute sex crimes against children").
Further undermining Petitioner's credibility is his testimony—upon direct examination—that he discussed the belief defense with the second attorney and then appeared in Court where trial counsel announced ready for trial. Hr'g Tr. 67:22-68:3, ECF No. 45. This testimony implies he knew about the viability of a belief defense well before he pled guilty.
The Court also rejects Petitioner's argument that—assuming trial counsel discussed the belief defense—it was only in connection with the state charges for which Petitioner was originally arrested and not the federal charges at issue here. Pet'r's Suppl. Br. 2. First, the Court disagrees that trial counsel testified to only having discussed the defense in connection with the state charges. During cross-examination, Petitioner's attorney asked trial counsel when he discussed the belief defense with Petitioner, and trial counsel responded he "remembered telling him [ ] when I first - even before it became a federal case. Even when we discussed it at recorder's court." Hr'g Tr. 38:14-16. Then, when asked whether his discussion with Petitioner occurred when it was still a state case, trial counsel responded in the affirmative. Id. at 39:6-10. Trial counsel, however, did not testify that was his only conversation with Petitioner regarding the defense. In fact, he testified that he discussed the defense with Petitioner in connection with the federal charges and told him—if it was what Petitioner wanted— he would inform the U.S. Attorney's Office he was ready for trial. Id. at 20:15-23:12. He also specifically testified that he reviewed the original indictment with Petitioner and explained what the Government would have to prove. Id. at 18:25-19:3. One element the Government would have had to prove is that Petitioner used the internet and a cellular telephone "to knowingly attempt to persuade, induce, entice, and coerce M., an individual Defendant believed to be a fourteen (14) year old female, to engage in prostitution and any sexual activity." Indictment 1 (emphasis added). It is clear from the totality of trial counsel's testimony that he had an ongoing dialogue with Petitioner regarding the belief defense and its likelihood of success at trial. Second, even if trial counsel discussed the defense in connection with the state charges, the relevant state statute also requires that the person contacted be a child or that defendant believed the person to be a child. O.C.G.A. § 16-12-100.2(d)(1), (e)(1).
This conclusion is buttressed by the fact that the second attorney Petitioner consulted was a federal defense attorney. Hr'g Tr. 23:21-22. Petitioner testified he spoke with this attorney about the belief defense, and, afterward, appeared before the Court where trial counsel announced Petitioner was ready for trial. Id. at 67:22-68:3. This timeline shows that discussions about the belief defense carried on into the federal phase of Petitioner's prosecution.
The Court, therefore, concludes Petitioner has failed to meet his burden of establishing deficient performance, and recommends denial of his motion to vacate.
III. Certificate of Appealability
Rule 11(a) of Rules Governing Section 2255 Cases in the United States District Courts provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability may issue only if the applicant makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). If a court denies a collateral motion on the merits, this standard requires a petitioner to demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a court denies a collateral motion on procedural grounds, this standard requires a petitioner to demonstrate that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 478. Petitioner cannot meet either of these standards and, therefore, a certificate of appealability in this case should be denied.
CONCLUSION
For the reasons explained above, it is recommended that Petitioner's motion to vacate sentence under 28 U.S.C. § 2255 (ECF No. 32) be denied. Additionally, a certificate of appealability should be denied. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 3rd day of January, 2020.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE