United States District Court, D. Minnesota
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge
matter is before the Court on Defendant's Second Amended
Motion to Vacate. (Docket No. 161.) For the following
reasons, the Motion is denied.
30, 2015, Defendant pled guilty to one count of Production of
Child Pornography (Count 2), one count of Receipt of Child
Pornography (Count 5), and one count of Possession of Child
Pornography (Count 9). On December 15, 2015, United States
District Court Judge Richard H. Kyle sentenced Defendant to
300 months' imprisonment and 15 years' supervised
release. (See Docket No. 87.)
February 22, 2019, Defendant filed the instant Motion to
vacate his sentence under 28 U.S.C. § 2255. Defendant
alleges: (1) that the Court lacked subject-matter
jurisdiction as to Count 2; (2) that his trial counsel was
ineffective; and (3) that he was subjected to double jeopardy
because he was convicted of both receipt and possession of
federal prisoner may move the court which imposed his
sentence to vacate, set aside, or correct the sentence if the
court lacked jurisdiction to impose the sentence, or if the
sentence was imposed in violation of the Constitution or
federal law, in excess of the maximum authorized by law, or
otherwise subject to collateral attack. 28 U.S.C. §
2255(a). But a motion under § 2255 is available only in
limited circumstances. “Relief under 28 U.S.C. §
2255 is reserved for transgressions of constitutional rights
and for a narrow range of injuries that could not have been
raised on direct appeal and, if uncorrected, would result in
a complete miscarriage of justice.” United States
v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
“Issues raised and decided on direct appeal cannot
ordinarily be relitigated in a collateral proceeding based on
28 U.S.C. § 2255.” United States v.
Wiley, 245 F.3d 750, 752 (8th Cir. 2001).
argues that there was no federal jurisdiction to prosecute
Count 2 on the White Earth Reservation until June 1, 2013.
(Docket No. 161 at 2.) Defendant contends that because his
actions related to Count 2 occurred in 2012, the Government
lacked jurisdiction to charge him with that crime. Defendant
also claims that the Court lacked subject-matter jurisdiction
over Count 2 because it is not a crime of “general
applicability.” (Id. at 1.)
Court has previously rejected Defendant's argument.
(See Docket No. 39 at 6-9.) Defendant's
jurisdictional argument refers to a request made by the White
Earth Nation of Ojibwe in 2012 for the United States to
accept concurrent jurisdiction to prosecute violations of 18
U.S.C. §§ 1152 and 1153 within Indian country.
(Def.'s Ex. 4 (Docket No. 167) at 1.) That request was
granted with an effective date of June 1, 2013.
(Id.) In granting the request, the Deputy Attorney
General stated that “the Federal government will assume
concurrent jurisdiction to prosecute violations of Sections
1152 and 1153, and will also retain its existing jurisdiction
to prosecute crimes of general applicability . . . .”
(Id. at 2.) However, because Defendant was not
charged with violating §§ 1152 or 1153 the grant of
concurrent jurisdiction does not apply to him. Furthermore,
the Eighth Circuit has repeatedly rejected similar arguments
claiming that the general criminal laws of the United States
“do not apply to Indians committing crimes against
Indians in Indian country” based on § 1152.
United States v. McGrady, 508 F.2d 13, 15-16 (8th
Cir. 1974). Accordingly, Defendant's argument regarding
jurisdiction based on §§ 1152 and 1553 is without
argument that Production of Child Pornography is not a crime
of general applicability and therefore not prosecutable is
also flawed. “[F]ederal courts may enforce general
federal criminal laws against all persons, including Indians
within Indian country.” United States v.
Wadena, 152 F.3d 831, 841 (8th Cir. 1998) (emphasis
omitted). Production of Child Pornography under 18 U.S.C.
§§ 2251(a) is a crime over which there is federal
jurisdiction regardless of where it occurred. Accordingly,
the Court had subject-matter jurisdiction over Count
Ineffective Assistance of Counsel
entitled to relief based on ineffective assistance of
counsel, Defendant must show that (1) his counsel's
performance fell below an objective standard of
reasonableness and (2) there is a “reasonable
probability that, but for [his] counsel's . . . errors,
the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S.
668, 688, 694 (1984). The Court must evaluate a lawyer's
performance without the benefit of hindsight, and there is a
“strong presumption that counsel's conduct falls
within the wide range of reasonable professional
assistance.” Id. at 689. A criminal defendant
is entitled to competent representation, but the Constitution
“does not insure that defense counsel will recognize
and raise every conceivable” argument. Anderson v.
United States, 393 F.3d 749, 754 (8th Cir. 2005)
alleges his counsel was ineffective on two different bases.
“Ground Two” of Defendant's second amended
Motion is titled: “counsel rendered ineffective
throughout District Court proceedings.” However,
Defendant describes several alleged constitutional violations
regarding his arrest and presentment. To the extent Defendant
contends that these violations serve as a basis to vacate his
sentence, that claim is foreclosed because Defendant entered
a voluntary guilty plea after the alleged violations took
place. United States v. Vaughan, 13 F.3d 1186, 1187
(8th Cir. 1994) (“A defendant's knowing and