United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
DAVID BRAMLETTE, District Judge.
This cause is before the Court on the petitioner Joseph McNealy's Motion to Vacate Under 28 U.S.C. § 2255 (docket entry 126), motion to file oversized brief (docket entry 125), motion for discovery (docket entry 136), motion requesting copies (docket entry 138), and motion for hearing (docket entry 152). Having carefully considered the motions and the government's responses, and being fully advised in the premises, the Court finds as follows:
On August 28, 2008, the defendant, Joseph McNealy, was named in a four-count superseding indictment charging him with possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2). McNealy was initially represented by Attorney S. Dennis Joiner, whom the Court allowed to withdraw after McNealy retained Attorney Kevin D. Camp and Attorney Dean M. Boland. Attorneys for the defendant filed pretrial motions to dismiss the indictment based on statutory overbreadth and fair trial violations, as well as a motion to suppress digital image, computer and other seized evidence. The jury found the defendant guilty on all counts on March 26, 2009. Following the trial, the United States Probation Office prepared a Presentence Investigation Report ("PSR"). Prior to the June 4, 2009 sentencing hearing, attorneys for the defendant lodged a number of objections to the PSR. Defendant's sentencing hearing was continued until July 2, 2009. Following a lengthy sentencing hearing, the defendant was sentenced to 70 months of imprisonment, to be followed by lifetime supervised release. The defendant, feeling aggrieved by the district court conviction, appealed to the United States Court of Appeals for the Fifth Circuit, claiming a number of errors before and during his trial. The Fifth Circuit affirmed the conviction in a published opinion on November 5, 2010, and issued its Mandate on November 30, 2010. See United States v. McNealy, 625 F.3d 858 (5th Cir. 2010). The defendant chose not to exercise his right to file a petition to the Supreme Court for Certiorari within the 90 days allowed. Therefore, the One Year Statute of Limitations began to run on March 1, 2011.
The Government concedes that the defendant's Section 2255 motion is timely before the Court under the Fifth Circuit's ruling in United States v. Thomas, 203 F.3d 350, 353 (5th Cir. 2000). However, the Government contends that the defendant's motion should be denied to the extent that it raises claims previously raised on Direct Appeal, with the exception of the claims of ineffective assistance of counsel.
McNealy raises the following claims which were previously raised on direct appeal:
(1) Whether McNealy's Speedy Trial Act Rights were violated by the delay caused by multiple continuance orders omitting language required by the Speedy Trial Act to exclude the delay time from his Speedy Trial Act calculation;
(2) Whether the District Court erred by admitting photographic or image evidence that was not properly authenticated under Fed.R. Evid. 901 and 1001;
(3) Whether the Court erred by denying McNealy's motion to dismiss for Fair Trial Violation;
(4) Whether the Court erred by denying McNealy's motion to prohibit the Government from using copies of the original evidence it intentionally destroyed;
(5) Whether the Government's evidence was sufficient to support a conviction when it failed to present any evidence as to McNealy's knowledge that the images he allegedly possessed depicted actual minors;
(6) Whether the Court erred by denying McNealy's Fed.Crim.R. 29 Motion for a Directed Verdict.
"It is settled in this Circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 Motions." United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986); see also United States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994). The claims made by McNealy in his motion are simply further amplification of the same arguments made on appeal and decided adversely to the defendant.
"Once the defendant's chance to appeal has been waived or exhausted, " the courts "are entitled to presume that [the defendant] stands fairly and finally convicted." "When Congress enacted 28 U.S.C. § 2255 in 1948, it simplified the procedure for making a collateral attack on a final judgment entered in a federal criminal case, but it did not purport to modify the basic distinction between direct review and collateral review. It has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." United States v. Addonizio, 442 U.S. 178, 184 (1979).
As the Supreme Court has emphasized, a "collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165 (1982). After conviction and exhaustion or waiver of any right to appeal, "we are entitled to presume that [the defendant] stands fairly and finally convicted." Id. at 164. A defendant can challenge his conviction after it is presumed final only on issues of constitutional or jurisdictional magnitude, Hill v. United States, 368 U.S. 424, 428 (1962), and may not raise an issue for the first time on collateral review without showing both "cause" for his procedural default, and "actual prejudice" resulting from the error. Frady, 456 U.S. at 168. This cause and actual prejudice standard presents a "significantly higher hurdle than would exist on direct appeal." Id. at 166. "Our trial and appellate procedures are not so unreliable that we may not afford their completed operation any binding effect beyond the next in a series ...