United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION AND ORDER
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
matter comes before the court on the motion of Gregory
McCauley to vacate, set aside, or correct his sentence under
28 U.S.C. §2255. The government has responded to the
motion, and the matter is ripe for resolution.
and Procedural Posture
28, 2009, Petitioner McCauley was indicted for the
distribution of child pornography (Count I) and the
possession of child pornography (Count II). ECF doc. 1. On
July 29, 2009, a superseding indictment charged McCauley with
the sexual exploitation of a child (Counts I, II, III, IV, V,
and VI), the distribution of child pornography (Count VII),
and the possession of child pornography (Count VIII). ECF
doc. 3. Pursuant to a guilty plea, McCauley was sentenced to
serve a term of twenty-five (25) years (300 months) on Count
I and 240 months on Count VII, to run concurrently with each
other. ECF doc. 33. In addition, McCauley was sentenced to
five (5) years of post-release supervision on each count to
run concurrently, and to pay a $200 special assessment and
$8, 071 in restitution. Id. Further, Counts I and II
of the original indictment and Counts II, III, IV, V, VI, and
VIII of the superseding indictment were dismissed.
Id. On June 29, 2015, McCauley filed a motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C.A. §2255. ECF doc. 36.
of §2255 Review
are four grounds upon which a federal prisoner may seek to
vacate, set aside, or correct his sentence: (1) that the
sentence was imposed in violation of the Constitution or laws
of the United States; (2) that the court was without
jurisdiction to impose the sentence; (3) that the sentence
exceeds the statutory maximum sentence; or (4) that the
sentence is “otherwise subject to collateral
attack.” 28 U.S.C. §2255; see United States v.
Cates, 952 F.2d 149, 151 (5thCir.1992). The
scope of relief under §2255 is the same as that of a
petition for a writ of habeas corpus. Cates, 952
F.2d at 151.
defendant seeking relief under 28 U.S.C. § 2255 may not
do so to raise issues that could have been raised on appeal.
United States v. Walling, 982 F.2d 447, 448-449
(10th Cir. 1992). A petitioner may not raise
constitutional issues for the first time on post-conviction
collateral review unless he shows cause for failing to raise
the issue on direct appeal and actual prejudice resulting
from the error. United States v. Pierce, 959 F.2d
1297, 1301 (5th Cir. 1992), cert. denied,
506 U.S. 1007 (1992); United States v. Shaid, 937
F.2d 228, 232 (5th Cir. 1991). The burden of
showing “cause, ” an “objective factor
external to the defense, ” rests with the petitioner.
McCleskey v. Zant, 111 S.Ct. 1454, 1470 (1991). No
other types of errors may be raised on collateral review
unless the petitioner demonstrates that the error could not
have been raised on direct appeal, and if not corrected,
would result in a complete miscarriage of justice.
Pierce, 959 F.2d at 1301; Shaid, 937 F.2d
at 232. Further, if a claim is raised and considered on
direct appeal, a defendant may not raise the issue in a later
collateral attack. Moore v. United States, 598 F.2d
439, 441 (5th Cir. 1979).
instant §2255 petition, McCauley makes the following
claims for relief, which the court has restated for clarity:
Ground One: Because child pornography does
not constitute interstate commerce, the federal government
did not have jurisdiction to prosecute McCauley.
Ground Two: Ineffective assistance of
counsel for failing to object to illegal search and seizure
of McCauley's cell phone.
Ground Three: The government committed a
Brady violation in failing to provide full
Ground Four: Ineffective assistance of
counsel for failure to adequately investigate due to
Claims of ...