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McCauley v. United States

United States District Court, N.D. Mississippi, Aberdeen Division

October 4, 2017

GREGORY McCAULEY PETITIONER
v.
UNITED STATES OF AMERICA RESPONDENT

          MEMORANDUM OPINION AND ORDER

          MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE

         This 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.

         Facts and Procedural Posture

         On July 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.

         Scope of §2255 Review

         There 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.

         A 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).

         McCauley's §2255 Claims

         In the 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 discovery.
Ground Four: Ineffective assistance of counsel for failure to adequately investigate due to insufficient discovery.

         Several Claims of ...


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