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Running v. United States

United States District Court, D. South Dakota, Central Division

January 23, 2015


Page 782

Phillip C. Running, Petitioner, Pro se, PETERSBURG, VA.

For USA, Respondent: Kevin Koliner, U.S. Attorney's Office (Sioux Falls, SD), Sioux Falls, SD.

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pornography, United States v. Running.

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10-CR-30067-RAL, Doc. 39,[1] has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, Running v. United States, 13-CV-3007-RAL, Doc. 1.[2] The Government opposes Running's motion, arguing that he is not entitled to relief on any of his claims. CIV Doc. 18. For the reasons explained below, Running's motion is denied in part, counsel will be appointed for Running, and the parties are ordered to supplement the record.

I. Background

Running first appeared in federal court in early 2009, when he was charged with aggravated sexual abuse of a child. United States v. Running. 09-CR-30026-RAL, Doc. 1.[3] While that case was pending, the Government learned of an unrelated allegation that Running, back in 2001 or 2002 when he was approximately fourteen years old, had made a videotape of his younger siblings with their genitals exposed. CIV Doc. 16 at 2; CR Doc. 49 at 49-50; 2009 CR Doc. 84 at 1. As part of a plea deal, the Government offered to forgo charging Running for the videotape if he agreed to plead guilty in the sexual abuse case. CIV Doc. 16 at 2; CR Doc. 49 at 49-50. Running rejected the offer, proceeded to trial, and was found not guilty. CIV Doc. 16 at 2. Thereafter, on August 17, 2010, a grand jury charged Running with two counts of producing child pornography in connection with the videotape. CR Doc. 1. The indictment alleged that Running committed the offenses between on or about June 1, 2001 and May 21, 2002. CR Doc. 1.

Running's trial was short, lasting only one day. CR Doc. 46. The evidence established that from July 1996 until March 2002, Running and his younger siblings lived in South Dakota with their foster parents Susan and Dell Neumeister. CR Doc. 46 at 49-50. The Neumeisters discovered the videotape in question in May 2002, when their daughter placed what she thought was a children's movie in the VCR. CR Doc. 46 at 40-51. The videotape showed Running's nine-year-old sister H.N. and six-year-old brother B.N. with their genitals exposed. CR Doc. 46 at 67-68. A voice could be heard on the videotape telling the children to pose in sexually suggestive ways. CR Doc. 46 at 68. Susan Neumeister testified at trial that she recognized the voice on the videotape as Phillip's. CR Doc. 46 at 54. The jury also heard from Tim Huyck, a counselor who had worked with Running. CR Doc. 46 at 63. Huyck testified that Running had confessed to making the videotape of his siblings. CR Doc. 46 at 64. The Government rested after presenting testimony from three witnesses and playing the videotape. CR Doc. 46 at 65. Running moved unsuccessfully for a judgment of acquittal and did not offer any witnesses or evidence. CR Doc. 46 at 66-69. The jury convicted Running of both counts, CR Doc. 28, and this Court sentenced Running to two concurrent terms of 120 months' imprisonment, CR Doc. 39. The ten-year mandatory minimum that applied to Running's conviction made this the lowest sentence possible. 18 U.S.C. § 2251 (2000).

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Running appealed his conviction to the United States Court of Appeals for the Eighth Circuit. United States v. Running, 431 F.App'x 520 (8th Cir. 2011) (per curiam) (unpublished). His counsel filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that this Court lacked jurisdiction because Running was a juvenile at the time of the offenses but was not prosecuted until he was an adult. Running, 431 F.App'x at 520. The Eighth Circuit reviewed the record under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), concluded that there were " no nonfrivolous issues for appeal," and affirmed Running's conviction. Running, 431 F.App'x at 521. Running petitioned the Supreme Court of the United States for a writ of certiorari, which was denied on April 2,2012. Running v. United States, 132 S.Ct. 1859, 182 L.Ed.2d 648 (2012) (mem.).

On February 12, 2013, Running filed his § 2255 petition asserting the following grounds for relief: (1) his speedy trial rights were violated; (2) his counsel was ineffective; (3) the Government used a coerced confession to convict him; and (4) his sentence violated the Eighth Amendment. To allow the Government to respond to Running's petition, this Court ordered that Running choose between waiving his attorney-client privilege or having his ineffective-assistance claim stricken. CIV Doc. 12. Running chose to waive the attorney-client privilege, CIV Doc. 13, after which the Government filed an affidavit from Running's prior counsel Jana Miner, who is the Senior Litigator for the Federal Public Defender's Office for North and South Dakota and who was Running's attorney in both his 2009 and 2010 cases, CIV Doc. 16. It is not entirely clear whether Running meant for Grounds One, Three, and Four of his petition to be free-standing claims or merely a continuation of his ineffective-assistance-of-counsel claim in Ground Two. For instance, although Ground Three is captioned " Conviction Obtained by use of Coerced Confession," Running argues within this ground that Miner failed to adequately investigate his case. CIV Doc. 1 at 6. Giving Running the benefit of the doubt, this Court will analyze Grounds One, Three, and Four as both independent claims for relief and as claims that Miner provided ineffective assistance of counsel.

II. Analysis

A. Grounds One, Three, and Four as Independent Claims for Relief

The Government argues that Grounds One, Three, and Four of Running's petition must be dismissed because they are procedurally defaulted. Claims not raised on direct appeal are procedurally defaulted and may not be asserted in a habeas petition unless the petitioner can demonstrate " cause and actual prejudice" or " that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal quotation marks and citations omitted); United States v. Collier, 585 F.3d 1093, 1097 (8th Cir. 2009). When Running appealed to the Eighth Circuit, he failed to raise any of the claims he now raises in Grounds One, Three, and Four of his petition. Because Running does not claim actual innocence, he must demonstrate both cause for failing to raise these claims on direct appeal and actual prejudice therefrom. Charboneau v. United States, 702 F.3d 1132, 1136 (8th Cir. 2013).

Running has failed to make this showing. Although ineffective assistance of appellate counsel may excuse a procedural default, Becht v. United States, 403 F.3d 541, 545 (8th Cir. 2005), Running does not argue that Miner provided ineffective

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assistance by failing to raise Grounds One, Three, and Four on direct appeal. Rather, he contends that these claims were not previously presented because he " was not aware" of Miner's " trial strategy" and because he is not " educated in criminal law defenses." CIV Doc. 1 at 8. But ignorance of the law does not excuse a procedural default. Hall v. United States, 41 F.App'x 743, 744 (6th Cir. 2002); Rodriguez v. Maynard, 948 F.2d 684, 688 (10th Cir. 1991); Smittie v. Lockhart, 843 F.2d 295, 298 (8th Cir. 1988). Running has not explained how being better aware of Miner's trial strategy would have enabled him to avoid a procedural default. Running was fully aware of Miner's trial strategy by the time he filed his direct appeal. Because Running has not demonstrated cause for failing to raise the claims in Grounds One, Three, and Four on direct appeal, these grounds are dismissed to the extent that they are independent claims for relief.

B. Ineffective Assistance of Counsel

Running's ineffective-assistance-of-counsel claims are governed by the test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). An ineffective-assistance claim has two elements: Running must show both that his counsel's performance was constitutionally deficient and that he was prejudiced by this deficiency. Strickland, 466 U.S. at 687.

To demonstrate deficient performance, Running must show that " counsel's representation fell below an objective standard of reasonableness." Id. at 688. This standard is " highly deferential," and courts " must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Running has the burden of demonstrating that " counsel made errors so serious that counsel was not functioning ...

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