United States District Court, D. South Dakota, Central Division
PHILLIP C. RUNNING, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
OPINION AND ORDER DENYING PLAINTIFF'S 28 U.S.C.
§ 2255 MOTION
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Running, a federal inmate serving a 120-month sentence for
producing child pornography, United States v.
Running, 10-CR-30067-RAL, Doc. 39,  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. The Government opposes Running's
motion, arguing that he is not entitled to relief on any of
his claims. CIV Doc. 18. In an Opinion and Order issued last
year, this Court denied in part Running's motion, but
concluded that a factual issue existed on part of
Running's motion. CIV Doc. 20. This Court appointed
counsel for Running and ordered the parties to supplement the
record. CIV Doc. 20 at 21; Doc. 21. This Court held two
subsequent hearings to determine, among other things, whether
an evidentiary hearing was needed. CIV Docs. 24, 31. The
parties now have supplemented the record through written
submissions in a manner to make it unnecessary for this Court
to conduct an evidentiary hearing because even when resolving
all credibility issues for Running no relief is warranted
here. See United States v. Sellner, 773 F.3d 927,
929-30 (8th Cir. 2014) (stating that an evidentiary hearing
is unnecessary when "the petitioner's allegations,
accepted as true, would not entitle the petitioner to relief
(citation and alterations omitted)); Sinisterra v. United
States, 600 F.3d 900, 906 (8th Cir. 2010) (explaining
that no evidentiary hearing is necessary if "the motion
and the files and records of the case conclusively show that
[the prisoner] is entitled to no relief." (quoting 28
U.S.C. § 2255(b))). This Court repeats its rulings from
the prior Opinion and Order and addresses why none of
Plaintiffs remaining arguments justify § 2255 relief,
thereby setting forth in this opinion and order its full
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.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 making 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 of sexual abuse. 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.
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 Running'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 acknowledged 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).
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 (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 (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
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.
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.
Grounds One, Three, and Four as Independent Claims for
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 (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).
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 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 certainly 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.
Ineffective Assistance of Counsel
ineffective-assistance-of-counsel claims are governed by the
test articulated in Strickland v. Washington, 466
U.S. 668 (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.
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 as the
'counsel' guaranteed the defendant by the Sixth
Amendment." Id. at 687.
establish prejudice, Running must demonstrate a
"reasonable probability" that, but for his
attorney's deficient performance, the outcome of his
trial would have been different. Id at 694. "A
reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id. When,
as here, a petitioner makes multiple claims of ineffective
assistance of counsel, each claim must be independently
examined to determine if there is prejudice, rather than
taking the matters collectively. See Hall v.
Luebbers, 296 F.3d 685, 692-93 (8th Cir. 2002). That is,
the Eighth Circuit has "repeatedly rejected the
cumulative error theory of post-conviction relief."
United States v. Brown. 528 F.3d 1030, 1034 (8th
alleges that his right to a speedy trial was violated because
although the Walworth County Police Department and the South
Dakota Department of Social Services "accused" him
of making the videotape in 2002, he was not indicted until
2010. CIV Doc. 1 at 4. The Sixth Amendment's Speedy-Trial
Clause states that "[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public
trial." U.S. Const, amend. VI. Contrary to Running's
suggestion, a person is not "accused" within the
meaning of the Sixth Amendment simply because authorities
become aware of that person's criminal activity. Rather,
it takes "either a formal indictment or information or .
. . the actual restraints imposed by arrest and holding to
answer a criminal charge" before the Sixth Amendment
right to a speedy trial attaches. United States v.
Marion, 404 U.S. 307, 320 (1971).
Running's Sixth Amendment right to a speedy trial did not
attach until August 17, 2010, when the Government indicted
him for producing child pornography. Thus, any delay before
the indictment did not violate Running's Sixth Amendment
rights. Neither Running's allegations that the State of
South Dakota placed him in a secure group home for making the
videotape nor his being in custody for the sexual abuse
charge on August 17, 2010, alter this conclusion. See
United v. MacDonald, 456 U.S. 1, 10 n.11 (1982)
("Of course, an arrest or indictment by one sovereign
would not cause the speedy trial guarantees to become engaged
as to possible subsequent indictments by another
sovereign."); United States v. Garner, 32 F.3d
1305, 1309 (8th Cir. 1994) ("[I]t is settled law that an
arrest on one charge does not trigger the right to a speedy
trial on another charge filed after ...