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United States v. Mercer

United States District Court, W.D. Oklahoma

July 16, 2018

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
DONOVAN GENE MERCER, Defendant-Movant.

          ORDER

          VICKI MILES-LAGRANGE UNITED STATES DISTRICT JUDGE

         Defendant-Movant Donovan Gene Mercer (“Mercer”), a federal prisoner, filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody on February 27, 2017. On May 24, 2017, plaintiff-respondent filed its response. On June 29, 2017, Mercer filed his Supplemental Brief to United States' Response to Movant's 28 U.S.C. § 2255 Motion, and on May 7, 2018, Mercer filed his Supplemental Brief Supporting an Evidentiary Hearing.

         I. Introduction

         On September 17, 2014, a federal grand jury in the Western District of Oklahoma returned an Indictment, charging Mercer with accessing or attempting to access child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). On September 19, 2014, the government filed its Notice and Motion in Limine to Admit Rule 414 Evidence. On October 5, 2014, Mercer filed a notice of intent to rely on the defense of alibi. On January 12, 2015, the Court held a hearing on the admissibility of the Rule 414 Evidence, and at the conclusion of the hearing, the Court granted the government's Motion in Limine to Admit Rule 414 Evidence.

         A jury trial was held January 13, 2015 through January 15, 2015. On January 15, 2015, the jury found Mercer guilty on all counts. On August 7, 2015, Mercer was sentenced to 265 months of imprisonment. Mercer appealed his conviction to the Tenth Circuit Court of Appeals, asserting that the Court abused its discretion in concluding that the probative value of the Rule 414 evidence was substantially outweighed by the risk of unfair prejudice. The Tenth Circuit affirmed Mercer's conviction. See United States v. Mercer, 653 Fed.Appx. 622 (10th Cir. 2016).

         II. Discussion

         Mercer asserts the following four grounds in support of his § 2255 motion: (1) Mercer's Eighth Amendment right to be free from punishment on the basis of actual innocence and his Fourteenth Amendment right to a fair trial and equal protection of the laws were violated when the government presented the jury with evidence that was purposefully altered; (2) Mercer's counsel was ineffective based upon his failure to investigate mitigating evidence; (3) the Court abused its discretion by not using the basic threshold requirements of the Federal Rules of Evidence to determine the admissibility, relevance, and probative value of the Rule 414 similar act evidence; and (4) the Court abused its discretion when it sentenced Mercer for the possession of child pornography, along with enhancements for that possession, when he was not charged with possession of child pornography.

         A. Procedural bar

         The government asserts that grounds one and four in support of Mercer's § 2255 motion are procedurally barred.[1] Mercer did not raise either of these grounds in his direct appeal.

         “[Section] 2255 is not available to test the legality of matters which should have been raised on appeal.” United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994) (internal quotations and citations omitted). “A defendant who fails to present an issue on direct appeal is barred from raising the issue in a § 2255 motion, unless he can show cause for his procedural default and actual prejudice resulting from the alleged errors, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed.” Id. at 378. “If the government raises procedural bar, the courts must enforce it and hold the defendant's claims procedurally barred unless cause and prejudice or a miscarriage of justice is shown.” Id.

         The “cause and prejudice” standard requires a defendant to show not only that “some objective factor external to the defense” impeded his efforts to raise the issue, Coleman v. Thompson, 501 U.S. 722, 753 (1991), but also that the error he alleges “worked to his actual and substantial disadvantage.” United States v. Frady, 456 U.S. 152, 170 (1982). Cause may be established by showing that the factual or legal basis for a claim was not reasonably available to the defendant at the time, that interference by governmental officials made compliance impracticable, or that counsel was constitutionally ineffective. McCleskey v. Zant, 499 U.S. 467, 494 (1991).

         A “fundamental miscarriage of justice” means that the defendant is actually innocent of the offense. Schlup v. Delo, 513 U.S. 298, 321 (1995). Further, “if a defendant can adduce new evidence in post-conviction proceedings showing that constitutional error probably resulted in the conviction of one who was actually innocent, the court may reach the merits of otherwise defaulted claims.” United States v. Cervini, 379 F.3d 987, 991 (10th Cir. 2004) (internal quotations and citations omitted). “In order to meet this standard, however, [t]he petitioner [is] required to establish, by a fair probability, that the trier of facts would have entertained a reasonable doubt of his guilt.” Id. (internal quotations and citation omitted). Further,

[t]here must be a showing that no reasonable juror would have found the defendant guilty. This requires a probabilistic determination about what reasonable, properly instructed jurors would do. Ultimately, actual innocence is not an easy showing to make: To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial. ...

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