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Paul Edward Kincaid v. United States of America

May 20, 2011

PAUL EDWARD KINCAID, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Sue E. Myerscough, United States District Judge.

E-FILED

Monday, 23 May, 2011 08:22:03 AM

Clerk, U.S. District Court, ILCD

OPINION

In January 2010, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody pursuant to 28 U.S.C. §2255 (Petition) (d/e 1). Petitioner alleges he received ineffective assistance of counsel when his trial counsel failed to preserve for appeal his claim that his crimes bore an insufficient nexus to interstate commerce to support federal jurisdiction under the Commerce Clause. He also alleges ineffective assistance of counsel in that counsel pressured him into signing the Waiver of Jury Trial and Stipulations for Bench Trial (Waiver). Specifically, Petitioner alleges he: (1) was in pain when he was brought into court for the status hearing at which he signed the Waiver; and (2) did not have an opportunity to review the agreement before signing it. For the reasons that follow, the Court finds an evidentiary hearing is not warranted and the Petition (d/e 1) is DENIED.

I. BACKGROUND

A. The District Court Proceedings In October 2006, the grand jury charged Petitioner in a two-count indictment with the production of child pornography (Count I) (18 U.S.C. §2251(a)) and possession of child pornography (Count II) (18 U.S.C. §2252A(a)(5)(B)). Count I alleged Petitioner: knowingly employed, used, persuaded, induced, enticed and coerced a person under the age of eighteen years, to engage in sexually explicit conduct as defined in Title 18, United States Code, Section 2256(2), for the purpose of producing visual depictions of such conduct, knowing or having reason to know that such visual depictions would be transported in interstate and foreign commerce and mailed, and said visual depictions having been produced using materials that had been mailed, shipped, and transported in interstate and foreign commerce by any means, including by computer, and said visual depictions having actually been transported in interstate and foreign commerce and mailed.

Count II alleged Petitioner: knowingly possessed books, magazines, pictures and other materials containing three or more images of child pornography, as that term is defined in 18 United States Code Section 2256(8), which had been mailed and shipped and transported in interstate and foreign commerce, including by computer, and that were produced using materials that had been mailed and shipped and transported in interstate and foreign commerce, including by computer.

In June 2007, Petitioner filed a Motion to Dismiss for Failure to Establish the Jurisdictional Element. In that motion, Petitioner essentially challenged whether a sufficient connection to interstate commerce existed to confer federal jurisdiction under the Commerce Clause.

Later in June 2007, Petitioner waived his right to a jury trial, and the parties agreed to a stipulated bench trial. In the Waiver, Petitioner stipulated to numerous facts, including that the camera he used to produce the pictures of Victim 6 was manufactured in a facility in China and the origin of the film used to take pictures of Victim 6 was Enschede, Holland. He further stipulated that the Polaroid company provided information establishing that it has never produced Polaroid film in the United States and has never assembled Polaroid cameras in the United States.

The Waiver also provided that Petitioner desired to waive his right to a trial by jury and proceed to a bench trial on two issues: (1) relevant to Count I, "whether the child pornography produced by the defendant was produced using materials that had been mailed, shipped, or transported in interstate or foreign commerce by any means"; and (2) relevant to Count II, "whether the child pornography knowingly possessed by the defendant was produced using materials that had been mailed, or shipped or transported in interstate or foreign commerce by any means."

During the hearing, the Court admonished Petitioner of the rights he was waiving, determined Petitioner was competent to understand the proceedings, confirmed that his waiver was voluntary, and confirmed Petitioner's understanding of the two issues he was "keeping the right to contest." In addition, Petitioner admitted he had enough time and opportunity to discuss the case and his options with his attorneys and was satisfied with their representation. Petitioner informed the Court he had a chance to read the Waiver and understood everything in the document, and had a chance to review and discuss the Waiver with his attorneys before signing it. When asked how he felt physically, Petitioner responded, "Now I feel pretty good, Your Honor."

Petitioner's attorneys withdrew all pending pretrial motions, including the Motion to Dismiss for Failure to Establish the Jurisdictional Element. The Court asked Petitioner if he understood that those motions were being withdrawn and would not be ruled upon and whether he agreed with that. Petitioner responded that he did.

The parties thereafter filed trial briefs. In Petitioner's brief, he asserted the Government failed to prove a requisite element in the indictment. According to Petitioner, Count I alleged: (a) he produced child pornography using material shipped in interstate commerce; (b) he knew that the pictures would be transported in interstate commerce; and (c) the pictures were transported in interstate commerce. Count II alleged: (d) he possessed child pornography produced with material shipped in interstate commerce; and (e) the pictures were transported in interstate commerce. ...


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