Carr v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

THOMAS LESLIE CARR,

Movant,

vs. Case No.: 3:20-cv-160-BJD-JBT

3:16-cr-118-BJD-JBT

UNITED STATES OF AMERICA,

Respondent.

/

ORDER

Thomas Leslie Carr, a pro se federal inmate, moves under 28 U.S.C. §

2255 to vacate his conviction and sentence for two counts of producing child

pornography. (Civ. Doc. 1, § 2255 Motion.)1 He alleges that trial counsel gave

ineffective assistance and that the statute of conviction is unconstitutional, both

facially and as applied to him. The United States responded in opposition. (Civ.

Doc. 6, Response.) Carr did not file a reply, despite being given permission and

an extension of time to do so. Thus, the case is ripe for a decision.

Under 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255

Proceedings2, the Court has considered the need for an evidentiary hearing and

1 “Civ. Doc. __” refers to entries on the civil § 2255 docket, No. 3:20-cv-160-BJD-JBT.

“Crim. Doc. __” refers to entries on the criminal docket, No. 3:16-cr-118-BJD-JBT.

2 Rule 8(a) of the Rules Governing Section 2255 Proceedings requires the Court to review

the record, including any transcripts and submitted materials, to determine whether an

evidentiary hearing is warranted before resolving a § 2255 motion.

determines that a hearing is unnecessary to resolve the merits. No evidentiary

hearing is required because Carr’s allegations are affirmatively contradicted by

the record, patently frivolous, or even assuming the facts he alleges are true, he

still would not be entitled to relief. Rosin v. United States, 786 F.3d 873, 877

(11th Cir. 2015); see also Patel v. United States, 252 F. App’x 970, 975 (11th

Cir. 2007).3 Thus, Carr’s § 2255 Motion will be denied.

I. Background

In October 2012, Homeland Security Investigations (HSI) and Florida law

enforcement agencies began to investigate a trafficking and prostitution ring

led by a man named Michael Gallon. (Crim. Doc. 76, Presentence Investigation

Report [PSR] ¶ 6.)4 Investigators discovered that Gallon had recruited several

females, including minors, to work for him as “dancers.” Id. Gallon took women

and girls to locations throughout Florida and Georgia, where he would

prostitute the females at “house parties” and private events. Id.; (see also Crim.

Doc. 101, Trial Transcript Vol. I at 29–31.) There, male attendees would pay a

fee to Gallon and a separate fee to the females to engage in sexual activity. PSR

¶ 6. Investigators learned that Gallon used various tactics to recruit women and

3 The Court does not rely on unpublished opinions as binding precedent, but they may

be cited in this Order when the Court finds them persuasive on a particular point. See

McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see 11th Cir. R. 36–2.

4 With one exception, Carr did not object to the facts in the PSR. (Crim. Doc. 104,

Sentencing Transcript at 5). Carr insisted that he did ask about the victims’ ages, compare

Sentencing Tr. at 39 with PSR ¶ 13, but that dispute is not material to this Order.

girls, including recruiting girls from low-income areas and promising them

large sums of money. Trial Tr. Vol. I at 30. Sometimes Gallon would profess his

love for the girls, but other times Gallon resorted to outright violence, including

rape, to control the victims. See id.

During the investigation, HSI agents discovered that Carr, who lived in

Jacksonville, Florida, was one of Gallon’s recurring clients. PSR ¶ 7; Trial Tr.

Vol. I at 42. As was Gallon’s custom, he offered Carr access to the females in his

employ in exchange for a fee. PSR ¶ 7. Carr would hire females from Gallon for

sex and to create sexually explicit photographs and videos. Id. HSI also

identified two minors––M.D. and S.P.––who were involved in dealings between

Gallon and Carr. Id. Law enforcement officers, including HSI Special Agent

Justin Deutsch, interviewed M.D. and S.P. in person and confirmed their

identities and dates of birth through birth certificates and Department of Motor

Vehicle (DMV) records. See Trial Tr. Vol. I at 32–42; see also Gov’t Exs. 1–4A.

The minors provided information that, along with other sources, helped law

enforcement identify Carr as a suspect. Trial Tr. Vol. I at 42.

On November 14, 2013, agents from HSI and other law enforcement

organizations executed a federal search warrant at Carr’s residence. PSR ¶ 8.

During the search, agents found two Canon Rebel cameras, four JVC video

recorders, an Acer laptop computer, nearly 300 SD cards, hundreds of printed

photographs of females, and other electronic storage devices. Id. Agents found

a nude photograph of S.P. on top of a stack of photographs. Trial Tr. Vol. I at

56–57; Gov’t Ex. 13.

Carr consented to an interview with the agents while they were at his

residence. PSR ¶ 9. The agents asked Carr if he knew why they were there, and

Carr responded that he thought it was about “Mike,” the man who “brings the

girls.” Id.; see also Trial Tr. Vol. I at 47. Carr identified Michael Gallon from a

photo array of six individuals. PSR ¶ 9.

During the interview, Carr said he met Gallon at a Jacksonville strip club

in 2010. Id. ¶ 10. Gallon would show up at the strip club with eight or nine girls,

some of whom would prostitute in the back rooms at the club. Id. Carr said

Gallon was not from Jacksonville and that he traveled across the state with the

females. Id. Carr developed a relationship with Gallon, in which Gallon would

call or text message Carr when he was in town with females, and Carr would

pay Gallon a fee to take a female back to his residence for “photograph sessions.”

Id.; Trial Tr. Vol. I at 49–52. Over the three years he had known Gallon, Carr

hired about fifteen girls from him. PSR ¶ 11. Carr would typically meet Gallon

at a strip club or some other business (like a hotel or motel), review the girls

who accompanied Gallon, and after choosing the female he found most

attractive, Carr would pay Gallon a $20–$30 fee to take the female back to his

residence. Id. Once at his residence, Carr would pay the female $100 for a photo

session, which would generally involve the female wearing an outfit and

stripping nude. Id.; Trial Tr. Vol. I at 49–51. Carr said he usually tried to get

the female to masturbate on video and, once she was doing so, he would attempt

to have sexual intercourse with them. PSR ¶ 11; Trial Tr. Vol. I at 51. If a female

was reluctant to have sex, Carr said he would offer them more money to

convince them to do so. PSR ¶ 11; Trial Tr. Vol. I at 51. Carr estimated that he

had sex with about half the girls he photographed and that he knew Gallon was

a “pimp.” PSR ¶ 11; Trial Tr. Vol. I at 51, 72.

The agents asked Carr which devices he used to photograph the girls, and

Carr responded that he used a digital Canon Rebel camera and a digital video

camera. PSR ¶ 12. Carr said he stored the photographs on SD memory cards or

uploaded them to his computer, and that he also printed some photographs. Id.

Carr said he assumed that the girls he hired were at least 18 years old because

Gallon usually brought them to a strip club, where only adults were allowed.

Id. ¶ 13. When shown photos of M.D. and S.P., Carr recognized them as females

he had hired from Gallon. Id. ¶¶ 13–14. However, Carr denied knowing that the

girls were underage. Id. ¶ 13.

A forensic analysis of Carr’s devices revealed eighteen still images of

M.D., all taken on October 27, 2012, when she would have been fifteen years

old. PSR ¶¶ 16, 17; Trial Tr. Vol. I at 123, 129–30, 157–58; Gov’t Exs. 42–44,

46–57. M.D. was nude in several of these images, with a focus on her genitalia.

PSR ¶ 17; Trial Tr. Vol. I at 148–49. A forensic analysis also revealed thirteen

still images of S.P., all taken on April 12, 2013, when she would have been

seventeen years old. PSR ¶ 18; Trial Tr. Vol. I at 123, 130, 157; Gov’t Exs. 58–

64. S.P. was nude in several of these images as well, with a focus on her

genitalia. PSR ¶ 18. In addition, an SD card recovered from Carr’s residence

contained two videos of S.P. masturbating or having intercourse with Carr. PSR

¶ 19. That video was also produced on April 12, 2013. Id.

In 2016, a federal grand jury returned a two-count indictment against

Carr. (Crim. Doc. 3, Indictment.) Count One charged him with the production

of child pornography for his activities with M.D., in violation of 18 U.S.C. §

2251(a).5 Count Two charged Carr with the production of child pornography for

his activities with S.P., in violation of the same statute. Carr was arrested two

days later. He pleaded not guilty to the charges, assisted by court-appointed

counsel Mark Ciaravella. Following a detention hearing, a United States

Magistrate Judge ordered Carr to be detained pending trial. (Crim. Doc. 19,

Detention Order; Crim. Doc. 19-1, Detention Findings.)

The government moved to preclude Carr from presenting a mistake-of-

age defense. (Crim. Doc. 39, Motion in Limine.) The government argued that

under United States v. X-Citement Video, Inc., 513 U.S. 64, 77 n.5 (1994), and

5 18 U.S.C. § 2251(a) makes it unlawful to “employ[ ], use[ ], persuade[ ], induce[ ], entice[

], or coerce[ ] any minor to engage in … any sexually explicit conduct for the purpose of

producing any visual depiction of such conduct … if that visual depiction was produced or

transmitted using materials that have been mailed, shipped, or transported in or affecting

interstate or foreign commerce by any means, including by computer.”

United States v. Deverso, 518 F.3d 1250, 1258 (11th Cir. 2008), knowledge of

the victim’s age is not an element of the crime of producing child pornography,

nor is mistake-of-age an available defense. Carr’s attorney acknowledged that

under circuit precedent “a defendant’s knowledge of the victim’s age is not an

element the government is required to prove in a prosecution under § 2251(a).”

(Crim. Doc. 55, Response to Mtn. in Limine at 1.) But, he argued, it would

violate Carr’s rights under the First, Fifth, and Sixth Amendments to the

United States Constitution to prevent him from asserting a mistake-of-age

defense. Id. He argued that the Eleventh Circuit had misconstrued X-Citement

Video and that the ability to raise a mistake-of-age defense “is necessary to save

§ 2251 from constitutional invalidation.” Id. at 2; see also id. at 3–10. Following

Eleventh Circuit precedent, the Court granted the Motion in Limine and

ordered that Carr could not present a mistake-of-age defense. (Crim. Doc. 60,

Minute Entry.)

The case went to a jury trial on May 31 and June 1, 2017. The jury heard

testimony from four HSI special agents about their investigation and received

evidence seized from Carr’s residence. The jury also heard testimony from Jay

Wingate, a character witness who testified on Carr’s behalf. Carr’s attorney

subpoenaed M.D. and S.P. to testify, but neither appeared. (See Crim. Doc. 102,

Trial Transcript Vol. II at 48.) In closing argument, the government asserted

that the evidence proved beyond a reasonable doubt that Carr employed, used,

or persuaded M.D. and S.P. to engage in sexually explicit activity to create

images of such conduct, that M.D. and S.P. were minors when that occurred,

and that Carr had produced the images using materials that were transported

in interstate or foreign commerce. Id. at 66–76. Carr argued that the

government had not proved the ages and identities of the females beyond a

reasonable doubt, nor had the government proved that Carr coerced them to

engage in sexually explicit conduct, since the females were willing participants

and Carr did not use threats or force. Id. at 76–88. The jury deliberated for less

than two hours before returning a guilty verdict on both counts. See id. at 110–

12; (Crim. Doc. 71, Jury Verdict).

At sentencing, Carr gave a statement and testimony, in which he

expressed remorse and insisted he never would have hired M.D. and S.P.––who

purportedly misrepresented their ages––had he known they were minors.

Sentencing Tr. at 22–39. Carr’s parents, two friends, and brother-in-law each

gave a statement attesting that Carr was a generous and dutiful friend and

family member. Id. at 10–21. While acknowledging that mistake-of-age is not a

defense to the charges, Carr’s attorney argued that his genuine mistake about

the victims’ ages was a relevant consideration for sentencing, id. at 43–44, with

which the Court agreed, see id. at 61. Carr’s attorney also pointed out that Carr

had not used threats, force, or violence with the girls and argued that the

guidelines range was inflated. See id. at 44–52, 66–68. The Court determined

that Carr should be given a two-level reduction for acceptance of responsibility

because he cooperated with the investigation and never denied his encounters

with M.D. and S.P., resulting in a guidelines range of 262 to 327 months’

imprisonment. Id. at 69–70. The Court ultimately sentenced Carr to the

mandatory minimum: 15 years (180 months) in prison for both counts, running

concurrently. (Crim. Doc. 88, Judgment.) The Court explained that while Carr’s

conduct was serious, the mandatory minimum imposed a greater sentence than

was necessary under the circumstances. Sentencing Tr. at 69–76.

Carr appealed his conviction and sentence, arguing “that the statute is

unconstitutional because it does not include knowledge of the victim’s age as an

element of the offense and does not permit him to present ignorance of the

victim’s age as a defense.” (Crim. Doc. 108, USCA Opinion at ECF p. 2.) The

Eleventh Circuit summarily rejected Carr’s arguments, finding them foreclosed

by United States v. Ruggiero, 791 F.3d 1281, 1284–91 (11th Cir. 2015). USCA

Opinion at ECF pp. 3–5. Thus, the Eleventh Circuit affirmed Carr’s convictions

and sentence. Id. at ECF p. 5.

Carr did not petition the Supreme Court for certiorari review. These §

2255 proceedings timely followed.

II. Discussion

Under Title 28, United States Code, Section 2255, a person in federal

custody may move to vacate, set aside, or correct his sentence. Section 2255

permits collateral relief on four grounds: (1) the sentence was imposed in

violation of the Constitution or laws of the United States; (2) the court lacked

jurisdiction to impose the sentence; (3) the imposed sentence exceeded the

maximum authorized by law; or (4) the imposed sentence is otherwise subject

to collateral attack. 28 U.S.C § 2255(a) (2008). Only jurisdictional claims,

constitutional claims, and claims of error that are so fundamentally defective

as to cause a complete miscarriage of justice warrant relief through collateral

attack. United States v. Addonizio, 442 U.S. 178, 184–86 (1979); Spencer v.

United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc) (“[A] district court

lacks the authority to review the alleged error unless the claimed error

constitute[s] a fundamental defect which inherently results in a complete

miscarriage of justice.” (internal quotation marks omitted)). A petitioner’s claim

that he received ineffective assistance of counsel in violation of the Sixth

Amendment is properly brought in a collateral proceeding under § 2255.

Massaro v. United States, 538 U.S. 500, 504 (2003).

To establish ineffective assistance of counsel, a § 2255 movant must

establish both: (1) that his counsel’s conduct amounted to constitutionally

deficient performance, and (2) that counsel’s deficient performance prejudiced

his defense. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). In

determining whether counsel performed deficiently, the Court adheres to the

standard of reasonably effective assistance. Weeks v. Jones, 26 F.3d 1030, 1036

(11th Cir. 1994) (citing Strickland, 466 U.S. at 688). The petitioner must show,

given all the circumstances, that counsel’s performance fell outside the “wide

range of professionally competent assistance.” Scott v. United States, 890 F.3d

1239, 1258 (11th Cir. 2018) (internal quotation marks and citation omitted). In

other words, “[t]he standard for effective assistance of counsel is

reasonableness, not perfection.” Brewster v. Hetzel, 913 F.3d 1042, 1056 (11th

Cir. 2019) (citing Strickland, 466 U.S. at 687). To show that counsel’s deficient

performance prejudiced the defense, the petitioner must show a reasonable

probability that, but for counsel’s error, the result of the proceeding would have

been different. Strickland, 466 U.S. at 694. In determining whether a petitioner

has met the two prongs of deficient performance and prejudice, the Court

considers the totality of the evidence. Id. at 695. Because both prongs are

necessary, “there is no reason for a court… to approach the inquiry in the same

order or even to address both components of the inquiry if the defendant makes

an insufficient showing on one.” Id. at 697.

A § 2255 movant “bears the burden to prove the claims in his § 2255

motion.” Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015); see also

Beeman v. United States, 871 F.3d 1215, 1221–23 (11th Cir. 2017). If “‘the

evidence does not clearly explain what happened … the party with the burden

loses.’” Beeman, 871 F.3d at 1225 (citation omitted). A § 2255 movant is not

entitled to a hearing, much less relief, “when his claims are merely conclusory

allegations unsupported by specifics or contentions that in the face of the record

are wholly incredible.” Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991)

(citation omitted).

A. Ground One: Alleged misadvice during plea negotiations

Carr alleges that trial counsel gave ineffective assistance because his

“improper advice on the law resulted in a greater than necessary sentence.” §

2255 Motion at 4; see also Memorandum (Civ. Doc. 1-1) at 1–2. Carr asserts

that during plea negotiations, his counsel informed him that “knowledge of age”

was an element of the crime, and “thus Mr. Carr could go to trial and maybe

win.” Memorandum at 1. Because Carr met M.D. and S.P. at a strip club and

thought they were adults, he says he relied on counsel’s advice that knowledge

of age was an element of the crime and decided to go to trial. See id. But

mistake-of-age was not a defense to the charges, so “[t]he jury was not

instructed on the required scienter.” Id. Carr adds that during deliberations,

the jury sent a note asking whether it mattered if Carr thought the victims were

over age eighteen. Id. The Court responded that the facts the government had

to prove were contained in the jury instructions. See Trial Tr. Vol. II at 112.

Carr alleges that had he known ignorance of the victim’s age was

immaterial and that the jury could not consider a mistake-of-age defense, “he

would have pleaded guilty and sought a plea bargain (but appealed the statute’s

validity).” Memorandum at 1. He contends that he “would have had a favorable

plea bargain” given the yearslong “delay in [bringing] the indictment,” which

he thinks “indicate[d] weakness in the government’s case.” Id. Carr asserts that

had counsel correctly advised him, “there would have been a bargain” and his

guidelines range would have been 72 to 108 months in prison. Id. at 2.6

The government responds that Carr knew that mistake-of-age was not a

defense to the charges because he was sitting at the table during the detention

hearing when his lawyer acknowledged that mistake-of-age was not an

affirmative defense. Response at 10–12. The government also argues that Carr

was not prejudiced because he was ultimately sentenced to the mandatory

minimum and he fails to show that the government would have offered him a

plea deal that would have allowed him to obtain a lesser sentence. See id. at 13.

“Defendants have a Sixth Amendment right to counsel, a right that

extends to the plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162

(2012). So, “[d]uring plea negotiations defendants are ‘entitled to the effective

assistance of competent counsel.’” Id. (quoting McMann v. Richardson, 397 U.S.

759, 771 (1970)). Strickland’s two-part framework “applies to challenges to

guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474

6 The record reflects that, at some point after the search warrant was executed but before

indictment, Carr received a “target letter” informing him he was the target of an investigation.

Trial Tr. Vol. II at 14. Counsel was appointed to represent Carr after he received the target

letter. Id. The government offered Carr a plea agreement to resolve the case short of

indictment, but “[a]fter some time,” Carr rejected the offer “with advice of counsel.” Id. at 14–

15. The record is silent about the terms of the pre-indictment offer or why Carr rejected it.

U.S. 52, 57 (1985). “The performance prong of Strickland requires a defendant

to show that counsel’s representation fell below an objective standard of

reasonableness.” Lafler, 566 U.S. at 163 (internal quotation marks and citation

omitted). “In the context of pleas a defendant must show the outcome of the plea

process would have been different with competent advice.” Id. (citing Missouri

v. Frye, 566 U.S. 134, 148, 132 S. Ct. 1399, 1410 (2012)).

As for counsel’s performance, the record casts doubt on Carr’s allegation

that counsel advised him that knowledge of the minor’s age was an element of

the crime. At the detention hearing, Carr’s lawyer acknowledged––in Carr’s

presence––that mistake-of-age was not a defense to the charges. See Detention

Findings (Crim. Doc. 19-1) at 2. Although counsel argued that Carr’s ignorance

or mistake about the victims’ ages signified a lack of dangerousness for purposes

of pretrial release, he acknowledged the state of the law as it related to the

mistake-of-age defense. Id. Later, in response to the government’s Motion in

Limine, counsel argued that it would violate Carr’s rights under the First, Fifth,

and Sixth Amendments to the United States Constitution to prevent him from

asserting a mistake-of-age defense. See Response to Motion in Limine at 2–10.

But again, Carr’s lawyer acknowledged that circuit precedent foreclosed this

argument. Id. at 1–2. And there were additional discussions at trial and

sentencing about Carr’s ignorance of the victims’ ages, but Carr expressed no

surprise that his ignorance was not a defense. See Minute Entry (Crim. Doc.

60) (granting government’s Motion in Limine); Trial Tr. Vol. II at 58–60, 110–

12; Sentencing Tr. at 22–32, 43–44. Given this record, counsel likely did not

advise Carr during plea negotiations that knowledge of the victim’s age was an

element of the crime, which would have contradicted counsel’s positions in open

court. But because the record does not conclusively establish what counsel told

Carr during plea negotiations, the Court assumes that counsel misadvised Carr

in this regard during plea discussions.

Even so, Carr fails to establish prejudice under Strickland and Lafler.

“[H]ere the ineffective advice led not to an offer’s acceptance but to its rejection.

Having to stand trial, not choosing to waive it, is the prejudice alleged.” Lafler,

566 U.S. at 163–64. To show prejudice in this context,

a defendant must show that but for the ineffective advice of counsel there

is a reasonable probability that [1] the plea offer would have been

presented to the court (i.e., that the defendant would have accepted the

plea and the prosecution would not have withdrawn it in light of

intervening circumstances), [2] that the court would have accepted its

terms, and [3] that the conviction or sentence, or both, under the offer’s

terms would have been less severe than under the judgment and sentence

that in fact were imposed.

Id. at 164 (bracketed numbers added).

Carr’s allegations are too vague and conclusory to support a finding of

prejudice under Lafler. See Tejada, 941 F.2d at 1559 (recognizing that a

petitioner is not entitled to habeas relief “when his claims are merely conclusory

allegations unsupported by specifics or contentions that in the face of the record

are wholly incredible.” (internal quotation marks and citations omitted)). Carr

does not allege that the government actually extended a plea offer he would

have accepted but for counsel’s misadvice. See § 2255 Motion at 4;

Memorandum at 1–2. He does not detail the terms of an actual plea offer or say

when the government offered it. Instead, Carr speculates that, had his counsel

properly advised him about the law, he could have obtained a plea deal in which

Carr (1) entered some sort of guilty plea, (2) appealed the constitutionality of

the statute (18 U.S.C. § 2251(a)), and (3) was given a guidelines range of 72 to

108 months’ imprisonment. Memorandum at 1–2. But Carr points to nothing in

the record supporting a conclusion that the government would have offered such

an arrangement.

The government also denies that it would have offered a plea deal like the

one Carr describes. See Response at 13. Indeed, the terms of Carr’s theoretical

plea bargain are impossible or internally inconsistent. To appeal the

constitutionality of § 2251(a) (as he claims he would have under his hypothetical

plea deal), Carr would have had to plead guilty to at least one count of producing

child pornography. But Carr could not have pleaded guilty to producing child

pornography and been sentenced to 72 to 108 months’ imprisonment, since the

offense carries a 15-year mandatory minimum penalty. See 18 U.S.C. § 2251(e).7

Had Carr pleaded guilty to the production of child pornography, he still would

7 Carr neither alleges nor points to any evidence that he would have qualified for a

sentence below the mandatory minimum under 18 U.S.C. § 3553(e) or U.S.S.G. § 5K1.1.

have been subject to § 2251(e)’s 15-year mandatory minimum sentence, which

is exactly the sentence he received.

To put it in terms of Lafler’s framework, Carr fails to satisfy Lafler’s first

and third prejudice criteria. See Lafler, 566 U.S. at 164.8 First, he fails to show

“a reasonable probability that the plea offer [he describes] would have been

presented to the court,” Lafler, 566 U.S. at 164, because the government denies

that it would have agreed to a plea offer in which Carr was sentenced to less

than the mandatory minimum for violating § 2251(a). Second, Carr fails to show

a reasonable probability “that the conviction or sentence, or both, under the

offer’s terms would have been less severe than under the judgment and sentence

that in fact were imposed.” Id. Under Carr’s hypothetical plea bargain, he would

have had to plead guilty to the same charge(s) he was convicted of at trial, so

he still would have been subject to the same 15-year mandatory minimum

penalty. Since Carr is already serving the mandatory minimum, he could not

have obtained a lesser sentence by pleading guilty. Because Carr fails to

establish prejudice under Lafler, relief on this ground will be denied.

B. Ground Two: The constitutionality of 18 U.S.C. § 2251(a)

Carr claims that the statute of conviction, 18 U.S.C. § 2251(a), “is

unconstitutional both facially and as applied.” § 2255 Motion at 5; see also

8 The government concedes “it is likely that the Court would have accepted a plea

agreement in this particular case.” Response at 13.

Memorandum at 3. He argues that “[t]he statute does not put citizens on notice

that unknowingly photographing a nude minor who appears to be an adult is a

crime.” Memorandum at 3. He seems to argue that the statute is

unconstitutional because it does not allow for a mistake-of-age defense, thereby

“punish[ing] an innocent mind.” Id. Carr also seems to argue that the statute is

unconstitutional because it “draws an arbitrary line that is not rationally

related to any legitimate penalogical [sic] goal,” such as by “permit[ting]

performers to pose in the nude and in sexually suggestive manners, but … not

allow[ing] for a person to privately take photographs of them.” Id.

To the extent Carr argues that § 2251(a) is unconstitutional (facially or

as applied) because it does not require proof that the defendant knew of the

victim’s age, he is not entitled to relief because that issue was litigated on direct

appeal. “It is long settled that a prisoner is procedurally barred from raising

arguments in a motion to vacate his sentence … that he already raised and that

[the appeals court] rejected in his direct appeal.” Stoufflet v. United States, 757

F.3d 1236, 1239 (11th Cir. 2014) (collecting cases); see also United States v.

Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000). “At least where there has been

no intervening change in controlling law, a claim or issue that was decided

against a defendant on direct appeal may not be the basis for relief in a § 2255

proceeding.” Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012).

On direct appeal, Carr argued “that the statute is unconstitutional

because it does not include knowledge of the victim’s age as an element of the

offense and does not permit him to present ignorance of the victim’s age as a

defense.” USCA Opinion at ECF p. 2. The Eleventh Circuit summarily rejected

that argument, finding it foreclosed by Ruggiero, 791 F.3d at 1284–91. USCA

Opinion at ECF pp. 3–5. Carr fails to point to any “intervening change in

controlling law” that would allow him to re-litigate the constitutionality of §

2251(a) based on the unavailability of a mistake-of-age defense. Rozier, 701

F.3d at 684. Because the matter was litigated and resolved against him on

direct appeal, Carr may not relitigate the issue through a motion to vacate

sentence. Stoufflet, 757 F.3d at 1239; Nyhuis, 211 F.3d at 1343.

To the extent Carr argues that the statute is unconstitutional (facially or

as applied) for other reasons, such a claim is procedurally defaulted because it

could have been raised on direct appeal and Carr did not do so. “Courts have

long and consistently affirmed that a collateral challenge, such as a § 2255

motion, may not be a surrogate for a direct appeal.” Lynn v. United States, 365

F.3d 1225, 1232 (11th Cir. 2004) (citation omitted). “Under the procedural

default rule, a defendant generally must advance an available challenge to a

criminal conviction or sentence on direct appeal,” including constitutional

claims, “or else the defendant is barred from presenting that claim in a §

2255 proceeding.” Id. at 1234 (citations omitted). “A defendant can avoid a

procedural bar only by establishing one of two exceptions to the procedural

default rule.” Id. The first is the cause-and-prejudice exception, under which “a

§ 2255 movant can avoid application of the procedural default bar by ‘show[ing]

cause for not raising the claim of error on direct appeal and actual prejudice

from the alleged error.’” McKay v. United States, 657 F.3d 1190, 1196 (11th Cir.

2011) (quoting Lynn, 365 F.3d at 1234). The other exception is actual innocence,

under which “a movant’s procedural default is excused if he can show that he is

actually innocent either of the crime of conviction or, in the capital sentencing

context, of the sentence itself.” Id. Carr does not allege that he can satisfy either

exception to the procedural default rule. § 2255 Motion at 5–6; Memorandum at

3. As a result, he is not entitled to relief on his claims in Ground Two.

C. Ground Three: Not enforcing subpoenas for M.D. and S.P.

Next, Carr alleges that trial counsel gave ineffective assistance because

he “not only misunderstood the controlling [law], but also failed to adequately

prepare for the strategy selected, thereby ensuring a guilty verdict.” § 2255

Motion at 6; see also Memorandum at 4. Specifically, he states that counsel

“issued subpoenas for various witnesses who would have established the

purported victims represented that they were adults and that they appeared to

be adults.” Memorandum at 4. But, he alleges, counsel failed to ensure the

subpoenas had been served and “when the witnesses did not appear, counsel

did not engage the standard array of procedures: seeking a continuance or a

new trial in order to compel the testimony, introducing a prior proffer, seeking

to have the court enforce the witness’ appearance, and the like.” Id. “Counsel

simply went ahead with the trial, despite the lack of any case,” Carr asserts. Id.

Then, Carr complains that “counsel inexplicably showed a recording in which

[S.P.] ([whom] the government failed to produce a[s] a witness) conceded she

was a minor,” although she “appeared and acted as an adult.” Id. Carr alleges

that “[a]bsent counsel’s concession, the jury would have acquitted Mr. Carr.” Id.

The Court divides this claim into two parts. First is the claim that trial

counsel failed to enforce subpoenas for M.D. and S.P. and pressed ahead with

the trial after they failed to appear. Second is the claim that trial counsel

performed unreasonably by playing an extended video clip of S.P., in which S.P.

allegedly conceded she was a minor. Because the second part overlaps with

Ground Four, it will be addressed with that ground.

1. Counsel’s failure to enforce subpoenas for M.D. and S.P.

Before trial, Carr’s attorney issued subpoenas to M.D. and S.P. (who were

adults by the time of the trial) to testify. See Trial Tr. Vol. II at 48. Neither

woman appeared when Carr’s attorney called them to the witness stand. See id.

The government did not call M.D. or S.P. to testify either.

Carr alleges that counsel failed to ensure proper service of the subpoenas

and that when M.D. and S.P. did not comply, counsel should have sought to

continue the trial so he could bring them in to testify. Carr believes that had

M.D. and S.P. testified, their testimony “would have established [that M.D. and

S.P.] represented that they were adults and that they appeared to be adults.”

Memorandum at 4.

These allegations do not support a finding of ineffective assistance. “The

mere fact that other witnesses might have been available ... is not a sufficient

ground to prove ineffectiveness of counsel.” Waters v. Thomas, 46 F.3d 1506,

1514 (11th Cir. 1995) (citation omitted). “Complaints of uncalled witnesses are

not favored, because the presentation of testimonial evidence is a matter of trial

strategy and because allegations of what a witness would have testified are

largely speculative.” Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.

1978).9 Even if counsel’s failure to call a witness “appears to have been unwise

in retrospect, the decision will be held to have been ineffective assistance only

if it was so patently unreasonable that no competent attorney would have

chosen it.” Dingle v. Sec’y, Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007)

(quotation marks omitted). Additionally, “evidence about the testimony of a

putative witness must generally be presented in the form of actual testimony

by the witness or on affidavit. A defendant cannot simply state that the

testimony would have been favorable; self-serving speculation will not sustain

an ineffective assistance claim.” United States v. Ashimi, 932 F.2d 643, 650 (7th

9 Decisions issued by the former Fifth Circuit Court of Appeals on or before September

30, 1981 are binding in the Eleventh Circuit. Bonner v. City of Prichard, Ala., 661 F.2d 1206,

1207 (11th Cir. 1981).

Cir. 1991); see also Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001)

(“Johnson offers only speculation that the missing witnesses would have been

helpful. This kind of speculation is insufficient to carry the burden of a habeas

corpus petitioner.” (internal quotation marks and citation omitted)).

Carr’s allegation that counsel should have enforced the subpoenas for

M.D. and S.P. because they would have offered favorable testimony is

speculative. Carr offers nothing to support his belief that their testimony would

have been more helpful than harmful. Moreover, Carr alleges that M.D. and

S.P. would have testified that they misrepresented their ages and appeared to

be adults, but such testimony would have been inadmissible anyway. The

Eleventh Circuit has held that knowledge of the minor’s age is not an element

of the crime of producing child pornography and that the Constitution does not

entitle a defendant charged with that crime to present a mistake-of-age defense.

Ruggiero, 791 F.3d at 1284–91; Deverso, 518 F.3d at 1258. Indeed, the Court

ruled before trial that Carr could not raise a mistake-of-age defense based on

circuit precedent. Minute Entry (Crim. Doc. 60). Thus, even if M.D. and S.P.

would have testified that they misrepresented their ages and that they

appeared to be adults, Carr was not prejudiced because such testimony would

have been irrelevant and inadmissible.

Moreover, Carr’s attorney had apparent strategic reasons not to enforce

the subpoenas. For one, “[c]ompetence does not require an attorney to browbeat

… reluctant witness[es] into testifying, especially when the facts suggest that

no amount of persuasion would have succeeded.” Knowles v. Mirzayance, 556

U.S. 111, 125 (2009). Here, there is no sign that M.D. or S.P. would have

willingly testified favorably on Carr’s behalf. For another, M.D.’s and S.P.’s

failure to respond to the subpoenas played into the defense’s hands. Counsel

pointed out in closing argument that M.D. and S.P. failed to respond to the

subpoenas, Trial Tr. Vol. II at 79, and asserted that “they obviously don’t care

about this [case],” id. at 80. Counsel used that to bolster his argument that Carr

did not pressure, coerce, or threaten the girls to create sexually explicit images

because they were willing participants who did so to make money. See id. at 80–

82. Carr’s attorney also seized on the absence of M.D.’s and S.P.’s testimony––

citing the government’s failure to call them––to cast doubt on whether the

government had proven (a) the victims’ identities or (b) whether Carr used,

persuaded, induced, enticed, or coerced them to engage in sexually explicit

conduct for the purpose of creating images of such conduct. Id. at 78–79, 80–81,

85–86. Counsel’s decision to go forward without enforcing the subpoenas for

M.D. and S.P. was “the epitome of a strategic decision,” Waters, 46 F.3d at 1512,

and Carr’s allegations do not show that the decision “was so patently

unreasonable that no competent attorney would have chosen it,” Dingle, 480

F.3d at 1099.

As far as Carr generally alleges that defense counsel “misunderstood the

controlling [law]” and “failed to adequately prepare for the strategy selected,” §

2255 Motion at 6, the record also refutes these claims. The record shows that

defense counsel understood that mistake-of-age was not an available defense to

the charges because he recognized as much at the detention hearing and in

response to the government’s Motion in Limine. Detention Findings at 2;

Response to Mtn. in Limine at 1–2. Defense counsel prepared a trial strategy

that did not depend on a mistake-of-age defense. First, the defense focused on

showing that Carr did not “employ[ ], use[ ], persuade[ ], induce[ ], entice[ ], or

coerce[ ]” M.D. and S.P. 18 U.S.C. § 2251(a). Defense counsel argued that Carr

did not use threats, violence, or intimidation and that the victims were willing

participants. Trial Tr. Vol. I at 73–75; Trial Tr. Vol. II at 80–82. Second, defense

counsel suggested that the government had not proven the victims’ identities

beyond a reasonable doubt (and hence, had not proven that minors were

involved). See Trial Tr. Vol. I at 66–68; Trial Tr. Vol. II at 80–81. Third, defense

counsel suggested that when Carr hired or paid money to M.D. and S.P., it was

not “for the purpose of producing any visual depiction of [sexually explicit]

conduct.” 18 U.S.C. § 2251(a). Instead, counsel implied that Carr’s purpose was

only to do a photo shoot of M.D. and S.P., and the fact that the photo shoots

turned sexually explicit did not prove that such was Carr’s original purpose.

See Trial Tr. Vol. I at 73; Trial Tr. Vol. II at 84. And fourth, the defense

challenged aspects of the investigation, such as Special Agent Deutsch’s

thoroughness and promptness in documenting his interview with Carr. See

Trial Tr. Vol. I at 68–71; Trial Tr. Vol. II at 10–14, 51–52. Carr’s attorney laid

the foundation for these arguments by, for example, eliciting testimony that

there was no evidence Carr had used threats, violence, or intimidation with

M.D. or S.P., Trial Tr. Vol. I at 73–75, and that there was no DNA confirmation

of M.D.’s and S.P.’s identities, even though four other people were using S.P.’s

Social Security Number and date of birth, id. at 66–68. The jury was free to

reject the defense’s theories and it did. But the Court cannot say that “no

competent counsel” would have chosen these lines of defense, Khan v. United

States, 928 F.3d 1264, 1272 (11th Cir. 2019) (citing Chandler v. United States,

218 F.3d 1305, 1314–15 (11th Cir. 2000) (en banc)), and the record reflects that

Carr’s attorney was well prepared to pursue them. Because Carr’s allegations,

together with the record, fail to show that his attorney’s performance was

deficient or prejudicial under Strickland, relief on this claim will be denied.

2. Playing the extended video of S.P.

Carr also alleges that his attorney gave ineffective assistance by playing

an extended video clip showing Carr having sex with S.P. Memorandum at 4.

Because this allegation overlaps with the claims in Ground Four, it will be

addressed along with that ground.

D. Grounds Three and Four: Playing the extended video of S.P.

At trial, the government put into evidence two videos that Carr recorded

of S.P., one being around thirty-two minutes long and the other being less than

four minutes long. See Trial Tr. Vol. I at 140, 142; Gov’t Exs. 66, 67. The

government played only four excerpts (totaling about three to four minutes),

which showed S.P. having sex with Carr. See Trial Tr. Vol. I at 143–44, 153–57.

Defense counsel played an extended version of the same videos during the

defense’s case in chief. See Trial Tr. Vol. II at 18. Carr alleges that S.P. said she

was a minor in one of the videos (which is unclear from the transcript, but the

Court takes Carr’s word for it). Memorandum at 4. After showing the extended

clips, defense counsel elicited testimony from Special Agent Deutsch that there

was no evidence S.P. or M.D. had been forced to participate in their activities

with Carr and that their motivations were to make money. Trial Tr. Vol. II at

19–22. Defense counsel asserted in closing argument that Carr had not coerced,

threatened, or intimidated S.P. or M.D. and that they voluntarily engaged in

sexually explicit activities for money. Id. at 80–82.

Carr alleges that trial counsel performed deficiently by showing the jury

“a recording with the (allegedly) underage woman [S.P.] having sex with Mr.

Carr.” Memorandum at 5; see also § 2255 Motion at 8. He asserts that counsel’s

“inexplicabl[e]” decision to play the extended clip prejudiced him because S.P.

conceded she was a minor and the government otherwise could not have proven

that she was underage. Memorandum at 4, 5. Carr argues that because “neither

[M.D. nor S.P.] was willing nor did they testify,” the “government could not

establish the age or identity of the purported victims.” Id. at 5. According to

Carr, if not for his lawyer “displaying the video and stipulating the age[10], the

government could not have met its burden of proof.” Id. Thus, Carr alleges that

“[c]ounsel’s showing the sex tape was unreasonable since the government

otherwise lacked evidence that a particular photographic subject was

underage.” Id.11

The record affirmatively refutes this claim. Before defense counsel played

the extended videos of S.P., the government had already introduced ample

evidence (independent of the videos) establishing both victims’ ages and

identities. HSI Special Agent Justin Deutsch testified that he interviewed S.P.

and M.D. in person and confirmed their ages through DMV records and birth

certificates. Trial Tr. Vol. I at 32–42. The government introduced and published

redacted copies of their birth certificates and driver’s licenses, which showed

10 Defense counsel never stipulated that the females depicted in the images and videos

introduced at trial were underage. Rather, defense counsel questioned whether the

government had proven that the females depicted in those images were the same M.D. and

S.P. whose birth certificates and DMV records were admitted into evidence. See Trial Tr. Vol.

I at 66–68; Trial Tr. Vol. II at 80–81. By “stipulating the age,” Carr presumably means defense

counsel’s decision to play the extended videos. See Memorandum at 5.

11 Carr also points to “the deliberating jury’s note as to whether Mr. Carr’s belief that the

woman was over 18 constituted a defense to the crime,” which he thinks proves that “without

the stipulation and recording it is reasonably likely the government could neither have

established who the woman was or what her age was.” Id.

that S.P.’s date of birth was November 10, 1995, and M.D.’s date of birth was

January 28, 1997. See id.; see also Gov’t Exs. 1–4A. The driver’s licenses also

included photographs of S.P. and M.D. The government established that the

video and images of S.P. were created on April 12, 2013, meaning she would

have been seventeen years old on that date. Trial Tr. Vol. I at 130, 157.

Likewise, the government established that the images of M.D. were created on

October 27, 2012, meaning she would have been fifteen years old on that date.

Id. at 129–30, 157–58. Special Agent Deutsch added that, having met M.D. and

S.P. in person, he had “no doubt” that the individuals he interviewed were the

same minors whose pictures were in Carr’s residence and who were identified

through DMV records and birth certificates. Id. at 37–38, 41–42, 148, 150, 157.

The jury also heard testimony that, during his consensual interview, Carr

identified photos of S.P. and M.D. Id. at 52–55; Gov’t Exs. 30, 31. And the

government showed the jury some images of S.P. and M.D. that were recovered

from Carr’s devices, allowing the jury to decide for themselves whether they

were the same individuals whose photos and dates of births were in the DMV

records. See Trial Tr. Vol. I at 150–52. Thus, there is not a reasonable

probability the jury would have had a reasonable doubt about the victims’ ages

and identities but for counsel playing an extended video clip in which S.P.

(allegedly) said she was a minor. See Strickland, 466 U.S. at 694.

Further, defense counsel could have made a reasonable strategic decision

to play the full videos of S.P. Part of the defense theory was that Carr did not

“employ[ ], use[ ], persuade[ ], induce[ ], entice[ ], or coerce[ ]” S.P. (or M.D.) “to

engage in … sexually explicit conduct for the purpose of producing any visual

depiction of such conduct.” 18 U.S.C. § 2251(a). Carr argued that S.P. and M.D.

were willing participants who allowed Carr to photograph them (or in S.P.’s

case, to have sex with her) to make money. See Trial Tr. Vol. II at 19–22, 80–

82. A reasonable attorney could have decided that playing the full videos of S.P.

could support that theory. As Carr himself states, the video of S.P. “shows the

alleged woman and Mr. Carr having playful sex,” she “is not visibly underage,”

and she “is far from coerced, and actually seems in control of the events. The

point is it was consensual and appears to be between adults.” Memorandum at

5; see also id. at 4 (“In this same video, the confessed minor appeared and acted

as an adult”). That is exactly why defense counsel would have played the videos:

to show that S.P. was not coerced and appeared to behave like a mature,

voluntary participant. To borrow the government’s description,

Counsel’s choice to publish more of the video evidence was obviously part

of his trial strategy…. The longer the video played, the victim’s

appearance and conduct hammered home the implication that “this

person does not look or act like a child!” This trial strategy is summed up

in this way: the longer the jury observed the post-pubescent female victim

engaging in sex, the more “adult-like,” “professional,” and “experienced”

she appeared, the less sympathy the jury would have for her, the more

empathy the jury would have for Carr, and the more normalized Carr’s

criminal conduct would appear.

Response at 17–18.

Plus, as recounted above, even before defense counsel played the extended

videos, the government had introduced testimony, birth certificates, and DMV

records establishing the ages and identities of S.P. and M.D. And the

government had already played four excerpts of the videos of S.P. Given that,

and considering that Carr was not presenting a mistake-of-age defense anyway,

it did not hurt Carr’s defense to play the extended videos, even if one of them

portrayed S.P. telling Carr she was under 18 years old. Carr’s defense strategy

focused on other elements of the case, such as a lack of coercion. So defense

counsel could have reasonably determined that the potential benefits of playing

the full videos outweighed the risks. And even if that calculation were

unreasonable, Carr fails to show “a reasonable probability that … the factfinder

would have had a reasonable doubt respecting guilt” had counsel not played the

full videos. Strickland, 466 U.S. at 695. Thus, counsel’s performance was

neither deficient nor prejudicial under Strickland, and relief on this claim will

be denied.

III. Conclusion

Having reviewed each of Carr’s claims and finding that none warrants

relief under 28 U.S.C. § 2255, it is ORDERED:

1. Petitioner Thomas Leslie Carr’s Motion Under 28 U.S.C. § 2255 to Vacate,

Set Aside, or Correct Sentence (Civ. Doc. 1) is DENIED.

2. The Clerk will enter judgment for the United States and against Carr,

and close the file.

3. If Carr appeals the denial of the petition, the Court denies a certificate of

appealability (COA).'!2 Because this Court has determined that a COA is

not warranted, the Clerk will terminate from the pending motions report

any motion to proceed on appeal as a pauper that may be filed in this

case. Such termination will serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida this 25th day of

October, 2022.

Je . [) \\ "

(I fran), far

BRIAN/J. DAVIS

United States District Judge

le 19

Copies:

Counsel of record

Petitioner

RB This Court should issue a COA only if a petitioner makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial showing,

Petitioner “must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274,

282 (2004) (quoting Slack v. McDaniel, 529 U.S. 4738, 484 (2000)), or that “the issues presented

were ‘adequate to deserve encouragement to proceed further,” Miller-Kl v. Cockrell, 537 U.S.

322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Upon due

consideration, this Court finds that a COA is not warranted.

32