The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, )
)
Plaintiff/Respondent, )
) Criminal Case No. CR-17-00075-RAW
v. )
) Civil Case No. CV-21-00216-RAW
FLOYD PRESTON MILLER, III, )
)
Defendant/Movant. )
ORDER
Now before the court is the pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or
correct sentence (“§ 2255 motion”) filed by Defendant Floyd Preston Miller, III. [CR Doc. 83;
CV Doc. 1]. The Government filed a response in opposition to Defendant’s § 2255 motion. [CR
Doc. 88]. Defendant filed a supplement to his § 2255 motion. [CR Doc. 89]. Defendant also
filed a reply. [CR Doc. 90].
The Tenth Circuit Court of Appeals, in an order and judgment filed on July 29, 2020,
provided the following summary of this case:
In November 2015, Miller—who at the time was 36 years old—“met” a girl in an
internet chat room and eventually exchanged sexual messages and pictures with
her. Two weeks later, the girl informed Miller that she was 15 years old. In the
next several months, Miller sent the girl pictures of his penis and videos of him
touching himself. He also asked her to send him pictures of her genitals and
videos of her masturbating. She complied.
Miller was eventually charged with violating Title 18, U.S. Code, section 2422(b).
This crime includes four elements: (1) use of a means of interstate commerce; to
(2) knowingly; (3) persuade, induce, entice, or coerce a minor; to (4) engage in
sexual activity for which any person can be charged with a crime. 18 U.S.C. §
2422(b). According to the indictment, the “crime[s]” with which Miller could
have been charged included Title 21, Oklahoma Statutes, section 1123 for lewd or
indecent proposals or acts with a child; and Title 21, Oklahoma Statutes, section
1021.2 for procuring participation of a minor in child pornography.
In its instructions to the jury at trial, the district court discussed relevant criminal
offenses that could satisfy the fourth element of Title 18, U.S. Code, section
2422(b). It first discussed the two Oklahoma statutes listed in the indictment.
The court instructed the jury that Title 21, Oklahoma Statutes, section 1021.1
makes it a crime to “procure or cause the participation of any minor . . . in any
child pornography.” ROA at 27. It also noted that Title 21, Oklahoma Statutes,
section 1123(A)(5)(c) makes it a crime to “cause, expose, force or require a child
to look upon the body or private parts of another person.” Id.
The court then discussed two federal statutes—not listed in the indictment—that
could satisfy the fourth element of Title 18, U.S. Code, section 2422(b). It
instructed the jury that Title 18, U.S. Code, section 2427 makes it a crime to
produce child pornography. Id. at 27–28. It then noted that Title 18, U.S. Code,
section 2251(a) makes it a crime to “employ, use, persuade, induce, or entice any
minor to engage in sexually explicit conduct for the purpose of producing [a]
visual depiction of such conduct.” Id. at 28.
The jury convicted Miller for violating section 2422(b).
United States v. Miller, 822 Fed.Appx. 777, 778 (10th Cir. July 29, 2020) (unpublished). [CR
Doc. 81]. Defendant was represented by two attorneys at trial: William P. Widell, Jr., Assistant
Federal Public Defender, and Meredith Curnutte, pro bono counsel. [CR Docs. 42 and 44].
The United States Probation Office prepared a presentence investigation report (“PSR”).
The PSR noted that the minimum term of imprisonment on the count was 10 years and the
maximum term was life. PSR at ¶ 45. The PSR further noted that, based upon a total offense
level of 36 and a criminal history category of I, the guideline imprisonment range was 188
months to 235 months. Id. at ¶ 46. Neither party objected to the PSR. Counsel for Defendant
filed a motion for variance, which the Government opposed. [CR Docs. 53 and 54]. The
Government urged the court to sentence Defendant “to a sentence within [the] advisory guideline
range and avoid unwarranted sentencing disparities and sentence him to the high end of that
range.” [CR Doc. 54 at 5].
Defendant appeared with counsel for sentencing on November 20, 2018. [CR Doc. 60].
There were no objections to the PSR, and the court found the PSR would form the factual basis
for the court’s sentence. [CR Doc. 60 at 1; CR Doc. 71 at 2]. Counsel persuasively argued the
motion for variance at the sentencing hearing, and the undersigned granted the motion in part.
[CR Doc. 71 at 21]. Defendant was ultimately sentenced to a term of 164 months of
imprisonment. [CR Doc. 60 at 1]. Judgment was entered on November 30, 2018. [CR Doc. 61].
A notice of appeal was filed on December 7, 2018. [CR Doc. 64].
Defendant asserted on appeal that the “jury instruction constructively amended his
indictment by describing the two federal statutes, in addition to the two Oklahoma statutes listed
in the indictment, when discussing whether [Defendant]’s conduct was ‘criminal.’” Miller, 822
Fed.Appx. at 778. The alleged constructive amendment, according to the Defendant, “expanded
the basis for which he could be convicted at the close of trial, and thus denied him the
opportunity to present a defense.” Id. The Circuit, however, held that the constructive
amendment claim did not warrant reversal, explaining that “[e]ven assuming the trial court’s jury
instruction constructively amended the original indictment, [Defendant] has not shown it affected
his substantial rights.” Id. at 779. The Circuit noted that, “[b]ecause [Defendant] cannot show
how his conceded facts apply differently to the federal statutes than they do to the Oklahoma
variants, he has not established that the federal statutes mentioned in the contested jury
instructions broadened his chances of conviction.” Id. at 780. The district court’s judgment was
affirmed and Defendant’s conviction was upheld. Id.
Defendant asserts four grounds within his timely § 2255 motion. Defendant claims in
Ground One that “[h]e could not have been charged with a crime in Oklahoma.” [CR Doc. 83 at
4]. In Ground Two, Defendant contends “[t]he indictment is vague and creates an opportunity
for double jeopardy prosecutions.” Id. at 5. In Ground Three, Defendant sets forth claims of
ineffective assistance of counsel. Id. at 6-7, 14. In Ground Four, Defendant alleges that “the
court broadened the charges and attempted to correct the mistakes made in Ground Two, herein,”
and that the “Tenth Circuit failed to follow Supreme Court precedent when it examined the
broadening of the charge by the court in its instructions.” Id. at 8.
Ground One
Defendant argues in Ground One that “[t]here was no person who lived in Oklahoma who
was a victim of what transpired between Nevada resident [victim] and the [Defendant].” [CR
Doc. 83 at 4]. Defendant alleges in part that “no one in Oklahoma suffered harm because of
[Defendant]’s messages via internet to a person in Nevada,” that the “alleged victim’s mother
contacted Las Vegas police (not Oklahoma),” and that the “alleged victim had no contact with
Oklahoma.” Id. Defendant ultimately concludes that he could not have been charged with a
crime in Oklahoma.
Defendant cites no authority in direct support of his argument, and the Government does
not address the merits. Instead, the Government contends that, because Ground One was not
raised on direct appeal, the ground is procedurally barred. [CR Doc. 88 at 7]. The court agrees.
“A § 2255 motion is not available to test the legality of a matter which should have been raised
on direct appeal.” United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996) (citing United States v.
Warner, 23 F.3d 287, 291 (10th Cir. 1994)). “When a defendant fails to raise an issue on direct
appeal, he is barred from raising the issue in a § 2255 proceeding, unless he establishes either
cause excusing the procedural default and prejudice resulting from the error or a fundamental
miscarriage of justice if the claim is not considered.” Id. Defendant has failed to establish cause
and prejudice sufficient to overcome the procedural default rule. Moreover, Defendant has failed
to demonstrate actual innocence, meaning he has failed to support a claim for miscarriage of
justice.
Defendant’s Ground One also fails on the merits. The court is mindful that Defendant
was convicted for violating 18 U.S.C. § 2422(b). The Tenth Circuit has previously noted that
“[c]oercion and enticement in violation of 18 U.S.C. § 2422 is a continuing offense under
18 U.S.C. § 3237 . . . .” See United States v. Byrne, 171 F.3d 1231, 1235 n. 2 (10th Cir. 1999).
Section 3237(a) provides, in relevant part, that “any offense . . . begun in one district and
completed in another, or committed in more than one district, may be inquired of and prosecuted
in any district in which such offense was begun, continued, or completed.” 18 U.S.C. § 3237(a)
(emphasis added); see also United States v. Boyer, Criminal No. 4:08cr1DPJ-JCS, 2008 WL
4104482, at *1 (S.D. Miss. Aug. 28, 2008) (“[T]he Court agrees with the Government’s
contention that venue for a charge under Section 2422(b) can exist in more than one district
pursuant to 18 U.S.C. § 3237(a) . . . .”); United States v. Wohlman, No. 09-CR-47-LRR, 2009
WL 3415796, at *1 (N.D. Iowa Oct. 22, 2009) (concluding that venue for a charge under
Section 2422(b) was proper in the Northern District of Iowa because defendant was in the district
when he initiated internet conversations with agent).
Ground Two
Defendant claims in Ground Two that “[t]he indictment is vague and creates an
opportunity for double jeopardy prosecutions.” Id. at 5. Defendant notes that the indictment
relied upon two Oklahoma statutes to support the Government’s charge, and he now complains
that it did not single out any particular subsection(s). Id. The Government does not address the
merits. The Government contends Ground Two is procedurally barred for not being raised on
direct appeal, and again, the court agrees.
Still, Defendant’s Ground Two also fails on the merits. “An indictment is sufficient if it
sets forth the elements of the offense charged, puts the defendant on fair notice of the charges
against which he must defend, and enables the defendant to assert a double jeopardy defense.”
United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997). Defendant was indicted for
violating 18 U.S.C. § 2422(b). The crime includes four elements: (1) use of a means of
interstate commerce; to (2) knowingly; (3) persuade, induce, entice, or coerce a minor; to (4)
engage in sexual activity for which any person can be charged with a crime. The indictment
showed the crimes with which Defendant could have been charged included two Oklahoma
criminal statutes, more particularly 21 O.S. § 1123, for lewd or indecent proposals or acts with a
child, and 21 O.S. § 1021.2, for procuring participation of a minor in child pornography.
Defendant now claims the indictment is vague because it does not cite specific
subsections of the underlying criminal statutes. He cites no specific authority in support of his
arguments. In a well-reasoned order, a similar argument relating to underlying Kansas criminal
statutes was rejected by a Kansas district court. See United States v. Williamson, Criminal
Action No. 13-20011-01-KHV, 2020 WL 1433492, at *2-3 (D. Kan. Mar. 24, 2020). Like the
defendant in Williamson, Defendant in the instant case has not alleged sufficient facts to
establish a lack of specificity in the indictment prejudiced his defense. And, as noted by Judge
Vratil in Williamson, the trial record in the case at hand affords Defendant adequate specificity to
raise a double jeopardy defense to the extent that a future prosecution is theoretically possible.
Id. at *3.
Ground Three
Defendant raises ineffective assistance of counsel claims in Ground Three. First,
Defendant asserts that his counsel was ineffective, having “failed to argue the improper
inclusions that [Defendant] could be prosecuted under Oklahoma Title 21, Sections 1021.2 and
1123 without a corpus delecti.” [CR Doc. 83 at 6]. Defendant claims “[i]f counsel had prepared,
he would have known a victim who suffered in Oklahoma was necessary,” and that “[t]he crime
occurred to a victim in Nevada and case was investigated by Las Vegas police.” Id. In addition,
Defendant claims counsel “ought to have [subpoenaed] a qualified witness employed by Omegle
to describe the procedures Omegle employees [sic] to segregate minors and adult users.” Id. at
7.
The Government claims in response that Defendant cannot establish ineffective
assistance of counsel. [CR Doc. 88 at 9]. The Government describes Defendant’s first claim as
a “conclusory allegation of ineffectiveness, which is unsupported by either fact or legal
authority” and “insufficient to establish ineffective assistance.” Id. at 11. The Government
points to the indictment and trial transcript, asserting that “[a]t the time of the offense of
conviction, Defendant was a resident within the confines of the eastern judicial district of
Oklahoma,” and thus “jurisdiction and subsequent prosecution before the district court was
proper.” Id. The Government contends that Mr. Widell and Ms. Curnette “were aware the ‘case’
had been investigated by Las Vegas police,” and that the Las Vegas detective was cross-
examined by counsel at trial. Id. at 11-12. The Government also points to 18 U.S.C. § 2422(b),
noting that “[t]he jury found the facts presented established Defendant had used a means of
interstate commerce—his computer—to knowingly persuade, induce, entice or coerce a minor to
engage in sexual activity.” Id. at 12.
As to Defendant’s second claim (that counsel should have subpoenaed a qualified witness
employed by Omegle to potentially discredit the victim), the Government reminds the court that
“[t]he inner-workings of the Omegle application were not an issue on appeal,” and “therefore
any such claim is procedurally barred here.” Id. The Government also contends that inasmuch
as Defendant is alleging either of his attorneys were ineffective, the effort is without merit. Id.
The Government notes that “[a]t the trial level, it was established the charged conduct occurred
on the Kik application, not on the Omegle application,” and further, that “there was extensive
testimony from a number of witnesses regarding the Omegle matching process sufficient to
establish” how the website did not segregate minors and adult users. Id. The Government
alleges that “[t]he record in this case clearly establishes Mr. Widell and Ms. Curnette acted in a
reasonable manner,” and that “choosing to forego calling an expert on information technology to
potentially discredit the victim” was a professionally reasonable decision. Id. at 12-13.
The Sixth Amendment gives criminal defendants the right to effective assistance of
counsel, and claims of ineffective assistance of counsel are governed by the familiar two-part test
announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Under the Strickland v. Washington standard, Defendant must demonstrate that (1) the
representation was deficient because it fell below an objective standard of reasonableness under
prevailing professional norms; and (2) the deficient performance prejudiced the defense. Id., 466
U.S. at 687. Regarding the first prong, the Strickland Court provided the following guidance:
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable. A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.
Id. at 689 (internal citation omitted). With respect to the second prong, the Supreme Court
explained a defendant “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. This
court “may address the performance and prejudice components in any order, but need not
address both if [Defendant] fails to make a sufficient showing of one.” Foster v. Ward, 182 F.3d
1177, 1184 (10th Cir. 1999). “Surmounting Strickland’s high bar is never an easy task.” Padilla
v. Kentucky, 599 U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). “Strickland does not
guarantee perfect representation, only a reasonably competent attorney.” Harrington v. Richter,
562 U.S. 86, 110 (2011) (citations and internal quotation marks omitted).
The victim was 16 years old when she testified at trial. [CR Doc. 79 at 28]. At that time,
she was living with her parents, two sisters, one brother and her grandmother in Las Vegas,
Nevada. Id. at 29. She testified that she was 14 years old when she met Defendant on Omegle, a
website. Id. at 28-35. She claimed she did not fill out forms or sign up for Omegle, but thought
she may have checked a box stating she was 15 when she entered the website. Id. at 30-32. At
some point while chatting with Defendant on Omegle, the victim was asked if she wanted to go
to Kik to keep the conversation going. Id. at 35. Defendant, according to the victim, explained
how to set up a Kik account. Id. at 35-36. The victim set up a Kik account, and Defendant and
victim moved the conversation from Omegle to Kik. Id. at 34-35. Later conversations between
Defendant and the victim were also on Kik. Defendant and the victim talked about different
things, including movies, video games, and music. Id. at 36-37. She also testified that she talked
about school with Defendant, such as “how [her] classes were going and if [she] was bored in
class and stuff like that.” Id. at 37. She testified that she talked with Defendant about history
being her favorite class. Id. at 37-38. She was asked if she ever talked to Defendant via Kik on
her phone at school, and whether she sent Defendant videos while she was at school, and she
answered both questions in the affirmative. Id. at 46. The victim was specifically asked: “What
kind of videos did you send this person while you were at school?” Id. She replied, “Just like a
picture of me waving hi.” Id. The victim exchanged sexual messages and pictures with
Defendant when she was not in school, and the victim told Defendant that she was 15 years old
(though she was actually 14). Id. at 38-40, 42-45. Defendant sent the victim pictures of his
penis and videos of him touching himself. Id. at 44, 109. Defendant also asked her to send him
pictures of her genitals and videos of her masturbating, and she complied. Id. at 48-49.
At trial, Detective Mark Hoyt testified that he was assigned to the Las Vegas Internet
Crimes Against Children Task Force, and that he was “a deputized marshal when it comes to
federal cases . . . and state cases involving internet crimes against children and human
trafficking.” Id. at 69-70. Detective Hoyt interviewed the victim’s mother and the victim and
conducted a forensic examination on the victim’s cell phone. Id. at 71-74, 82. The authorities
were able to determine the identity of the Defendant even though he used a VPN, or virtual
private network, that masked his IP address. Id. at 82-85, 110-11. Detective Hoyt testified that
he traveled to Oklahoma to conduct an interview with Defendant. Id. at 88, 98-99. Videos from
the victim’s phone were played for the jury.
Defendant also testified at trial. He explained that he used Omegle “to meet and chat and
talk with like-minded people about sex.” Id. at 132. Defendant stated at trial that Omegle
segregated adult and minor users (the users type in their interests and check a box). Id. at 132-
33. His attorney asked, “is it possible to be connected with somebody under 18 if you’ve
checked 18 plus?” and Defendant replied, “No.” Id. at 134. Defendant was also asked: “While
you were on Omegle did you have any reason to believe that [the victim] was under the age of
18?” Id. at 140. He replied, “No.” Id. He acknowledged that the conversation was moved from
Omegle to Kik. Id. at 139-141. Defendant was asked, when exchanging videos initially on Kik,
“was there anything about [the victim’s] physical appearances that led you to believe that she
had to be under the age of 18?” and he replied, “No.” Id. at 141. His testimony indicated that
the victim at some point told him she was 15 years old, and that he told the FBI and Detective
Hoyt during the investigation that the victim stated her age was 15. Id. at 143-44. His attorney
asked, “Were you concerned that she was actually 15?” and Defendant replied, “No.” Id. at 144.
He claimed that he believed the victim’s statement about her age was part of adult role-playing,
or more particularly, “that she was in a role for high school.” [CR Doc. 79 at 144; CR Doc. 90 at
4]. He further claimed that he did not know her actual age until early February (a few months
after meeting on Omegle) when the victim’s sister had taken possession of the victim’s phone
and informed him that she was 14. [CR Doc. 79 at 144].
Still, FBI Special Agent Jonathan Clark testified that he interviewed the Defendant twice.
He was asked the following question about his first interview with the Defendant: “Did
[Defendant] discuss with you Omegle and believing that this woman was 18-years-old at any
time?” Id. at 168. Special Agent Clark responded, “He did not.” Id. He was also asked the
following question about his second interview with the Defendant: “And can you tell me during
that interview was there any discussion about him believing that this person that he was talking
to was 18-years-old?” Id. Special Agent Clerk replied, “No. He told me that she was 15.” Id.
Moreover, Detective Hoyt was specifically asked, “During the course of the examination of [the
victim]’s phone, did you find any texts that she had sent that contained videos of her in a
classroom waving?” Id. at 95-96. Detective Hoyt replied, “Yes, I did.” Id. at 96. Detective
Hoyt’s testimony and the evidence from the phone, along with the victim’s testimony that she
occasionally communicated with Defendant while in class, and Special Agent Clark’s testimony
about Defendant’s interviews, undermine Defendant’s claims at trial that he thought the victim
was over 18 years of age.
Clearly, Defendant’s first allegation of ineffectiveness is conclusory, and unsupported by
either fact or legal authority. As explained above, venue for a charge under Section 2422(b) was
proper in this court because Defendant was in this district when he was communicating with the
victim. As to Defendant’s second ineffective assistance claim, Defendant has failed to show that
counsel was deficient for failing to call an expert regarding the Omegle matching process. As
noted by the Government, it was established at trial that the charged conduct occurred on the Kik
application, not on the Omegle application. Further, Defendant’s speculation that an expert
witness would have “put [the victim]’s credibility into question” is not sufficient to establish
ineffective assistance of counsel.
Defendant has not established that his counsel’s performance fell below an objective
standard of reasonableness. He has also failed to show that, but for counsel’s alleged errors, the
result of the proceeding would have been different. His claims of ineffective assistance of
counsel fail both prongs of the Strickland standard and must be denied.
Ground Four
Defendant argues in Ground Four that “[t]he court broadened the charges and attempted
to correct the mistakes made in Ground Two, herein,” and that “[t]he Tenth Circuit failed to
follow Supreme Court precedent when it examined the broadening of the charge by the court in
its instructions.” [CR Doc. 83 at 8]. Defendant contends that “[i]t was likely a jury was
convinced to deliberate on the four unconstitutional charges and, perhaps, not on that of the
indictment as it was returned by the grand jury.” Id. at 15.
As noted by the Government, Defendant filed a direct appeal, and “Defendant’s fourth
claim is the very claim litigated before the Tenth Circuit and resolved adversely against him.”
[CR Doc. 88 at 7]. “Absent an intervening change in the law of a circuit, issues disposed of on
direct appeal generally will not be considered on a collateral attack by a motion pursuant to
§ 2255.” United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (citing United States v.
Nolan, 571 F.2d 528, 530 (10th Cir. 1978)). Defendant does not identify any intervening change
in law since his direct appeal was decided. His request for relief is denied.
A certificate of appealability may issue only if Defendant has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court denies a
§ 2255 motion on procedural grounds without reaching the merits of a defendant’s claims, a
certificate of appealability should issue when a defendant “shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a district court denies a
§ 2255 motion on the merits, a defendant “must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.” Id. Upon
consideration, this court finds that the standard has not been satisfied. This court hereby declines
to issue a certificate of appealability.
Defendant’s motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence [CR
Doc. 83; CV Doc. 1], as supplemented [CR Doc. 89], is hereby DENIED.1 Pursuant to Rule
11(a) of the Rules Governing Section 2255 Proceedings, this court hereby declines to issue a
certificate of appealability.
It is so ordered this 15th day of December, 2023.
__________________________________________
THE HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA
1 The motion, files and records of this case conclusively show that Defendant is entitled to
no relief. Thus, no evidentiary hearing was held.