United States District Court, D. Maine
TIMOTHY S. KLIMAS, Petitioner,
UNITED STATES OF AMERICA, Respondent
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. NIVISON U.S. MAGISTRATE JUDGE.
action, Petitioner Timothy S. Klimas moves, pursuant to 28
U.S.C. § 2255, to vacate, set aside or correct his
sentence. (Motion, ECF No. 78.) In July 2016, following a
guilty plea, Petitioner was convicted of sexual exploitation
of children, 18 U.S.C. § 2251(a), (e), and
transportation of child pornography, 18 U.S.C. §
2252A(a)(1), (b)(1); the Court sentenced Petitioner to 600
months in prison. (Judgment, ECF No. 74 at 1-2.) Petitioner
did not appeal from the conviction or the sentence.
essentially contends that Title 18 U.S.C. § 2251(a)
constitutes an unconstitutional exercise of Congressional
power under the Commerce Clause of the United States
Constitution, because the statute regulates activity that
lacks a nexus with interstate commerce; Petitioner apparently
also alleges his activities did not have a substantial effect
on interstate commerce. (Motion at 4; Attachment, ECF No.
78-1 at 5-7.) Petitioner asserts a related claim of
ineffective assistance for counsel's alleged failure to
explain the appeals process to him. (Motion at 5.)
a review of Petitioner's motion and the Government's
request for dismissal, I recommend that the Court grant the
Government's request, and dismiss Petitioner's
person may move to vacate his or her sentence on one of four
different grounds: (1) “that the sentence was imposed
in violation of the Constitution or laws of the United
States”; (2) “that the court was without
jurisdiction” to impose its sentence; (3) “that
the sentence was in excess of the maximum authorized by
law”; or (4) that the sentence “is otherwise
subject to collateral attack.” 28 U.S.C. §
2255(a); see Knight v. United States, 37 F.3d 769,
772 (1st Cir. 1994).
burden is on the section 2255 petitioner to establish by a
preponderance of the evidence that he or she is entitled to
section 2255 relief. David v. United States, 134
F.3d 470, 474 (1st Cir. 1998); United States v.
DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978).
collateral challenge is not a substitute for an appeal.
United States v. Frady, 456 U.S. 152, 165 (1982);
Berthoff v. United States, 308 F.3d 124, 127 (1st
Cir. 2002). “Accordingly, a defendant's failure to
raise a claim in a timely manner at trial or on appeal
constitutes a procedural default that bars collateral review,
unless the defendant can demonstrate cause for the failure
and prejudice or actual innocence.” Berthoff,
308 F.3d at 127-28. Procedural default is an affirmative
defense. Sotirion v. United States, 617 F.3d 27, 32
(1st Cir. 2010).
allegation of ineffective assistance of counsel can excuse a
procedural default, but only if the petitioner demonstrates
both that counsel's representation fell below an
objective standard of reasonableness and that counsel's
deficient performance prejudiced the petitioner's
defense. Turner v. United States, 699 F.3d 578, 584
(1st Cir. 2012) (citing Strickland v. Washington,
466 U.S. 668, 688 (1984)). A district court reviewing a claim
of ineffective assistance of counsel need not address both
prongs of the test because a failure to meet either prong
will undermine the claim. Strickland, 466 U.S. at
697. If a petitioner's “claims fail on the merits,
his related claims that counsel rendered ineffective
assistance in failing to press the claims at trial or on
appeal must also fail.” Tse v. United States,
290 F.3d 462, 465 (1st Cir. 2002) (per curiam).
Claim and Analysis
Petitioner challenges both statutes of conviction, i.e., 18
U.S.C. § 2251(a) and 18 U.S.C. § 2252A, his
challenge appears to focus on the production, rather than the
transportation, of child pornography. (Attachment, ECF No.
78-1 at 5-7.) Petitioner's claim, therefore, necessarily
relates solely to section 2251(a).
contends the Court lacked subject matter jurisdiction over
the criminal charges. (Attachment at 10.) A Commerce Clause
challenge does not implicate the Court's subject matter
jurisdiction. See United States v. Sealed Appellant,
526 F.3d 241, 243 & n.4 (5th Cir. 2008) (quoting
United States v. Martin, 147 F.3d 529, 531-32 (7th
Cir. 1998)) (noting that a section 2251(a) interstate
commerce nexus argument “‘is not jurisdictional
in the sense that it affects a court's subject matter
jurisdiction, i.e., a court's constitutional or
statutory power to adjudicate a case . . . .'”).
addition, the First Circuit has rejected a Commerce Clause
challenge to 18 U.S.C. § 2251(a). See United States
v. Poulin, 631 F.3d 17, 20-22 (1st Cir. 2011). In
Poulin, the Court noted that in United States v.