The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT FOR RESPONDENT
On January 28, 2010, Petitioner Walter M. Schales, proceeding in pro per, timely filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.
By Second Superseding Indictment, Petitioner was charged in Count One with receipt or distribution of material involving the sexual exploitation of minors in violation of 18 U.S.C. § 2252(a)(2);*fn1 in Count Two with possession of material involving the sexual exploitation of minors in violation of 18 U.S.C. § 2252(a)(4)(B); and in Count Three with production of obscene visual representation of the sexual abuse of children in violation of 18 U.S.C. § 1466A(a)(1).*fn2
Petitioner, a former resident of Armona, California, came to the attention of law enforcement on July 17, 2005, when he approached a 14 year-old girl from behind at a Wal-Mart store in Hanford, California. A witness saw Petitioner hold a digital camera underneath the girl's mini-skirt and take a photograph. the witness confronted Petitioner and contacted a store security employee. The store employee in turn contacted the Hanford Police Department which cited Petitioner for annoying children, seized his camera, and referred the case to the Kings County District Attorney's Office. Although Petitioner had attempted to delete the images that he had taken of the 14-year old girl at the Wal-Mart store, they were recovered during a forensic examination of the camera's media card. Based in part on information recovered during that examination, a search warrant was issued for Petitioner's residence. When the search warrant was executed on October 4, 2005, law enforcement agents located an immense quantity of child pornography and obscene depictions of minors engaged in sexually explicit conduct. Officers seized one computer, some peripheral devices, several compact discs, digital video discs, VHS videotapes, 8mm tapes, digital cameras, a video camera, printed images of naked females, and pornographic magazines. When investigators reviewed the seized material, they discovered that Petitioner had taken a large quantity of digital still and video images of minors to whom he had access in public, near his residence, and at places where he ostensibly had been working. Petitioner also had obtained thousands of images of child pornography from the internet, most, if not all, of which were also obscene. He transferred images from his digital cameras to his computer and applied one or more photo editing software programs to the images. He used the software to manipulate images of himself (some of which were sexually explicit) and the obscene and sexually explicit images of other minors he had obtained from the internet. Through this process, he produced obscene visual representations of minors engaged in sexually explicit conduct. Petitioner photographed approximately ten local minor females ranging in age from approximately age six to age seventeen, and he produced approximately 15-100 obscene images of each of these victims.
Petitioner was convicted by jury verdict of all three counts. Petitioner was sentenced to to a term of imprisonment of 210 months (Counts 1 and 3 for a term of 210 months to run concurrent with Count's 2 term of 120 months). Petitioner appealed his conviction and sentence. The Ninth Circuit affirmed Petitioner's conviction of Count 3, but remanded the case to vacate either his conviction on Count 1 or Count 2 on the ground of Double Jeopardy. United States v. Schales, 546 F.3d 965 (9th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1397 (2009). On remand, Respondent dismissed Count 2. On January 20, 2009, Petitioner was sentenced to a term of 210 months concurrent on on Counts 1 and 3. Petitioner did not file a notice of appeal.
Petitioner asserts three grounds for relief.
Ground One is captioned "double jeopardy" and asserts:
"Is morphing under definition of pornography overbroad and vague."
Petitioner confuses legal concepts. Under the Double Jeopardy Clause of the Constitution, no person shall be twice put in jeopardy of life or limb for the same offense. The Double Jeopardy Clause has been interpreted to contain two prongs.
First, double jeopardy prohibits successive prosecution of the same offense. Blockburger v. United States, 284 U.S. 299, 304 (1932). Here, there has been no successive prosecution for the same offense. Second, double jeopardy prohibits multiple punishment for the same offense. United States v. Ursery, 518 U.S. 267, 273 (1996). "The Double Jeopardy Clause is implicated when a defendant has been convicted under two different criminal statutes and both statutes prohibit the same offense or one offense is a lesser-included offense of the other." United States v. Schales, supra, 546 F.3d at 977. The elements of a violation of Section 2252(a)(2) are:
(1) the defendant knowingly received or distributed;
(2) any visual depiction that had been mailed, shipped, or transported in interstate or foreign commerce;
(3) by any means, including by computer;
(4) the producing of such visual depiction involved the use of a minor engaging in ...