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Civil No. 13-00039-CV-W-DGK
Criminal No. 09-00050-01-CR-W-DGK








Pending before the Court is Movant Randal Jennings’ (“Movant” or “Jennings”) pro se

Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 1). The Court

has carefully reviewed this motion, the Government’s response (Doc. 6), and the Movant’s reply

(Doc. 10), and for the reasons discussed below, the motion is DENIED.


On February 5, 2009, a federal grand jury returned an thirteen count indictment charging

Jennings with four counts of commercial sex trafficking of a child; two counts of obtaining a

child for the production of child pornography; two counts of inducing a child to engage in

sexually explicit conduct for the production of child pornography; three counts of transporting a

child in interstate commerce for prostitution; and two counts of publishing a notice of images

that involved the sexual exploitation of a child, in violation of 18 U.S.C. §§ 1591, 2251, and

2423(a) and (e), respectively (Crim. Doc. 4).

Jennings’ indictment charged that from October 1, 2007, to and including, January 29,

2009, in the Western District of Missouri and elsewhere, Randall Jennings knowingly recruited,

1 Much of this background is taken from the Government’s brief (Doc. 6).

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enticed, harbored, transported, provided, and obtained minors to engage in sex acts for

commercial benefit.

On July 16, 2009, Jennings waived his indictment, entered a guilty plea to a negotiated

information, and waived his right to a new indictment. Jennings then pled guilty, through a

negotiated plea agreement, to a one-count information charging him with commercial sex

trafficking of children, in violation of 18 U.S.C. §§ 1591(a), (b)(2), and 1594(a) (Crim. Docs. 30,

31, 32, 33, 36).

On October 6, 2010, the Court imposed a sentence of 262 months’ imprisonment, to be

followed by a fifteen year term of supervised release term (Crim. Docs. 61, 62, 75). Although

Jennings’ plea agreement contained a waiver of his right to appeal, on November 19, 2010,

Jennings filed a notice of appeal, challenging his sentence (Crim. Doc. 66).

On December 2, 2011, the Eighth Circuit dismissed Jennings’ appeal. United States v.

Jennings, 662 F.3d 988 (8th Cir. 2011). On April 19, 2012, Jennings petitioned the United States

Supreme Court for a writ of certiorari, which it denied on May 16, 2012. Jennings v. United

States, 132 S. Ct. 2407 (2012). On January 4, 2013, Jennings filed a pro se motion to vacate, set

aside, or correct his sentence under 28 U.S.C. § 2255 (Civ. Doc. 1).


Section 2255


Title 28, section 2255 allows a district court to “vacate, set aside or correct [a] sentence”

which “the court was without jurisdiction to impose . . . or . . . was in excess of the maximum

authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Movants

are entitled to a hearing “[u]nless the motion and the files and records of the case conclusively

show that the prisoner is entitled to no relief . . . .” Id. at 2255(b).

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Issues Not Cognizable under § 2255

“A motion under § 2255 is not a substitute for a direct appeal, and is not the proper way

to complain about simple trial errors.” Anderson v. United States, 25 F.3d 704, 706 (8th Cir.

1994) (citations omitted). Moreover, where a movant does not bring a claim on direct appeal, he

is barred from raising the claim in a § 2255 proceeding unless he can establish cause for the

procedural default and actual prejudice or that he is actually innocent. United States v. Bousley,

523 U.S. 614, 622 (1998).


Ineffective Assistance of Counsel

The Sixth Amendment right to counsel entitles a criminal defendant to effective

assistance of counsel. In Strickland v. Washington, the Supreme Court set forth a two-part test

for deciding a claim of ineffective assistance of counsel. 466 U.S. 668 (1984). In order to

succeed on a claim of ineffective assistance of counsel, a prisoner must first show that

counsel’s performance was deficient . . . [meaning] that counsel
made errors so serious the counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance
prejudiced the defense . . . [meaning] that counsel’s errors were so
serious as to deprive the defendant of a fair trial . . . .

Id. at 687. The court need not decide whether counsel’s performance was inadequate if it finds

that the petitioner was not prejudiced by any claimed deficient performance. Id. at 697.

To satisfy the first prong, a movant must show that counsel’s performance “fell below an

objective standard of reasonableness in that counsel failed to exercise the customary skill and

diligence that a reasonably competent attorney would use under like circumstances.” United

States v. Acty, 77 F.3d 1054, 1059 (8th Cir. 1996). In deciding whether a counsel’s performance

was ineffective, a court must consider the totality of circumstances surrounding the counsel’s

representation. Strickland, 466 U.S. at 690. A court “must indulge a strong presumption that

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counsel’s conduct falls within the wide range of reasonable professional assistance.” Rodela-

Aguilar v. United States, 596 F.3d 457, 461 (8th Cir. 2010) (quoting Strickland, 466 U.S. at 689).

To satisfy the second prong, a movant “must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. Because the alleged deficient performance involves a

plea process, Smith must prove that “there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v.

Lockhart, 474 U.S. 52, 59 (1985). This prejudice inquiry also often involves the court assessing

whether correcting the error would have resulted in a different outcome at a subsequent trial.

Hill, 474 U.S. at 59-60.


Ineffective Assistance of Counsel


Jennings makes two ineffective assistance of counsel claims. First, Jennings alleges that

his attorney, Travis Poindexter (“Mr. Poindexter”), was ineffective for failing to call witnesses

Jennings wanted to testify on his behalf. Second, Jennings argues that Mr. Poindexter failed to

properly represent him throughout his plea negotiations and sentencing.

A. Jennings’ counsel was not ineffective for not calling Jennings’ desired witnesses to

testify on his behalf.

Jennings alleges that Mr. Poindexter was ineffective for failing to call certain witnesses

on his behalf. Specifically, Jennings alleges that he requested the following individuals be called

for the following stated reasons: (1) an adult female who would testify “that the women were

doing [their] own ads and I was not doing the actions I was charged with”; (2) Jennings’s son,

“who would have told them that the statement the prosecutor made to the judge at sentencing

was a lie;” (3) his wife; and (4) the custodian of record for his place of employment, that “would

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have proved I was in another state and could not have did the crime I was charged with” (Civ.

Doc. 1).

Mr. Poindexter addresses Jennings’ allegations in a sworn affidavit. With regard to the

adult female, Mr. Poindexter states that he and his investigator made several attempts to locate

the adult female, confirming her address and the fact that she was represented by counsel

because of pending criminal charges in Jackson County, Missouri. Mr. Poindexter then

determined that:

If a trial were necessary, a subpoena could have (and most likely
would have) been requested. At the pretrial stage, however, [the
adult female] had made no negative statements against Mr.
Jennings and a request to interview her through counsel, could
have resulted in negative consequences for Mr. Jennings (such as a
request by [the adult female] to assist the government against Mr.

(Civ. Doc. 6, Poindexter’s Affidavit). The Court finds Mr. Poindexter’s decision not to solicit

testimony from a witness who might be detrimental to his client’s case was reasonable.

Jennings’ allegation that his attorney failed to call Jennings’ son as a witness is also

without merit. In setting up witnesses to testify on Jennings’ behalf, Mr. Poindexter contacted

Jennings’ son, who was serving in the United States army at the time, and set up an appointment

to interview him. Prior to the interview, on May 13, 2009, “Mr. Jennings left a telephone

message indicating that he wanted to take his son off of the witness list. Additionally, on May

20, 2009, during a phone conversation, Mr. Jennings reiterated that he did not wish for us to talk

to his son” (Civ. Doc. 6, Poindexter’s Affidavit). Accordingly, the Court finds that Mr.

Poindexter reasonably chose not to call Jennings’ son based on his request.

Mr. Poindexter’s affidavit also responds to Jennings’ claim that he failed to call Jennings’

wife as a witness, noting that at the time Jennings was charged, he and his wife had begun

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divorce proceedings. Given that Jennings and his wife were separated, it was not unreasonable

for Mr. Poindexter to not call her to testify on Jennings’ behalf.

Finally, Mr. Poindexter’s affidavit addresses Jennings’ desire to call as a witness his

employer, stating that Jennings’ work records could not have negated any element of his arrest

during an undercover sting operation and, therefore, would have been futile. This was a

reasonable decision.

Accordingly, the Court finds that Mr. Poindexter’s decisions not to call certain witnesses

were reasonable litigation strategies. “[A] reasoned decision not to call a witness is a virtually

unchallengeable decision of trial strategy, in part because there is a considerable risk inherent in

calling any witness because if the witness does not hold up well on cross-examination, the jurors

might draw unfavorable inferences.” Rodela-Aguilar, 596 F.3d at 464 (internal quotation marks

omitted). Additionally, Jennings’ failure to provide affidavits delineating the expected testimony

of any of his alleged exculpatory witnesses is fatal to his ineffective assistance of counsel claim.

See Armstrong v. Kemna, 534 F.3d 857, 867-68 (8th Cir. 2008) (quoting Harrison v.

Quarterman, 496 F.3d 419, 428 (5th Cir. 2007)) (“Ordinarily, a defendant’s failure to present

some evidence from the uncalled witness regarding that witness’s potential testimony . . . would

be fatal to an ineffective assistance of counsel claim.”). Purported testimony that is merely of

hypothetical or remote benefit to the defense is insufficient to prove actual prejudice under

Strickland. Caban v. United States, 281 F.3d 778, 786 (8th Cir. 2002).

B. Jennings’ counsel was not ineffective during his plea negotiations and sentencing.

Jennings’ next allegation is that Mr. Poindexter failed to properly represent him

throughout his plea negotiations and sentencing by not conducting a proper fact investigation, by

failing to raise necessary objections, and by erroneously advising him to plead guilty rather than

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proceed to trial. Contrary to Jennings’ allegations, the record demonstrates that Mr. Poindexter

properly represented Jennings throughout the process.

First, Jennings claims that Mr. Poindexter failed to properly research the charges in the

case. Specifically, Jennings alleges that he should have been charged under 18 U.S.C. §§ 2421

and 2422, sex trafficking, rather than being charged under 18 U.S.C. § 1591, sex trafficking of

children, because his actions lacked the element of coercion. Because of this alleged mistake,

Jennings argues that he was subject to a sentence with a minimum of ten years, rather than a

maximum of ten years as prescribed by 18 U.S.C. § 2421.

Jennings improperly interprets the law. Title 18, section 1591 does not require that the

offense be effected by means of force, fraud, or coercion. “Because the victims were minors and

could not legally consent, the government did not need to prove the elements of fraud, force, or

coercion, which are required for adult victims. Instead, the government was only required to

prove [Defendant] knowingly recruited, enticed, harbored, transported, provided, or obtained a

minor, knowing the minor would be caused to engage in commercial sex acts. United States v.

Elbert, 561 F.3d 771, 777 (8th Cir. 2009). Accordingly, Jennings was properly charged.

Moreover, as Mr. Poindexter states in his affidavit, he fully explained the possible sentences that

Jennings could face either by pleading guilty or proceeding to trial.

Jennings also alleges that Mr. Poindexter failed to investigate whether the government

was funding women’s shelters, giving shelters the incentive to fabricate human trafficking cases.

However, the Court already ruled that this information was irrelevant and would have no

influence on a jury (Crim. Doc. 47).

Next, Jennings alleges that Mr. Poindexter overlooked mistakes in the Presentence

Investigation Report (“PSI”), including the computation that Jennings was subject to fifteen

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years’ imprisonment, rather than the ten years to which the parties had agreed. Mr. Poindexter

responded in his affidavit:

The preliminary PSI recommended that Mr. Jennings should be
subject to a 15 year mandatory minimum sentence as opposed to
the 10 year mandatory minimum to which he pleaded. As a result
of this suggestion, on January 8, 2010, I filed a Motion to
Withdraw the guilty Plea because Mr. Jennings was only advised
of a 10 year mandatory minimum per the written agreement and
plea proceeding by the Court. (Doc. 37.) The Government agreed
that the 10 year mandatory minimum was applicable but that if the
Court determined it were a 15 year mandatory minimum then Mr.
Jennings should be allowed to withdraw his plea. (Doc. 42.) After
review the pleadings, the Court agreed that [a] 10 year minimum
was applicable. (Doc. 43.)

(Civ. Doc. 6, Poindexter’s Affidavit).

Jennings’ allegations that Mr. Poindexter provided him with ineffective assistance of

counsel during his plea agreement and sentencing are not supported by the record. Accordingly,

his motion is denied on these grounds.


Prosecutorial Misconduct

Jennings next asserts a claim for prosecutorial misconduct based on the fact that the

government (1) stated during sentencing that Jennings’ son helped him commit the crime and

had sex with one of the victims; (2) withheld information about its financial support of women’s

shelters; (3) withheld information that its witness was in prison for theft; and (4) violated the

double jeopardy clause.

Jennings’ claim of prosecutorial misconduct is barred because it should have been raised

on direct appeal rather than in a § 2255 motion. “Because habeas relief is an extraordinary

remedy which will not be allowed to do service for an appeal, significant barriers exist in the

path of a petitioner who seeks to raise an argument collaterally which he failed to raise on direct

review.” United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (quoting Bousley v. United

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States, 523 U.S. 614, 621 (1998) (internal quotation marks omitted)). “More specifically, a

claim unraised on direct appeal is procedurally defaulted unless a petitioner can demonstrate (1)

cause for the default and actual prejudice or (2) actual innocence.” Moss, 252 F.3d at 1001.

Jennings failed to raise his claims of prosecutorial misconduct on direct appeal, and he

did not present any argument in the instant motion concerning a cause for the default or actual

prejudice. Therefore, these claims are denied.

III. Evidentiary Hearing

“A petitioner is entitled to an evidentiary hearing on a section 2255 motion unless the

motion and the files and the records of the case conclusively show that [he] is entitled to no

relief.” Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (internal quotation

marks omitted). “No hearing is required, however, ‘where the claim is inadequate on its face or

if the record affirmatively refutes the factual assertions upon which it is based.’” Id. (quoting

Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007)); see also Sanders v. United States,

341 F.3d 720, 722 (8th Cir. 2003) (“A § 2255 motion can be dismissed without a hearing if (1)

the petitioner’s allegations, accepted as true, would not entitle the petitioner to relief, or (2) the

allegations cannot be accepted as true because they are contradicted by the record, inherently

incredible, or conclusions rather than statements of fact.”) (internal quotation marks omitted).

Because Jennings’ allegations are purely legal in nature and can be resolved solely on the basis

of the record, he is not entitled to an evidentiary hearing.


Certificate of Appealability

Jennings can appeal this decision to the Eighth Circuit Court of Appeals only if this Court

issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). Because Jennings cannot

make a substantial showing of a denial of a constitutional right or raise a debatable issue among

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reasonable jurists, the Court declines to issue a certificate of appealability. Slack v. McDaniel,

529 U.S. 473, 484 (2000).


Jennings’ claims of ineffective assistance of counsel are without merit, and his claim of

prosecutorial misconduct is procedurally barred. Accordingly, his motion is DENIED. A

hearing is not warranted because the record conclusively shows that Jennings is not entitled to

any relief, and a certificate of appealability shall not issue.


Dated: July 10, 2013

/s/ Greg Kays

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