NOT FOR PUBLICATION [Dkt. Ent. No. 1]

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

KEVIN MAYFIELD, :

Petitioner, : Civil Action No. 11-2950 (RMB)

v. : OPINION

UNITED STATES OF AMERICA :

Respondent. :

 

Appearances:

Kevin Mayfield

#41419-050

F.C.I. Schuylkill

P.O. Box 759

Minersville, Pennsylvania 17954

Pro Se Petitioner

Alyson M. Oswald, AUSA

Office of the U.S. Attorney

District of New Jersey

P.O. Box 2098

Camden, New Jersey 08101

Attorneys for Respondent

BUMB, UNITED STATES DISTRICT JUDGE:

Currently before the Court is the motion of Petitioner Kevin

Mayfield (“Petitioner” or “Mayfield”) to vacate, set aside, or

correct his sentence pursuant to 28 U.S.C. § 2255 (the

“Petition”). The United States has filed an Answer responding to

the Petition. The Court has considered the parties’ submissions,

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and for the reasons set forth below, denies the motion.

I. Background

On July 10, 2007, Mayfield was arrested pursuant to a

federal criminal complaint, charging him with conspiring to

transport minors in interstate commerce with the intent that they

engage in prostitution, in violation of 18 U.S.C. § 2423(a) and

(e). On October 9, 2007, a grand jury sitting in the District of

New Jersey returned a three-count indictment against Petitioner,

charging him with the same conspiracy offense alleged in the

Complaint, a substantive violation of 18 U.S.C. § 2423(a) and

pandering or advertising of child pornography, in violation of 18

U.S.C. § 225A(a)(3)(B).

On September 29, 2008, a jury convicted Petitioner on all

counts. On January 8, 2009, the Court sentenced Petitioner to

three concurrent terms of 200 months imprisonment; required

Petitioner to serve a life-term of supervised release; and

imposed a $500 fine. Petitioner filed a premature notice of

appeal on January 9, 2009, which ripened when a final judgment

was entered on January 16, 2009. 

In his direct appeal, Petitioner argued that the Court erred

in denying a motion to dismiss based on statutory speedy trial

grounds and that the Court erred in denying a motion to suppress

statements made at two pre-trial proffer sessions. On January

22, 2010, the Third Circuit Court of Appeals affirmed

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Petitioner's conviction on the merits and affirmed his sentence. 

Mayfield's petition for a writ of certiorari to the United States

Supreme Court was denied on May 24, 2010.

II. The Trial

At trial, the United States presented evidence that, in

approximately May 2007, Mayfield and co-conspirator Casson Coward

met minors J.B. and A.B., aged 16 and 14 years respectively,

outside the minors' home in Pennsylvania, with the intention of

ultimately having J.B. and A.B. engage in prostitution. Mayfield

and Coward exchanged phone numbers with the minors. 

Approximately two weeks later Coward drove to Pennsylvania and

picked up both minors. After all three took Ecstasy pills, 

Coward drove A.B. and J.B. to a hotel. Mayfield arrived at the

hotel some time later, where he rented a room for himself and

J.B. After a brief interlude wherein Coward and Mayfield drove

the minors to a bar and left them outside for about ten minutes,

they all returned to the hotel where J.B. stayed in Mayfield’s

room and A.B. stayed with Coward. 

Two days later, Mayfield and Coward transported J.B. and

A.B. to New Jersey. Mayfield rented a room for himself and J.B.

at the Sunnyside Motel in Egg Harbor Township, New Jersey, under

the alias “James Wilson.” In the hotel room, Mayfield took nude

pictures of J.B. The next day, June 7, 2007, Mayfield rented a

room for himself and J.B. at the Crest Motel in Absecon, New

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Jersey, again under the alias “James Wilson.” 

On June 7, 2007, an advertisement titled "Vanilla Treat ...

W4M ... 2111" was uploaded to the Craig's List Internet site from

an internet protocol ("IP") address registered to Kevin Crump,

Petitioner's father. Evidence at trial showed that Petitioner

had a computer, that he had previously asked his father for an

air card, which is used to go on the Internet, and that Mr. Crump

bought an air card for his son, the Petitioner.1

 

The "Vanilla Treat" post on Craig's List contained a nude,

sexually explicit photograph of 16-year-old J.B., along with a

cell phone number and some writing in the style of an

advertisement. The number listed in the post was for a cell

phone Petitioner had given to J.B. when they arrived in New

Jersey. When J.B. began receiving calls on that cell phone,

Petitioner instructed her to tell callers that it was $150 for a

half hour and $175 for a full hour. J.B. testified at trial that

she did not answer the calls and eventually told Petitioner she

wanted to be taken home. Petitioner initially refused because

J.B. "didn't make money” by "having sex," but Petitioner later

drove J.B. to Philadelphia, Pennsylvania, where he left her at a

convenience store and instructed her to call Coward. Petitioner

1 Evidence showed that Crump did not go on Craig’s List and

never used the air card to post anything on Craig’s List. J.B.

also testified at trial that she did not put her picture on the

Internet. 

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testified that J.B. said she was 19 years old and a grown woman

when he dropped her off in Philadelphia. 

A.B. testified at trial that after being taken to New

Jersey, Coward rented a room at a Travel Lodge Motel. Coward

asked to photograph A.B. and asked whether she would agree to

appear in a Craig's List advertisement for prostitution. A.B.

agreed and Coward took nude photos of her and posted them on

Craig's List from a laptop computer under a post titled "College

Cute W4M-18." A.B. began receiving phone calls on the cell phone

Coward had given her. A.B. answered two or three of the calls,

and met with two individuals. A.B. had oral sex with the

individuals, after which she charged $200, as she had been

instructed to do by Coward. A.B. was eventually arrested after

undercover agents accessed the Craig's List post. 

Coward was arrested on June 8, 2007. Shortly thereafter,

after learning that authorities were looking for him, Mayfield

surrendered to the authorities in Atlantic City. 

III. Discussion

Petitioner argues that he was given ineffective assistance

of counsel on the following three grounds: (1) failure to make

(or wrongful withdrawal of) a motion for judgment of acquittal

under Rule 29 of the Federal Rules of Criminal Procedure; (2)

failure to investigate and call Petitioner's brother as a

witness; and (3) failure to introduce inadmissible hearsay

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statements of co-conspirator Casson Coward. The United States

challenges each of these arguments. The Court first addresses

the standard for ineffective assistance of counsel, and then,

each of the Petitioner’s claims.

A. Standard For Ineffective Assistance of Counsel Claims

To prevail on an ineffective assistance of counsel claim,

the petitioner must demonstrate that (1) counsel's performance

was deficient, and (2) that this performance actually prejudiced

the petitioner. Strickland v. Washington, 466 U.S. 668, 687

(1984). A counsel's performance is deficient if the errors made

were so serious that counsel was not functioning as the "counsel"

guaranteed by the Sixth Amendment. Id.

The first Strickland prong is an objective standard of

“reasonableness under prevailing professional norms.” Id. at

688. The Constitution requires a fair trial, not some higher

quality of legal representation. See id. at 688-89. Thus, the

standard is “highly deferential” and there is “a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689.

The second Strickland prong is a subjective, totality-ofthe-circumstances analysis of whether counsel’s conduct “actually

had an adverse effect on the defense.” Id. at 693. A

speculative or hypothetical effect is not enough. Id. There

must be “a reasonable probability that, but for counsel’s

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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.

Strickland's standard “is highly demanding." Kimmelman v.

Morrison, 477 U.S. 365, 382 (1986). "It is not enough for the

defendant to show that the errors had some conceivable effect on

the outcome of the proceeding. Virtually every act or omission

of counsel would meet that test . . . and not every error that

conceivably could have influenced the outcome undermines the

reliability" of that outcome. Strickland, 466 U.S. at 693

(citation omitted).

1. Petitioner’s Counsel Was Not Ineffective By Withdrawing

Or By Failing to Make A Motion For Acquittal

Petitioner argues that his trial counsel was ineffective in

withdrawing a motion for acquittal made pursuant to Federal Rule

of Criminal Procedure 29.2

 The United States responds that

Petitioner can show no prejudice because, even if Petitioner’s

counsel had persisted with a motion for acquittal, the Court

would have denied it. 

2

 The record reflects that the Petitioner - not his counsel

- made the Rule 29 motion before the Court. Generally, the Court

will not consider pro se motions made by a defendant who is

represented by counsel. United States v. Essig, 10 F.3d

968, 973 (3d Cir. 1993). Even if the Court had considered the

motion as properly made by defense counsel, it was not

ineffective assistance of counsel for defense counsel to withdraw

it because, as discussed infra, no prejudice resulted.

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Federal Rule of Criminal Procedure 29 permits a defendant to

submit a motion for a judgment of acquittal of any offense for

which the evidence is insufficient to sustain a conviction within

fourteen days after a jury verdict. Fed. R. Cr. P. 29(a)i(c)(1). 

To determine whether a jury verdict rests on legally sufficient

evidence for Rule 29 purposes, "the relevant question is whether,

after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in

original). All evidence must be viewed in the light most

favorable to the government. Id. at 319. Indeed, "'[o]nly when

the record contains no evidence, regardless of how it is

weighted, from which the jury could find guilt beyond a

reasonable doubt, may an appellate court overturn the verdict.'"

United States v. Anderson, 108 F.3d 478, 481 (3d Cir. 1997)

(quoting United States v. McNeill, 887 F.2d 448, 450 (3d Cir.

1989)).

"Inferences from established facts are accepted methods of

proof when no direct evidence is available so long as there

exists a logical and convincing connection between the facts

established and the conclusion inferred." McNeill, 887 F.2d at

450." The fact that evidence is circumstantial does not make it

less probative than direct evidence." McNeill, 887 F.2d at 450.

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Here, Petitioner contends that the evidence was insufficient

to support a conviction for advertising child pornography in

violation of 18 U.S.C. § 2252A(a)(3)(B). Contrary to

Petitioner's claim, and viewing all of the evidence in the light

most favorable to the prosecution, however, the trial record

demonstrates that a rational trier of fact could have found the

following essential elements under 18 U.S.C. § 2252A(a)(3)(B)

were satisfied beyond a reasonable doubt. 

First: That the defendant knowingly advertised, promoted,

presented, or distributed an obscene visual depiction of a

minor engaging in sexually explicit conduct or a visual

depiction of an actual minor engaged in sexually explicit

conduct;

Second: That such visual depiction had been distributed

through the mail or in interstate commerce or foreign

commerce by any means, including by computer, as charged;

and

Third: That at the time of such distribution the defendant

believed that such items constituted or contained an obscene

visual depiction of a minor engaging in sexually explicit

conduct or a visual depiction of an actual minor engaged in

sexually explicit conduct.

18 U.S.C. § 2252A{a)(3)(B). 

The jury heard evidence that on June 6, 2007, Mayfield took

nude, sexually explicit pictures of 16 year-old J.B. at the

Sunnyside Motel. The evidence also inferentially showed that

Petitioner posted one of those nude, sexually explicit

photographs of J.B. to the Internet site Craig's List using an IP

address registered to Mayfield's father. Indeed, the United

States introduced evidence that showed Petitioner's possession of

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a computer and that Petitioner's father had bought an air card

for Petitioner, which would have allowed Petitioner to access the

Internet. The United States also introduced evidence which

showed that Crump did not go on Craig's List and never used the

air card to post anything on Craig's List. J.B. also testified

at trial that she did not put her picture on the Internet. 

In addition to the sexually explicit photograph of 16-year

old J.B., the Craig's List post included a phone number for a

cell phone given to J.B. by Mayfield and some writing in the

style of an advertisement, including the title, "Vanilla Treat -

WFM - 21." "WFM" is shorthand for "women for men." Petitioner

testified that J.B. told him she was 19, but J.B. testified that

she never told Mayfield her age.3 When calls were received,

Mayfield instructed J.B. to tell callers "$150 for a half hour,

$175 for a full hour." Later, when J.B. asked to go home, 

Mayfield said he would not take her home "because [she] didn't

make money," and that he wanted her making money "having sex."

The jury also had as evidence Government's Exhibit 5, which

included the sexually explicit photograph of J.B., age 16, as

evidence of Petitioner's belief that J.B. was a minor.

3

 The jury could draw the inference that WFM-21 was meant to

indicate the age of the woman (women) was 21. If Mayfield

thought J.B. was nineteen, the jury could have concluded he would

not have needed to lie about her age in the Craig's List post,

where he listed her age as twenty-one. The jury could reasonably

infer from this evidence that Mayfield believed that J.B. was a

minor at the time he photographed her.

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Based on this evidence, a rational trier of fact could have

found that each of the essential elements under 18 U.S.C. §

2252A{a)(3)(B) was satisfied beyond a reasonable doubt. Thus,

Petitioner’s counsel's withdrawing the motion for a judgment of

acquittal and/or his failure to file such a motion would not have

resulted in dismissal of the count charging the Petitioner with

advertising child pornography. As such, Petitioner cannot

demonstrate prejudice, and the Court finds no ineffective

assistance of counsel in this claim.

2. Petitioner’s Counsel Was Not Ineffective By Failing To

Conduct A Reasonable Investigation By Not Interviewing

Or Calling Darrick Mayfield As A Witness For The Defense

Petitioner claims that it was ineffective assistance of

counsel not to investigate and interview his brother, Darrick

Mayfield. In support of his argument, Petitioner submits an

affidavit of Darrick Mayfield, who avers that, if asked, he would

have testified that on June 7, 2007, Darrick Mayfield was in the

car when Petitioner dropped J.B. off in Philadelphia, and that

after J.B. exited Petitioner's car, she stated, "I am a grown

woman, I can take care of myself." Pet. Br. at Appendix A.

Where a petitioner claims that trial counsel is ineffective

for failing to call a witness, "he must make a specific,

affirmative showing as to what the missing evidence would have

been [citation omitted] and prove that this witness's testimony

would have produced a different result." Patel v. U.S., 19 F.3d

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1231 (7th Cir. 1994)(affirming district court's denial of 2255

motion without an evidentiary hearing). Petitioner has failed to

do so.

The Petitioner has not shown a reasonable probability that

the result of the proceeding would have been different with the

testimony, had it been admitted.4 Strickland, 466 U.S. at 695

("The defendant must show that there is a reasonable probability

that .. the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine

confidence in the outcome."). Even if the jury had heard that

J.B. told Petitioner that she was a "grown woman" when she was

dropped off in Philadelphia, it would not have been relevant to

the jury's determination that Petitioner believed that J.B. was a

minor at the time that he photographed her, which is the critical

point in time. Further, as set forth above, the government

presented other evidence which the jury could have concluded that

at the time that Petitioner took nude photos of J.B. and posted

them on Craig's List, he believed that she was a minor. 

4

 Moreover, it is doubtful these alleged statements made to

Darrick Mayfield would have been admitted. First, the alleged

statements of J.B. that she was a "grown woman" and "could take

care of [her]self" are inadmissible hearsay. Fed. R. Evid. 802. 

That J.B. allegedly said she was "grown" and "could take care of

[her]self" after Petitioner took sexually explicit photos of her

and after Petitioner posted them on Craig's List could not be

offered to show Petitioner's state of mind regarding J.B.'s age

at the time he took those photographs and posted them on Craig's

List, in violation of 18 U.S.C. § 2252A(a)(3)(B). Petitioner has

failed to offer any applicable exception to the hearsay rule. 

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Petitioner concedes that the jury would have been free to weigh

the credibility of Darrick Mayfield and find that his testimony

was less credible because he is the brother of the Petitioner. 

Accordingly, this claim is without merit.

3. Petitioner’s Counsel Was Not Ineffective By Failing To

Investigate Adequately And Introduce Statements By

Petitioner’s Co-Conspirator

Petitioner argues that his counsel was ineffective for

failing to investigate adequately and introduce statements made

by Petitioner's co-conspirator, Coward. Specifically, Petitioner

claims that the statements of Coward would have had the effect of

"exonerating" Petitioner of the offenses charged. Pet. Br. at 13.

As set forth in Petitioner’s Brief, Appendix B, Coward made

the following statements to a private investigator hired by the

defense:5

 When asked why J.B. and A.B. came to Atlantic City with

Coward and Petitioner, Coward responded, "Of the purpose of just

friendship." Coward admitted, however, that he took photographs

of "one of" the girls "basically to post," to promote

prostitution. Pet. Br. Appendix B. Coward answered that it was

"correct" that Petitioner had "no knowledge of any of the illegal

activities," and "[b]asically that [Petitioner] is innocent," and

that Petitioner had "nothing to do with any of this." Pet. Br.

Appendix B. Coward acknowledged, however, that there were two

5

 These statements were not made under oath or subject to

the penalty of perjury. Pet. Br. at Appendix B.

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young girls involved, and that he (Coward) was soliciting only

"one of them" "for prostitution on the internet." Pet. Br.

Appendix B. Notably, the investigator did not ask Coward

questions about Petitioner's involvement with the other girl, and 

Coward did not make any statements regarding Petitioner's

involvement with the second girl. Pet. Br. Appendix B.

Petitioner’s counsel was not ineffective for failing to

introduce Coward's statements because they were inadmissible

hearsay, and, even if admitted, they would not have changed the

result. Petitioner argues that Coward's statements should have

been introduced because Coward was unavailable as a witness and

they were statements against interest. Pet.'s Br. at 14. 

Coward's statements are inadmissible hearsay, however, because the

Court found that Coward was not unavailable as a witness. The

Court analyzed the "declarant unavailable" exceptions under Rule

804(a) of the Federal Rules of Evidence and specifically noted on

the record that none applied.6 Id. Counsel certainly cannot be

deemed ineffective for failing to introduce Coward's statements

when the Court ruled that Coward's out-of-court statements were

inadmissible. Petitioner has not argued an alternative

evidentiary basis that would have applied. 

Moreover, Mayfield cannot show that Coward's statements, even

6 Mayfield acknowledges that the Court found that Coward was

not unavailable as a witness. Pet.'s Br. at 14 n.3.

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if admitted, would have changed the outcome. The record reflects

considerable evidence from which the jury could reasonably

conclude that Petitioner transported minor J.B. with the intent to

engage in prostitution. Coward's statements do not tend to prove

that Petitioner unknowingly transported an individual under the

age of 18, and they do not tend to disprove that Petitioner

transported with the intent to engage in prostitution. Although

Coward stated that A.B. and J.B. went to Atlantic City for "just

friendship," he also admitted that once they were in Atlantic

City, Coward photographed one of the girls and put it on the

Internet to promote prostitution. Pet. Br. at Appendix B. 

Coward's statements, even if credited by a jury, do not bear on

Petitioner's intent to transport J.B. for purposes of

prostitution; Coward's statements only tend to exonerate

Petitioner with respect to "one" of the girls. See Pet. Br. at

Appendix B.

This Court finds no ineffective assistance of counsel as to

this claim.

CONCLUSION

For the above reasons, the Court finds that Petitioner’s

claims of ineffective assistance of counsel must fail. 

Petitioner’s claims here are based on a purported denial of his

Sixth Amendment right to effective counsel. Based on the analysis

above, the Court finds that Petitioner’s claims are without merit

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under well established rules of law. Reasonable jurists would

agree that in each of Petitioner’s claims of error, he either did

not show that his counsel’s actions were unreasonable or he did

not show that he suffered any prejudice. Therefore, the Court

shall not issue a certificate of appealability.7

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: February 29, 2012

7

 A litigant may not appeal from a final order in a

proceeding under 28 U.S.C. § 2255 without a certificate of

appealability. 28 U.S.C. § 2253(c)(1)(B). The Local Appellate

Rules for the Third Circuit state: 

At the time a final order denying a petition under 28 U.S.C.

§ 2254 or § 2255 is issued, the district judge will make a

determination as to whether a certificate of appealability should

issue . . . . If an order denying a petition under § 2254 or §

2255 is accompanied by an opinion or a magistrate judge’s report,

it is sufficient if the order denying the certificate references

the opinion or report. L. App. R. 22.2. A certificate of

appealability shall not issue unless there is a “substantial

showing of the denial of a constitutional right.” 28. U.S.C. §

2253(c)(2). “Where a district court has rejected the

constitutional claims on the merits, the showing required to

satisfy § 2253(c) is straightforward: The petitioner must

demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 529 U.S.

473, 484 (2000).

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