United States District Court, M.D. Pennsylvania
JOHN E. JONES III JUDGE.
Karl Joseph Schmieding (“Petitioner” or
“Schmieding”), a state inmate currently confined
at the State Correctional Institution at Forrest
(SCI-Forrest), Marienville, Pennsylvania, initially filed his
petition (Docs. 1, 7) for writ of habeas corpus pursuant to
28 U.S.C. § 2254 on May 5, 2011, seeking relief from his
pleas of guilty to all counts in Court of Common Pleas of
Huntingdon County, Pennsylvania, criminal case
CP-31-CR-0000465-2005, and Court of Common Pleas of Franklin
County, Pennsylvania, criminal docket number
CP-31-0000074-2006. (Doc. 1, p. 1). The matter is proceeding
via a second amended petition, dated August 25,
2017. (Doc. 42). The second amended petition is ripe for
disposition. (Docs. 42, 43, 50, 52, 53). For the reasons that
follow, the Court will deny the petition for writ of habeas
FACTUAL AND PROCEDURAL BACKGROUND
State Court Proceedings
Superior Court of Pennsylvania, in considering
Schmieding's appeal of the denial of relief pursuant to
the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§9541-9546, set forth the following
relevant procedural background:
On September 8, 2006 [sic], Appellant pled guilty to various
sexual offenses against minors. At [Huntingdon County] docket
number CP-31-0000465-2005, Appellant entered a guilty plea to
Photographing a Child Involved in Prohibited Sexual Acts,
Possession of Child Pornography, Contact with a Minor for the
Purpose of Engaging in Sexual Abuse, Unlawful Use of a
Computer, Unlawful Contact with a Minor, and four counts of
Indecent Assault. [18 Pa.C.S.A. §§ 6312(b);
6312(d); 6318(a)(5); 7611(a)(1); 6318(a)(1); and 3126,
respectively.] At [Franklin County] docket number
CP-31-0000074-2006, Appellant entered a plea to 13 counts of
Possession of Child Pornography and one count of Unlawful Use
of a Computer. [18 Pa.C.S.A. §§ 6312(d) and
7611(a)(1), respectively.] After reviewing a pre-sentence
investigation report (“PSI”), the trial court
sentenced appellant to an aggregate term of incarceration of
89 ½ to 215 months. Appellant did not pursue a direct
On September 17, 2006, Appellant filed a counseled PCRA
petition. An amended PCRA petition followed on September 28,
2012. Although a hearing was conducted on January 9, 2014,
Appellant's [PCRA] counsel was subsequently disbarred,
for reasons not of record, and new counsel was appointed. A
new evidentiary hearing was held on October 3, 2014. The PCRA
denied Appellant's petition.
(Doc. 50-5, pp. 2-3).
timely appeal from the denial of PCRA relief to the Superior
Court of Pennsylvania, Schmieding raised the following
1. Whether the PCRA [c]ourt erred in ruling that the [guilty
plea] was knowingly, voluntar[ily], and intelligently made
where there was evidence that neither his attorney nor the
[c]ourt understood the plea/sentencing?
2. Whether the PCRA [c]ourt erred in finding [Appellant's
trial] attorney effective where said attorney failed to call
defense witnesses for [Appellant] at the time of sentencing?
3. Whether [Appellant's] attorney was ineffective for his
failure to file an appeal?
(Id. at 3). The Superior Court affirmed the PCRA
Court on February 2, 2016. (Doc. 50-5, p. 10). On September
29, 2016, the Supreme Court of Pennsylvania denied
Schmieding's Petition for Allowance of Appeal. (Doc.
Federal Court Proceedings
initiated this action with the filing of a petition for writ
of habeas corpus on May 5, 2011 in the United States District
Court for the Western District of Pennsylvania. (Docs. 1, 7).
On November 11, 2011, the matter was transferred to this
Court. On January 31, 2012, the Court stayed the petition to
allow Petitioner to fully exhaust his state court remedies.
(Doc. 20). On January 4, 2017, Schmieding filed a motion
seeking to lift the stay as he had exhausted his state court
remedies. (Doc. 36). On May 2, 2017, the Court granted
Petitioner's motion, lifted the stay, and afforded him
the opportunity to file an amended petition. (Doc. 38). He
filed an amended petition on June 23, 2017. (Doc. 39). He
filed a second amended petition two months later. (Doc. 42).
The Respondent filed a response on January 23, 2018 (Doc. 50)
and on February 12, 2018, Petitioner filed a traverse. On
April 10, 2018, the Court issued an order directing the
parties to supplement their filings to address all seven
grounds raised by Petitioner. Respondent filed a supplemental
response on April 13, 2018. (Doc. 55); Petitioner filed a
supplemental reply on May 4, 2018 (Doc. 56).
ISSUES PRESENTED IN FEDERAL PETITION
1. The sentences were grossly disportinate [sic] to the
crimes which violated the petitiners [sic] constitutional
right agaist [sic] cruel and unusual punishment.
2. Petioner [sic] was denied his right to direct appeal on
every sentencing by Counsel Abeln.
3. Ineffective Assistance of Counsel Abeln.
4. Ineffective Assistance of Counsel Rominger and Counsel
Ghaner PCRA Attorneys. Ablen Trial Attorney.
5. Ineffective Assistance of Counsel Ghaner.
6. Breach of Plea Agreement.
7. Failure to consolidate or/and merge offenses for plea
agreement/or then separated case after petitioner accepted
(Doc. 42, pp. 10-11).
habeas corpus petition pursuant to 28 U.S.C. § 2254 is
the proper mechanism for a prisoner to challenge the
“fact or duration” of his confinement.
v. Rodriguez, 411 U.S. 475, 498-99 (1973).
Petitioner's case is governed by the Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110
Stat. 1214, April 24, 1996 (“AEDPA”). 28 U.S.C.
§ 2254, provides, in pertinent part:
(a) The Supreme Court, a Justice thereof, a circuit judge, or
a district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or
treaties of the United States. ...
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim—
(1) unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding....
28 U.S.C. § 2254. Section 2254 sets limits on the power
of a federal court to grant an application for a writ of
habeas corpus on behalf of a state prisoner. Cullen v.
Pinholster, 563 U.S. 170, 181 (2011); Glenn v.
Wynder, 743 F.3d 402, 406 (3d Cir. 2014). A federal
court may consider a habeas petition filed by a state
prisoner only “on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a).
limiting habeas relief to state conduct which violates
“the Constitution or laws or treaties of the United
States, ” § 2254 places a high threshold on the
courts. Typically, habeas relief will only be granted to
state prisoners in those instances where the conduct of state
proceedings resulted in a “fundamental defect which
inherently results in a complete miscarriage of
justice” or was completely inconsistent with
rudimentary demands of fair procedure. See, e.g., Reed v.
Farley, 512 U.S. 339, 354 (1994).
is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions. In
conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution,
laws, or treaties of the United States. 28 U.S.C. §
2241; Rose v. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175,
177, 46 L.Ed.2d 162 (1975) (per curiam).”
Estelle v. McGuire, 502 U.S. 62, at 67-68 (1991).
“[F]ederal habeas corpus relief does not lie for errors
of state law.” Lewis v. Jeffers, 497 U.S. 764,
780 (1990); see also Pulley v. Harris, 465 U.S. 37,
grounds four and five, Petitioner contends that PCRA counsel
were ineffective in failing to communicate with each other
and with trial counsel to obtain critical
information. (Doc. 42, pp. 10, 11). Freestanding claims
of ineffective assistance of PCRA counsel are not cognizable
on federal habeas review. 28 U.S.C. § 2254(i)
(“The ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall
not be a ground for relief in a proceeding arising under
section 2254.”); see also Coleman v. Thompson,
501 U.S. 722, 752-53 (1991); Pennsylvania v. Finley,
481 U.S. 551, 555-56 (1987). Accordingly, these claims will
be denied as non-cognizable.
Exhaustion and Procedural Default
relief “shall not be granted unless it appears that . .
. the applicant has exhausted the remedies available in the
courts of the State.” 28 U.S.C. § 2254(b)(1)(A);
see also O'Sullivan v. Boerckel, 526 U.S. 838,
845 (1999). The state courts must have the first opportunity
to redress any claimed violation of a habeas petitioner's
federal rights. Picard v. Connor, 404 U.S. 270,
275-76 (1971). The habeas statute codifies this principle by
requiring that a petitioner exhaust the remedies available in
the courts of the State, 28 U.S.C. § 2254(b)(1)(A),
meaning a state prisoner must “fairly present”
his claims in “one complete round of the state's
established appellate review process, ” before bringing
them in federal court. O'Sullivan, 526 U.S. at
845 (stating “[b]ecause the exhaustion doctrine is
designed to give the state courts a full and fair opportunity
to resolve federal constitutional claims before those claims
are presented to the federal courts, . . . state prisoners
must give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of
the State's established review process.”); see
also Duncan v. Henry, 513 U.S. 364, 365 (1995);
Picard, 404 U.S. at 275 (1971); Lambert v.
Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
cannot be granted unless all available state remedies have
been exhausted, or there is an absence of available state
corrective process, or circumstances exist that render such
process ineffective to protect the rights of the applicant.
See 28 U.S.C. § 2254(b)(1). The exhaustion
requirement is grounded on principles of comity in order to
ensure that state courts have the initial opportunity to
review federal constitutional challenges to state
convictions. See Werts v. Vaughn, 228 F.3d 178, 192
(3d Cir. 2000). Federal habeas courts “ ‘will not
review a question of federal law decided by a state court if
the decision of that court rests on a state law ground that
is independent of the federal question and adequate to
support the judgment.' ” Lambrix v.
Singletary, 520 U.S. 518, 522 (1997) (quoting
Coleman, 501 U.S. at 729.
claims contained in grounds one, six and seven, and the
ineffective assistance of counsel claim contained in ground
4, are unexhausted as Schmieding wholly failed to present
them to the state courts. As noted supra, the state
courts must have the first opportunity to redress any claimed
violation of a habeas petitioner's federal rights.
Picard, 404 U.S. at 275-76. A petitioner has
exhausted a federal claim only if he or she presented the
“substantial equivalent” of the claim to the
state court. Picard, 404 U.S. at 278; see also
McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)
(holding that petitioner must present both “factual and
legal substance” of claim to state courts). The
exhaustion requirement would “serve no purpose if it
could be satisfied by raising one claim in the state courts
and another in the federal courts.” Picard 404
U.S. at 276. The federal claims raised in the state courts
need not be identical to the claims now pursued in federal
court. Id. at 277 (recognizing that petitioner is
entitled to “variations in the legal theory or factual
allegations used to support a claim”). Review of the
record confirms that Schmieding wholly failed to present the
aforementioned claims to the state courts.
a claim is not exhausted because it has not been
‘fairly presented' to the state courts, but state
procedural rules bar the applicant from seeking further
relief in state courts, as is the case here, the exhaustion
requirement is satisfied because there is ‘an absence
of available State corrective process.' 28 U.S.C. §
2254(b). In such cases, however, applicants are considered to
have procedurally defaulted their claims and federal courts
may not consider the merits of such claims unless the
applicant establishes ‘cause and prejudice' or a
‘fundamental miscarriage of justice' to excuse his
or her default. See Coleman v. Thompson, 501 U.S.
722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).”
McCandless, 172 F.3d at 260.
demonstrate “cause” for a procedural default, a
petitioner must point to some objective external factor which
impeded his efforts to comply with the state's procedural
rule. See Murray v. Carrier, 477 U.S. 478, 488
(1986). “Prejudice” will be satisfied only if he
can demonstrate that the outcome of the state proceeding was
“unreliable or fundamentally unfair” as a result
of a violation of federal law. See Lockhart v.
Fretwell, 506 U.S. 364, 366 (1993).
if a petitioner demonstrates that a “constitutional
violation has probably resulted in the conviction of one who
is actually innocent, ” Murray, 477 U.S. at
496, then a federal court can excuse the procedural default
and review the claim in order to prevent a fundamental
miscarriage of justice. Edwards v. Carpenter, 529
U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218,
224 (3d Cir. 2001). The miscarriage of justice exception
applies only in extraordinary cases, and actual innocence
means factual innocence, not legal insufficiency. Bousley
v. United States, 523 U.S. 614, 623 (1998);
Murray, 477 U.S. at 496. A petitioner establishes
actual innocence by asserting “new reliable
evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial, ”
showing that no reasonable juror would have voted to find the
petitioner guilty beyond a reasonable doubt. Hubbard v.
Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004).
fails to demonstrate “cause for the default and
prejudice attributable thereto, ” or “that the
failure to consider the federal claim will result in a
fundamental miscarriage of justice.” Harris v.
Reed, 489 U.S. 255, 262 (1989). See also,
Werts, 228 F.3d at 192-93 (A petitioner can overcome
procedural default, and thereby empower the habeas court to
entertain the merits of the habeas claim, with a showing of
“cause and prejudice” or by demonstrating a
fundamental “miscarriage of justice.”); see
also Schlup v. Delo, 513 U.S. 298, 321 (1995) (The
miscarriage of justice exception is “explicitly
tied...to the petitioner's innocence.”). This
matter was stayed for a significant number of years while he
pursued collateral relief in state court. During that time
period, he twice amended his PCRA petition. However, he
neglected to raise the claims contained in grounds one, six
or seven. The claims at issue are presented here, in federal
court, in the first instance. The failure to raise the issues
in state court is wholly attributable to Schmieding and his
failure to pursue them during collateral review and,
therefore, cannot form the basis for cause and prejudice.
Further, Schmieding does not contend that he is actually
innocent. Consequently, there is no basis on which to excuse
his procedural default of these claims.
Claims Adjudicated on the Merits by the State
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), federal courts reviewing a state
prisoner's application for a writ of habeas corpus may
not grant relief “with respect to any claim that was
adjudicated on the merits in State court proceedings”
unless the claim (1) “resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States” or (2) “resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d).
the purpose of AEDPA is to ensure that federal habeas relief
functions as a guard against extreme malfunctions in the
state criminal justice systems, and not as a means of error
correction, ” Greene v. Fisher, 565 U.S. 34,
38 (2011) (internal quotations and citations omitted),
“[t]his is a difficult to meet and highly deferential
standard . . . which demands that state-court decisions be
given the benefit of the doubt.” Cullen, 563
U.S. at 181(internal quotation marks and citation omitted).
The burden is on Kittrell to prove entitlement to the writ.
decision is “contrary to” federal law if
“the state court applies a rule that contradicts the
governing law set forth in [Supreme Court] cases” or
“if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[Supreme Court] precedent.” Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). A decision is an
“unreasonable application” of federal law if the
state court identified the correct governing legal rule but
applied the rule to the facts of the case in an objectively
unreasonable manner. Renico v. Lett, 559 U.S. 766,
773 (2010). A decision is based on an “unreasonable
determination of the facts” if the state court's
factual findings are objectively unreasonable in light of the
evidence presented to the state court. Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003).
Section 2254(e) provides that “[i]n a proceeding
instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court,
a determination of a factual issue shall be presumed to be
correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
claims adjudicated on the merits allege ineffective
assistance of trial counsel. Specifically, in ground three,
Schmieding contends that counsel was ineffective in failing
to adequately advise him with regard to his plea bargain and
the subsequent entry of his plea. (Doc. 42, pp. 10, 11). In
his second ground for relief, Petitioner argues that counsel
was ineffective in failing to file his direct appeal. (Doc.
42, p. 10). It also appears that he is contending that
counsel was ineffective in failing to call character
witnesses at sentencing. (Doc. 56, pp. 15-19).
Clearly Established Federal Law
setting forth the standard for ineffective assistance of
counsel, the Superior Court stated as follows:
well settled that
[t]o plead and prove ineffective assistance of counsel a
petitioner must establish: (1) that the underlying issue has
arguable merit;(2) counsel's actions lacked an objective
reasonable basis; and (3) actual prejudice resulted from
counsel's act or failure to act.
Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa.
Super. 2012), appeal denied, 64 A.3d 631(Pa. 2013) (citation
omitted). “Generally where matters of strategy and
tactics are concerned, counsel's assistance is deemed
constitutionally effective if he chose a particular course
that had some reasonable basis designed to effectuate his
client's interests.” Commonwealth v.
Colavita, 993 A.2d 874, 887 (Pa. 2010) (citation
omitted). A failure to satisfy any prong of the test will
require rejection of the claim. See Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014).
(Doc. 50-5, p. 4).
clearly established Federal law governing ineffective
assistance of counsel claims, as determined by the Supreme
Court of the United States is as follows:
Ineffective assistance of counsel claims are “governed
by the familiar two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984).” Shelton v. Carroll, 464 F.3d 423, 438
(3d Cir. 2006) (citing Wiggins v. Smith, 539 U.S.
510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). For AEDPA
purposes, the Strickland test qualifies as
“clearly established Federal law, as determined by the
Supreme Court.” Williams, 529 U.S. at 391, 120
S.Ct. 1495. Under Strickland, a habeas petitioner
must demonstrate that: (1) counsel's representation fell
below an objective standard of reasonableness; and (2) there
is a reasonable probability that, but for counsel's
error, the result would have been different. 466 U.S. at 687,
104 S.Ct. 2052. For the deficient performance prong,
“[t]he proper measure of attorney performance remains
simply reasonableness under prevailing professional
norms.” Id. at 688, 104 S.Ct. 2052. This
review is deferential:
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. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional
Id. at 689, 104 S.Ct. 2052
Not every “error by counsel, even if professionally
unreasonable, ... warrant[s] setting aside the judgment of a
criminal proceeding.” Id. at 691, 104 S.Ct.
2052. “Even if a defendant shows that particular errors
of counsel were unreasonable, ... the defendant must show
that they actually had an adverse effect on the
defense”; in other words, the habeas petitioner must
show that he was prejudiced by counsel's deficient
performance. Id. at 693, 104 S.Ct. 2052. To
establish prejudice, “[t]he 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, 104 S.Ct. 2052.
In assessing an ineffective assistance of counsel claim,
“the ultimate focus of inquiry must be on the
fundamental fairness of the proceeding.... In every case the
court should be concerned with whether ... the result of the
particular proceeding is unreliable because of a breakdown in
the adversarial process that our system counts on to produce
just results.” Id. at 696, 104 S.Ct. 2052.
Rainey v. Varner, 603 F.3d 189, 197-98 (3d Cir.
2010). The Third Circuit has held that the Pennsylvania
ineffectiveness test is not contrary to the Supreme
Court's Strickland standard. See Werts v.
Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). Thus, the
state court's application of the Pennsylvania
three-pronged test was not “contrary to clearly
established federal law.”
the state court has decided the claim on the merits, as is
the case here, “[t]he question ‘is not whether a
federal court believes the state court's
determination' under the Strickland standard
‘was incorrect but whether that determination was
unreasonable—a substantially higher threshold.'
” Knowles v. Mirzayance, 556 U.S. 111, 123
(2009) (quoting Schriro v. Landrigan, 550 U.S. 465,
473 (2007)). “And, because the Strickland
standard is a general standard, a state court has even more
latitude to reasonably determine that a defendant has not
satisfied that standard.” Id.
Application of Federal Law and Determination of Facts in
Light of Evidence Presented in the State court
September 8, 2006, Schmieding pled guilty to various sexual
offenses against minors and numerous child pornography
charges; he was subsequently sentenced to an aggregate term
of incarceration of 89 ½ to 215 months. He argues that
he “was told about the deals 5 max he would be serving
in county[;] 20 years if he didn't take the pleas.
Petitioner accepted the pleas[, ] signed everything[, ] did
everything they wanted. Yet what his advice and promise told
petitioner were far apart. Petitioner ended up with what he
was threatened with as a max in each county or very close to
it.” (Doc. 56, p. 17). He essentially argues that the
ineffective assistance of counsel caused him to enter an
involuntary or unknowing guilty plea. (Doc. 42, pp. 10, 11; Doc.
56, pp. 17-19).
March 17, 2006, Schmieding appeared in the Court of Common
Pleas of Huntingdon County for the purpose of entering guilty
pleas to the matters at Huntingdon County docket number
CP-31-0000465-2005, and Franklin County docket number
The transcript of that guilty plea hearing colloquy follows:
MR. STEWART: Cases Numbers 465-2005 and 74 of 2006, Karl
Schmeiding [sic]. Your Honor, these cases are on for guilty
THE COURT: Where are the Informations?
MR. STEWART: I suspect they're still in the file.
THE COURT: Would you endorse the informations to what the
young man is pleading to? [Schmieding signed the informations
and indicated that he was “guilty as charged.”
(Doc. 50-7, pp. 10, 11, 16-18).] What is the criminal offense
MR. STEWART: In 465 charges involve sexual abuse of children,
unlawful contact with a minor, the unlawful use of a computer
and indecent assault. In 74 it's also sexual abuse of
children, unlawful use of computer and multiple counts of the
possession of child pornography on a computer.
THE COURT: What is the code violation there?
MR. STEWART: For 465 -
THE COURT: What's the Title 18?
MR. STEWART: It's 6312(d). Those are all - they are all
third degree felonies.
THE COURT: The charges, young man, in 74 appear to contain 13
counts of por— of child pornography, which is a felony
of the third degree. Is that accurate?
MR. STEWART: That's accurate.
THE COURT: First I will tell you, Karl, that a felony of the
third degree is punishable by a jail sentence of up to seven
years and a fine of up to $15000. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Now it is not at all clear to me whether these
charges would be a single charge for purposes of sentencing
or not. Mr. Stewart
what's your view on that?
MR. STEWART: My view is that in the first case the charges
involve the use of this Defendant photographing himself
having indecent contact ...