                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                _______________

                                  No. 09-2817
                                _______________

John William Gool, Jr.,                *
                                       *
             Appellant,                *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Southern District of Iowa.
United States of America,              *
                                       * [UNPUBLISHED]
             Appellee.                 *
                                _______________

                             Submitted: February 8, 2010
                                 Filed: May 28, 2010
                                _______________

Before LOKEN, Chief Judge,1 GRUENDER and BENTON, Circuit Judges.
                             _______________

PER CURIAM.

       During the 1990s, John William Gool, Jr., lived next door to his sister-in-law
and her family in Clinton, Iowa. While his sister-in-law’s family was on a vacation,
Gool surreptitiously installed a video camera in their residence and connected the
camera to his house through a coaxial cable. Gool used the camera to videotape his
sister-in-law and her children undressing outside their basement shower. Gool
recorded dozens of such videos over a period of several years and converted some of

      1
       The Honorable James B. Loken stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2010. He has been succeeded by the Honorable William Jay Riley.
the recordings to digital format. Gool and his wife divorced in 2004. In 2006, Gool’s
former wife found a videotape showing A.R. and K.R., two of her sister’s daughters,
getting in and out of the shower. She showed the videotape to A.R. and K.R., who
then contacted the police. A search of Gool’s house revealed a cache of videotapes
recorded by Gool’s hidden camera and more than sixty thousand images of child
pornography stored on a computer.

       A federal grand jury indicted Gool on two counts of sexual exploitation of a
minor, in violation of 18 U.S.C. § 2251(a) (Counts I and II), one count of receiving
child pornography, in violation of 18 U.S.C. § 2252(a)(2) (Count III), and one count
of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count
IV). Following his indictment, Gool filed a motion to dismiss Count I, arguing that
it was barred by the five-year statute of limitations set out in 18 U.S.C. § 3282(a). In
particular, Gool alleged that A.R. had stated to law enforcement officers that she was
wearing braces in the relevant videotapes and that her braces were removed in 1996,
when she was fourteen. Gool further alleged that K.R. had told the police that all of
the videotapes in which she appears show her without a navel piercing, which she
obtained before her seventeenth birthday on July 10, 2001. Gool argued that because
he was not indicted until July 11, 2006, all of the conduct charged in Count I took
place outside of the five-year limitations period.

       Noting that Gool had made a “logical argument concerning a violation of the
statute of limitations,” the district court2 ordered the Government to identify the
specific videotapes on which it intended to rely to prove the allegations charged in
Count I of the indictment.3 Before the Government responded to this order, Gool and

      2
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
      3
        Gool subsequently expanded his motion to dismiss to include Count II. The
parties do not dispute that the statute of limitations analysis is identical with respect
to Counts I and II.

                                          -2-
the Government negotiated a plea agreement. Under the agreement, Gool agreed to
plead guilty to Counts III and IV and waive his right to appeal his sentence, and the
Government agreed to move to dismiss Counts I and II. Gool pled guilty to Counts
III and IV on April 24, 2007.

       Before sentencing, the United States Probation Office prepared a Presentence
Investigation Report (“PSR”). The PSR reported that A.R. and K.R. had made
statements to law enforcement officials that were substantially similar to the
statements Gool alleged in his motion to dismiss. The PSR also identified dental
records confirming that A.R.’s braces had been removed more than five years before
Gool was indicted. Gool’s attorney did not seek to withdraw Gool’s guilty pleas after
reviewing the PSR. On April 18, 2008, the district court sentenced Gool to 220
months’ imprisonment on Count III and 120 months’ imprisonment on Count IV,
ordering the sentences to be served concurrently. On the Government’s motion, the
district court then dismissed Counts I and II.

       The Supreme Court issued three significant sentencing decisions during the
period between Gool’s guilty pleas in April 2007 and his sentencing in April 2008:
Rita v. United States, 551 U.S. 338 (2007), Gall v. United States, 552 U.S. 38 (2007),
and Kimbrough v. United States, 552 U.S. 85 (2007). After his sentencing, Gool
appealed, challenging the reasonableness of his sentence in light of Rita, Gall, and
Kimbrough. The Government moved to dismiss Gool’s appeal, arguing that the
appeal waiver prohibited Gool from appealing his sentence. We granted the
Government’s motion and dismissed Gool’s appeal. United States v. Gool, No. 08-
2135 (8th Cir. Aug. 6, 2008) (unpublished order).

       Gool then filed a counseled motion to vacate, correct, or set aside the sentence
under 28 U.S.C. § 2255. Gool argued that the prosecutor’s failure to disclose that the
conduct alleged in Counts I and II took place more than five years before Gool was
indicted amounted to prosecutorial misconduct. Gool also argued that his defense

                                         -3-
attorney was ineffective for failing to “move to reform or withdraw the plea agreement
or the guilty plea itself.” Gool maintained that on reviewing the PSR his attorney
should have recognized that the district court would have dismissed Counts I and II
on statute of limitations grounds even without the Government’s motion and that Gool
therefore received no consideration in exchange for agreeing to waive the right to
appeal his sentence. Consequently, Gool argued that his attorney should have
“move[d] to withdraw the appeal waiver in order to preserve [Gool’s] right to appeal
the sentence” under Rita, Gall, and Kimbrough. The district court denied Gool’s
motion but granted Gool a certificate of appealability on his ineffective assistance of
counsel claim.

      In his briefs on appeal, Gool focuses almost exclusively on his prosecutorial
misconduct claim. We will not consider this issue, however, because “[w]e limit our
appellate review to the issues specified in the certificate of appealability.” See Harris
v. Bowersox, 184 F.3d 744, 748 (8th Cir. 1999). In fact, we specifically denied Gool’s
motion to expand the certificate of appealability to include his prosecutorial
misconduct claim, and we are troubled by his attempt to resurrect it.

       The discussion of ineffective assistance of counsel in Gool’s briefs essentially
is limited to the following sentence: “If Attorney Treimer had taken steps to expose
the running of the five-year limitation, Mr. Gool could have pled open to Counts
Three and Four, or entered a plea agreement to those counts that did not require an
appeal waiver.” From this statement, we discern that Gool does not want to go to trial
on Counts III and IV. Rather, Gool seeks to plead guilty to those counts without
waiving his right to appeal so that he can then challenge the reasonableness of his
sentence in light of Rita, Gall, and Kimbrough. The basis on which he seeks to obtain
this relief is less than clear from his briefs. As best we can tell from his § 2255
motion, Gool’s theory is that his attorney was ineffective for failing to move to
withdraw Gool’s guilty pleas to Counts III and IV before sentencing because the
dental records identified in the PSR supported his motion to dismiss Counts I and II.

                                          -4-
Gool’s argument is premised on the assumption that the district court would have
inevitably dismissed Counts I and II, which purportedly leads to the conclusion that
Gool received no consideration in exchange for waiving his right to a direct appeal.

      “We review the district court’s denial of § 2255 relief de novo.” United States
v. Davis, 508 F.3d 461, 463 (8th Cir. 2007) (citing Williams v. United States, 452 F.3d
1009, 1012 (8th Cir. 2006)). To prevail on his ineffective assistance of counsel claim,
Gool must establish that his attorney’s performance was deficient and that he was
prejudiced by this deficient performance. See Strickland v. Washington, 466 U.S. 668,
687 (1984). We turn first to his attorney’s performance.

        “Reasonable performance of counsel includes an adequate investigation of
facts, consideration of viable theories, and development of evidence to support those
theories.” Lyons v. Luebbers, 403 F.3d 585, 594 (8th Cir. 2005) (quoting Foster v.
Lockhart, 9 F.3d 722, 726 (8th Cir. 1993)). In reviewing counsel’s performance, we
“must indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound . . . strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)).

       We reject Gool’s suggestion that his attorney was ineffective for failing to
realize, based on the marginal additional information contained in the PSR (i.e., the
dental records), that Gool received no consideration in exchange for his appeal waiver.
Gool’s motion to dismiss reveals that his attorney was aware of, and actually asserted,
the potentially valid statute of limitations defense (and significant facts supporting this
defense) before Gool accepted the plea agreement. While the dental records identified
in the PSR tended to corroborate the assertions made in Gool’s motion to dismiss, the
PSR did not present a novel basis for the statute of limitations defense—indeed, the



                                           -5-
motion to dismiss asserted that A.R.’s braces had been removed more than five years
before Gool’s indictment.

       Moreover, it was far from certain that the district court would have dismissed
Counts I and II on statute of limitations grounds.4 Thus, the Government’s agreement
to move to dismiss those counts removed any residual uncertainty. Because Counts
I and II each carried a fifteen-year mandatory minimum sentence, see 18 U.S.C.
§ 2251(e), the dismissal of these counts was a substantial benefit to Gool.5 In
addition, not only did the Government move to dismiss Counts I and II, it also agreed
not to pursue any further charges against Gool arising out of its investigation of this
case. Accordingly, we conclude that Gool received valuable consideration in
exchange for his agreement to plead guilty and waive his right to appeal. Under the
circumstances, Gool has not shown that his counsel’s decision not to move to
withdraw Gool’s guilty pleas after reviewing the PSR fell outside “the wide range of
reasonable professional assistance.” See Strickland, 466 U.S. at 689; see also
Williams v. United States, 343 F.3d 927, 928-29 (8th Cir. 2003) (per curiam) (“It was


      4
        The Government disputes whether the statute of limitations had run on the
crimes charged in Counts I and II, arguing that an extended statute of limitations
applies to these counts because they involved the sexual abuse of children. See 18
U.S.C. § 3283 (“No statute of limitations that would otherwise preclude prosecution
for an offense involving the sexual or physical abuse, or kidnaping, of a child under
the age of 18 years shall preclude such prosecution during the life of the child, or for
ten years after the offense, whichever is longer.”). Gool counters that sexual
exploitation does not qualify as physical or sexual abuse and that § 3283 is therefore
inapplicable. Because we conclude that Gool has failed to demonstrate ineffective
assistance of counsel regardless of the applicable statute of limitations, we need not
decide whether § 3283 applies to the crime of sexual exploitation of a minor.
      5
       Although the district court ultimately sentenced Gool to a term of
imprisonment exceeding fifteen years, the plea agreement allowed Gool’s attorney to
request a sentence of 97 months’ imprisonment, or just over half of the 180-month
mandatory minimum sentence he would have faced under Counts I and II.

                                          -6-
a reasonable strategy for the lawyer to advise Williams to maintain his guilty plea
because . . . [i]f Williams had withdrawn his guilty plea . . . and had been convicted
of trafficking any quantity whatsoever of powder cocaine, his Guidelines
imprisonment range . . . would have been [significantly higher] . . . .”) (citation
omitted).

      Because Gool has failed to demonstrate deficient performance, we need not
address prejudice. See Strickland, 466 U.S. at 697 (“[T]here is no reason for a court
deciding an ineffective assistance claim to approach the inquiry in the same order or
even to address both components of the inquiry if the defendant makes an insufficient
showing on one.”).

     For the foregoing reasons, we affirm the district court’s denial of Gool’s § 2255
motion.
                     ______________________________




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