United States District Court, E.D. Virginia, Alexandria Division
JAMES C. CACHERISSTATES DISTRICT COURT JUDGE
This matter is before the Court on Petitioner Robert Fenn’s motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. [Dkt. 121.] A jury convicted Petitioner of one count each of receipt of child pornography and possession of child pornography. Petitioner’s direct appeal was unsuccessful, as were two motions for a new trial. United States v. Fenn, 554 F. App’x 133 (4th Cir. 2014); United States v. Fenn, No. 1:12-cr-510, 2014 WL 1338672 (E.D. Va. Apr. 3, 2014), aff’d 584 F. App’x 114 (4th Cir. 2014). On May 4, 2015, Petitioner filed the present motion arguing that he received ineffective assistance of counsel at trial in violation of the Sixth Amendment of the United States Constitution. In response, the Court opened discovery and conducted an evidentiary hearing at which the parties presented stipulations, affidavits, exhibits, and oral argument. After careful consideration of the trial record and the evidence and arguments presented in these proceedings, the Court will grant the petition. Petitioner will be released from custody, unless, within 60 days, the Government initiates new trial proceedings against him.
On the morning of June 12, 2012, Homeland Security Investigations (“HSI”) executed a search warrant for child pornography related offenses at the Fenn residence in Fairfax County, Virginia. Husband and wife William and Catherine Fennlived there with their two sons, John and Robert, who were all home when HSI arrived. After a protective sweep, law enforcement officers interviewed the Fenn family members in an effort to identify who was responsible for the suspected child pornography activity. Robert Fenn (“Petitioner”) consented to an interview during which he told law enforcement he owned an Acer and a Powerspec desktop computer found in his room, but denied using those computers to access child pornography. Petitioner was then allowed to leave the house to attend work as a teacher at an elementary school in Fairfax, Virginia.
While Petitioner was at work, HSI conducted forensic previews of the computers found in the Fenn household. These previews discovered suspected child pornography on at least one device found in Petitioner’s bedroom. Knowing that Petitioner worked with children at an elementary school, law enforcement quickly went to the school to question Petitioner about the discovered images and videos. During the second interview, Petitioner admitted to downloading Hentai images, which are legal to possess, and images of girls ages nine to fourteen. However, he denied any knowledge of child pornography. When questioned about the file structures on his computers, Petitioner told the officers that he kept the Hentai images in folders labeled as “62” or “626” under a password-protected user account under the name “TREBOR” on his Acer and Powerspec computers. Petitioner explained that TREBOR is the backwards spelling of his first name, Robert.
Forensic analysis was performed on all of the computer devices found in Petitioner’s bedroom. That analysis discovered child pornography or suspected child pornography on the Acer desktop, the Western Digital loose hard drive, and a Samsung loose hard drive that was also found in Petitioner’s bedroom. The many images and videos of child pornography or suspected child pornography were discovered in the password-protected TREBOR user account saved within folders labeled “62” or “626” that also contained Hentai images.
In total, law enforcement officers seized approximately ten computers and eleven hard drives from the Fenn household. In addition to finding child pornography on the computer and loose hard drives seized from Petitioner’s bedroom, forensic analysis also discovered suspected child pornography on a computer belonging to Petitioner’s brother and on a Toshiba laptop belonging to the father, William Fenn (“the father”).
At trial, the Government presented evidence that Petitioner was responsible for receipt and possession of the many images and videos of child pornography found on the Acer computer seized from Petitioner’s room. As affirmative evidence implicating Petitioner, the Government emphasized that the Acer was seized from Petitioner’s room, that the child pornography was saved within Petitioner’s password-protected user account, and that the child pornography was saved within the folder that Petitioner admitted to saving images of Hentai and young girls. The Government also presented charts comparing the times of 231 child pornography downloads on the Acer desktop with times when Petitioner’s whereabouts were known. In one particularly compelling comparison, the charts showed that downloads did not occur when Petitioner was out of state at a convention, but that downloads resumed within an hour of his returning home. (Tr. 154-155.) In sum, the Government’s expert testified there was not a single time of download when Petitioner was known to be out of the Fenn house. (Tr. 155.)
The Government relied on the same charts to exclude the possibility that the brother or the father was responsible for the downloads on the Acer desktop computer. The Government produced evidence showing that the brother was known to be at work on three occasions when child pornography downloads occurred on the Acer desktop. The charts also indicated that the father was operating the Toshiba laptop computer or a Powerspec computer in the basement at the same time that five downloads occurred on the Acer desktop.
Petitioner’s trial counsel sought to create reasonable doubt as to who was responsible for the illegal activity on the Acer by presenting evidence that the father likely downloaded and viewed the child pornography. To support this defense theory, Petitioner testified that he kept the Acer desktop in the basement of the Fenn household until only days before HSI executed the search warrant. The mother and Petitioner’s friend corroborated that the Acer was kept in the basement. Trial counsel also elicited testimony that the father spent substantial time alone in the basement working with computers and on his HAM radio, knew the password to the TREBOR account, and had images of suspected child pornography within the thumb cache folder of his Toshiba laptop. Trial counsel relied heavily on this evidence during his closing argument to shift suspicion away from Petitioner and toward the father.
Trial counsel was unsuccessful in seeking to admit additional testimony that would have substantially implicated the father as the source of the downloads. On the morning of the second day of trial, trial counsel sought to question the mother about an out-of-court statement the father made after Petitioner’s arrest. (Tr. 220-222.) The Government objected on hearsay grounds. The Court then held a bench conference at which trial counsel proffered that the mother would testify that on the day after Petitioner’s arrest, the father told her and Petitioner that he “had been downloading child pornography onto computers.” (Tr. 220.) Trial counsel sought to admit the father’s confession as a statement against interest. (Id. at 221.) Trial counsel, however, had not attempted to procedure the father’s appearance or testimony and the father lived in the area local to the courthouse. (Id.) Thus, the Court concluded that the father was not “unavailable” for purposes of Federal Rule of Evidence 804(a) and sustained the hearsay objection.
After the two day trial, a jury convicted Petitioner of one count each of possession of child pornography and receipt of child pornography. He was subsequently sentenced to 120 months incarceration on each count to run concurrently, followed by a 20-year term of supervised release.
On April 17, 2013, Petitioner filed a motion for a new trial based on Brady violations. The Court denied this motion on May 9, 2013.
The United States Court of Appeals for the Fourth Circuit denied Petitioner’s direct appeal on February 4, 2014. United States v. Fenn, 554 F. App’x 133 (4th Cir. 2014).
On February 3, 2014, Petitioner filed his second motion for a new trial, this time based on newly discovered evidence that the father allegedly sexually abused his stepdaughters when they were the same age as the children depicted in the files found on the Acer desktop. The Court denied the motion and the Fourth Circuit affirmed. United States v. Fenn, No. 1:12-cr-510, 2014 WL 1338672 (E.D. Va. Apr. 3, 2014), aff’d 584 F. App’x 114 (4th Cir. 2014).
On May 4, 2015, Petitioner filed the present motion to vacate under 28 U.S.C. § 2255(a). (Petition [Dkt. 121]; Memo. in Supp. [Dkt. 122].) The motion argued that Petitioner’s trial counsel provided constitutionally ineffective assistance in three ways: (1) failing to interview and subpoena the father to testify; (2) failing to reasonably pursue an independent forensic examination of the computers and hardware at issue in this case; and (3) failing to pursue and present evidence of partial alibi defenses.
On May 18, 2015, Petitioner moved to reopen discovery to view and inspect the Acer desktop, Toshiba laptop, Western Digital loose hard drive, and Samsung loose hard drive to determine whether an examination of these devices would have produced exculpatory evidence. (Mem. in Supp. of Discovery [Dkt. 131] at 4.) By memorandum opinion on June 23, 2015, the Court reopened discovery as to those devices after finding that the motion was “reasonably calculated to produce evidence material” to the petition. Fenn v. United States, No. 1:12-cr-510, 2015 WL 3868583, at *3 (E.D. Va. June 23, 2015).
After conducting discovery, Petitioner motioned for an evidentiary hearing to investigate his claims of ineffective assistance. The Government conceded that a limited hearing was necessary and the Court conducted such a hearing on February 4, 2016. (Gov’t Sur-Reply [Dkt. 147] at 14.) At the hearing, both sides presented stipulations, exhibits, affidavits, and oral argument. Neither side presented witness testimony, although Petitioner was present and the ...