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Bueno v. United States

United States District Court, E.D. Virginia, Norfolk Division

January 13, 2017

EDUARDO BUENO, Petitioner,



         This matter comes before the court on the Petitioner's pro se "Motion to Vacate, Set Aside, or Correct Sentence" ("Motion"), filed on November 14, 2016, and accompanying Memorandum in Support ("Memorandum"). ECF Nos. 44, 45.[1]Also before the court is the Petitioner's Motion for Transcripts, ECF No. 4 6, and Motion to Expand the Record. ECF No. 47. For the reasons set forth below, the court DENIES the Petitioner's motions.


         In October 2015, Google became aware that child pornography was being saved to a Google user's storage account. Statement of Facts ¶ 1. Google informed the National Center for Missing and Exploited Children ("NCMEC"), which tied the information to a previous report of child exploitation linked to the same e-mail account. Id. Google determined that the user of the account provided additional information when he registered for the account, including that his name was Eduardo Bueno. Id. Many e-mails sent to the account addressed the recipient as "Eduardo." Id. ¶ 8.

         The Petitioner is a registered sex offender, who resided in Portsmouth, Virginia. Id. ¶ 2. In 2001, he was convicted of indecent assault and battery on a child under the age of fourteen, in violation of Chapter 265, Section 13B, of the laws of Massachusetts. Id. ¶ 2. Bail court documents allege that the Petitioner repeatedly raped his then-girlfriend's daughter over a two-year period, when the daughter was between six and eight years old. PSR ¶ 37.

         According to NCMEC report #6813709, the e-mail account user uploaded three files of images of minors engaging in sexually explicit conduct between November 14, 2014, and January 11, 2015. Statement of Facts ¶ 3. According to NCMEC report #6752734, the user uploaded to an e-mail an image of minors engaging in sexually explicit conduct on October 6, 2015. Id. ¶ 4. The account was accessed by Cox IP address Id. On November 6, 2015, Cox responded to a subpoena related to the subscriber of that IP address. Id. ¶ 5. Cox reported that the account was associated with a rental unit where the Petitioner resided, and had been activated on September 17, 2015. Id.

         On November 19, 2015, Homeland Security Investigations ("HSI") applied for and received a search warrant from the United States District Court for the Eastern District of Virginia for the contents of the e-mail account. Id. ¶ 6. The search warrant was issued to Google that same day. Id. On December 3, 2015, HSI received the contents of the e-mail account and discovered numerous additional e-mail accounts from which the account received and distributed child pornography. Id. ¶ 7. Most images were sent and received via e-mail attachments during 2014 and early 2015. Id. The user later provided images and videos containing child pornography via Google communities. Id. The account also contained e-mails discussing trading child pornography. Id. In one e-mail, the Petitioner boasted to the recipient that he had abused a child who attended his daughter's birthday party. PSR ¶ 8. In other e-mails, he implies that he abused another girl he describes as "the niece, " and describes sexually abusing "little girls in the pool." Id.

         On January 5, 2016, HSI and other law enforcement executed a search warrant at the Petitioner's residence and an arrest warrant for the Petitioner.[2] Statement of Facts ¶ 9. The Petitioner was administered his Miranda rights, and then spoke with HSI. Id. He admitted to trading images of minors engaging in sexually explicit conduct, and stated that he used his cellular phone to do so. Id. HSI then seized the Petitioner's phone. Id.

         Analysis of the Petitioner's phone confirmed that he used it to trade and store child pornography. Id. ¶ 10. The investigation revealed that on or about October 1, 2015, the Petitioner distributed visual depictions of child pornography, including the following files: Video[JANE DOE]4.avi, Spongebob%20Tied.wmv, and dghjg.mp4. Id. ¶ 11. The Petitioner knew that the visual depictions and images contained in his e-mail account and on his cellular phone were images depicting actual minors engaged in sexually explicit conduct. Id. ¶ 13.

         An eight-count indictment was returned on January 20, 2016. ECF No. 14. The indictment charged the Petitioner with seven counts of distribution of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2), and 2256(1) and (2), and one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B), and 2256(1) and 2. See id. No motions to suppress were filed, and on February 12, 2016, the Petitioner appeared before Magistrate Judge Douglas E. Miller for a Rule 11 hearing. ECF No. 22. The Plea Agreement and Statement of Facts were filed with the court that same day. ECF Nos. 22, 23.

         On May 31, 2016, the Petitioner appeared before this court for sentencing. In his Position Paper filed prior to sentencing, the Petitioner lodged a single objection to the PSR. ECF No. 31. He objected to the allegation, in paragraph fifteen of the PSR, that he had sexually abused his daughter. Id. As recognized by the court and the parties, any ruling on this objection did not affect the Petitioner's Guidelines calculation for sentencing, and the allegation was not considered for purposes of sentencing. The court imposed a forty-year term of incarceration, and a lifetime term of supervised release. ECF Nos. 34, 37. The court entered a Restitution Order in the amount of $1, 000 and a Consent Order of Forfeiture. ECF No. 37. The court did not impose a fine. Id. The Petitioner did not file an appeal.

         On October 14, 2016, the Petitioner filed a Motion requesting leave to file a forty-five page memorandum in support of his § 2255 motion. ECF No. 40. On October 21, 2016, the court issued an Order Striking Pleadings for failure to serve the United States Attorney. ECF No. 41. The Petitioner corrected the defect, ECF No. 42, and the court granted the Motion on November 7, 2016. ECF No. 43. On November 14, 2016, the Petitioner filed pro se a "Motion to Vacate, Set Aside, or Correct Sentence, " ECF No. 44, an accompanying Memorandum in Support, ECF No. 45, a Motion for Transcripts, ECF No. 46, and a Motion to Expand the Record, ECF No. 47. For the reasons set forth below, the court DENIES the Petitioner's motions.


         The Petitioner's § 2255 Motion alleges several trial errors for which no contemporaneous objection was made, and no direct appeal was filed. Accordingly, he must show "cause excusing his procedural default" and "actual prejudice resulting from the errors." United States v. Frady, 456 U.S. 152, 168 (1982) (internal quotations omitted); see also United States v. Maybeck, 23 F.3d 888, 891 (4th Cir. 1994) (holding that the Frady "cause and prejudice standard" applies on collateral challenges to unappealed guilty pleas). In the absence of cause and prejudice, a challenger must demonstrate "that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack." United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999). The cause for a procedural default "must turn on something external to the defense, " and an attempt to demonstrate a miscarriage of justice "must show actual innocence by clear and convincing evidence." Id. However, a claim asserting ineffective assistance of counsel is properly raised in a § 2255 motion and need not clear the procedural default bar. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) ("[I]t is well settled that a claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance.") (internal quotations omitted).

         To claim ineffective assistance of counsel, a petitioner must show, by a preponderance of the evidence, that (1) the attorney's performance was seriously deficient; and (2) such deficient performance prejudiced the petitioner by undermining the reliability of the judgment against him. Strickland v. Washington, 466 U.S. 668, 687 (1984).

         To show deficient performance, counsel's actions or omissions must be measured against what "an objectively reasonable attorney would have done under the circumstances existing at the time of the representation." Savino v. Murray, 82 F.3d 593, 599 (4th Cir. 1996); see also Lawrence v. Branker, 517 F.3d 700, 708-09 (4th Cir. 2008). The court must attempt to "eliminate the distorting effects of hindsight, " and instead "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.

         To demonstrate prejudice, a petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In doing so, he "must show that the error worked to his 'actual and substantial disadvantage, ' not merely that the error created a 'possibility of prejudice.'" Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997) (quoting Murray v. Carrier, 477 U.S. 478, 494 (1986)). A failure to carry the burden of proof as to one prong precludes relief and relieves the court of the duty to consider the other. Strickland, 466 U.S. at 700. Because, in this case, the Petitioner was sentenced following his guilty plea, he must also demonstrate "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 (1989).

         To evaluate the likelihood that a defendant would actually have gone to trial, the court must assess "the likelihood of success of a particular investigation or strategy." Reid v. True, 349 F.3d 788, 798 (4th Cir. 2003). A challenger "must convince the court that such a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010). The "challenger's subjective preferences, therefore, are not dispositive; what matters is whether proceeding to trial would have been objectively reasonable in light of all of the facts." United States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012).


         The Petitioner contends that he was denied effective assistance of counsel.[3] He cites fifteen errors made by his attorney. For the reasons set forth below, Ground One of the Petitioner's Motion is denied.

         Error One

         The Petitioner alleges that his counsel rendered ineffective assistance because she initially told him that he "would have to plead guilty" to possession of child pornography, but later produced a Plea Agreement under which he would enter a guilty plea to distribution of child pornography and told him that possession was equivalent to distribution. Mem. at 2. According to the Petitioner, he suffered prejudice when he received a five-level enhancement under United States Sentencing Guideline ("U.S.S.G.") § 2G2.2 (b) (3) (B) for use of a computer or interactive computer service relating to the child pornography. Mem. at 2.

         To show deficient performance, counsel's actions must have been professionally unreasonable. Savino, 82 F.3d at 599. A defense attorney cannot merely conjure the plea agreement to which she believes her client is entitled; she can only offer what the government offers. Counsel who initially suggests the possibility of a favorable plea bargain, but can later only extract a less favorable agreement from the government, has not acted unreasonably. Moreover, to the extent that counsel suggested that the Petitioner's mere receipt of his child pornography would suffice to establish a violation of 18 U.S.C. § 2252(a) (2), she was not in error. The statute applies to any person who "knowingly receives, or distributes" child pornography via interstate commerce. 18 U.S.C. § 2252(a)(2). The Petitioner's possession of child pornography via his Google account is, without more, a valid basis for conviction under the statute. See United States v. Schnittker, 807 F.3d 77, 81 (4th Cir. 2015) (describing 18 U.S.C. § 2252(a)(2) as criminalizing "receipt of child pornography"). Accordingly, the Petitioner has not shown deficient performance.

         To show prejudice, a challenger must show that absent counsel's errors, the results of the proceeding would have been different. The distribution enhancement is proper even where the Petitioner had only been convicted of receipt of child pornography. See United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008) ("Sentencing judges may find facts relevant to determining a Guidelines range by a preponderance of the evidence, so long as that Guidelines sentence is treated as advisory and falls within the statutory maximum authorized by the jury's verdict."). Furthermore, the Petitioner's guilty plea could not have been predicated on the absence of this enhancement, because the PSR was prepared months after entry of his plea. Importantly, the Petitioner did not receive a sentence greater than the maximum of which he was advised during the Rule 11 hearing. Accordingly, he has not shown prejudice.

         Error Two

         The Petitioner alleges that he suffered constructive denial of counsel because his attorney "deliberately failed" to investigate and test the evidence against him, or to negotiate with the United States. Mem. at 3. The Petitioner supports this claim by arguing that the Plea Agreement did not recommend a term of incarceration more lenient than provided under the statute. Id. He argues that "no sane man pleads guilty to in turn receive the maximum penalty, " and that in the absence of this error, he would have rejected the bargain and proceeded to trial.[4] Id. As discussed herein, the Petitioner knowingly and voluntarily did plead guilty, after being advised that he could receive the maximum statutory penalty of forty (40) years.[5]

         Constructive denial of counsel occurs "when a lawyer entirely fails to subject the prosecution's case to meaningful adversarial testing" such that they might as well be absent from the proceedings. Glover v. Miro, 262 F.3d 268, 275 (4th Cir. 2001) (quoting United States v. Cronic, 466 U.S. 648, 659 (1984)). The record undermines the Petitioner's assertion that his counsel "did absolutely nothing." See Mem. at 3. The Plea Agreement resulted in the dismissal of seven counts, each of which carried a decades-long term of incarceration. The Petitioner benefitted from a three-level reduction in his Total Offense Level for acceptance of responsibility. PSR ¶¶ 33, 34. His guilty plea spared him and his family the indignity of having the lurid details of his egregious sexual misconduct aired at trial. His counsel advocated for reduced term of incarceration, and at sentencing requested that the court not impose specific terms of supervision relating to technology at that time. ECF No. 31. The record demonstrates that the Petitioner benefitted from the assistance of his counsel throughout the proceedings. Additional inquiry into the government's evidence would have been fruitless, given the unambiguous results of the thorough investigation, the Petitioner's confession, and the utter lack of any cogent exculpatory evidence or mitigating factors.[6] Therefore, he has not shown ineffective assistance or constructive denial.

         Moreover, the Petitioner's decision to sign the Plea Agreement, and express satisfaction and understanding with its terms at the Rule 11 hearing, are inconsistent with his position now. He cannot simply decide, months after the fact, that he now regrets the bargain that he struck or that he previously held undisclosed reservations which render his plea or sentence unconstitutional. See Burket v. Angelone, 208 F.3d 172, 191 (4th Cir. 2000) ("Absent clear and convincing evidence to the contrary, [a party] is bound by the representations he made during the plea colloquy."). The fact that the Petitioner ultimately received the maximum term of incarceration authorized by statute on the charge to which he pled guilty demonstrates the gravity of his conduct, not the ineffectiveness of his counsel. There is no question that he understood the terms and consequences of his plea. See Mem. at 17 (stating that "the Movant was admonished of the consequential nature of the plea (i.e., 15-40 yrs)").

         The Petitioner had no right to enter into any particular plea bargain, let alone a more favorable one than he received. Weatherford v. Bursey, 429 U.S. 545, 561 (1977). Even if he had entered into a different plea agreement with the United States, he would not have been entitled to court approval of the agreement. See Fed. R. Crim. P. 11(c)(3).[7]

         To demonstrate that he would have rejected the Plea Agreement and gone to trial, the Petitioner must show that "proceeding to trial would have been objectively reasonable in light of all of the facts." Fugit, 703 F.3d at 260. This he has not done. He has merely asserted, without any explanation, that had a particular "error" not occurred, he would have proceeded to trial. Doing so would not have been reasonable, given the quantity and quality of the evidence against him, the lack of any rational defense, and the fact that a guilty verdict on multiple counts would almost certainly have resulted in the Petitioner's incarceration for the rest of his natural life, while the Plea Agreement affords him some chance of being released from prison. See Christian v. Ballard, 792 F.3d 427, 453 (4th Cir. 2015) (affirming state court's denial of ineffective assistance claim based on "overwhelming" evidence of guilt and potential lengthy term of incarceration avoided).

         Error Three

         The Petitioner alleges that his counsel was ineffective because she did seek to strike the Plea Agreement's language affirming that counsel rendered effective assistance. Mem. at 5. The essence of the Petitioner's argument appears to be that his counsel acted in her own interests, not his, and that this language was an intrusion into his attorney-client relationship and created a conflict of interest. Id.

         This clause is standard in plea agreements, and it is intended to ensure that the defendant does not enter into a plea agreement, if he is unsatisfied with his counsel's performance. See, e.g., Laposay v. United States, Nos. 1:12-cr-146, l:15-cv-275, 2016 WL 2946175, at *5 (E.D. Va. May 19, 2016) (O'Grady, J.). It serves much the same function as the Rule 11 hearing. Id. The presence of this agreed-upon term does not demonstrate counsel's deficient performance. Nor does it intrude into his attorney-client relationship or violate the Sixth Amendment. A defendant is given, as was the Petitioner here, an opportunity on the record, under oath, to agree or not with this term of the Plea Agreement.

         Moreover, this language does not "protect[] counsel against any future ineffective assistance claim, " as the Petitioner asserts. Mem. at 5. A lawyer who renders ineffective assistance is accountable in a habeas corpus proceeding and, therefore, cannot be protected from such a claim. The presence of the aforesaid language in the Plea Agreement did not create an actual or potential conflict of interest between the Petitioner and his counsel.

         Error Four

         The Petitioner alleges that his counsel rendered ineffective assistance because she failed to fully explain the scope of the Plea Agreement's waiver. Mem. at 7. The Petitioner asserts that he asked his counsel to explain the FOIA waiver to him, and his counsel provided an inadequate explanation. Id. He claims that but for this error, he would not have entered a guilty plea and would instead have proceeded to trial. Id.

         He has not here alleged, much less demonstrated, the existence of any government misconduct or exculpatory evidence that might be uncovered. Further, he has not shov/n that in the absence of any indication that he would ever, under any circumstance, be able to use FOIA to his advantage, it would have been reasonable for him to reject the Plea Agreement and proceed to trial on the eight counts he faced. Fugit, 703 F.3d at 260. A FOIA waiver has little, if any, bearing on the Petitioner's guilt and acceptance of the guilty plea. Prejudice here is far-fetched.

         Moreover, the Petitioner does not allege that counsel answered his question incorrectly or that he attempted to ask counsel to further explain her comments. He merely implies that he has now realized that he could have used FOIA to uncover still-unknown evidence of misconduct. Counsel has not rendered ineffective assistance simply because the Petitioner failed to identify this new theory sooner. Cause for this failure is likewise far-fetched.

         Error Five

         The Petitioner alleges that his counsel performed deficiently when she failed to file a motion to exclude the Petitioner's statements to law enforcement. Mem. at 9. According to the Petitioner, in January 2016, he was "bombarded by two FBI agents, " and then "immediately requested an attorney." Id. At that point, a "State Trooper . . . criminally coerc[ed]" him by threatening to bring charges if the Petitioner failed to "cooperate with them." Id.

         To support a finding of deficient performance of counsel, an unfiled suppression motion must have been meritorious and likely to have been granted, and there must be a reasonable probability that the motion would have affected the matter's outcome. Grueninger v. Director, Va. Pep't of Corrs., 813 F.3d 517, 525 (4th Cir. 2016). The record describes only one interaction with law enforcement in January 2016.[8] Statement of Facts ¶ 9.[9] On January 5, 2016, law enforcement executed a search warrant at the Petitioner's residence and an arrest warrant for the Petitioner, and "[a]fter being administered his Miranda rights, [the Petitioner] spoke with HSI, " and admitted to trading child pornography. Id. The record does not show that the Petitioner invoked his right to counsel or made any request for representation.[10] See Statement of Facts ¶ 9. Therefore, the motion would have lacked merit and would not have been granted. Even had the motion been granted, and his statements had occurred, the volume of inculpatory evidence would have prevented it from changing the outcome of this case.

         Error Six

         The Petitioner alleges that his counsel suffered from a conflict of interest because her "interest in a plea of guilty and her private pecuniary interests conflicted with [his] penal interest." Mem. at 11. He states that his lawyer "duped [him] into a plea, so that she received every penny of the monies given to her for" subpoenas and motions. Id. at 13.

         A conflict of interest may exist where there is an actual conflict between "an attorney's private interests and those of the client." United States v. Magini, 973 F.2d 261, 264 (4th Cir. 1992) . A Sixth Amendment violation only occurs, however, when the conflict adversely affects counsel's performance. Id. To show that the conflict adversely affected counsel's performance, a challenger "must identify a plausible alternative defense strategy or tactic that his defense counsel might have pursued, " "must show that the alternative strategy or tactic was objectively reasonable under the facts of the case known to the attorney, " and "must establish that the defense counsel's failure to pursue that strategy or tactic was linked to the actual conflict." Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001) .

         The Petitioner assumes, without any basis in fact, that his counsel, a federal public defender, received some amount of money to use for his defense, but chose to keep it for herself rather than spend it to investigate his case. He has not made such a showing. The Petitioner's counsel did not, and could not, benefit financially in the manner he has described. Accordingly, he has not demonstrated that a conflict existed.

         The Petitioner alleges that his counsel's conflict caused her to inadequately investigate his so-called "alternative perpetrator defense." Mem. at 11. This theory posits that, the Wi-Fi at the Petitioner's house, as well as his cellular phone and e-mail accounts, were all accessible to third parties, and therefore he did not possess them, or, on some other grounds, there is reasonable doubt as to his guilt. Id.

         The record suggests that counsel did not pursue this theory because it was implausible, not because of any conflict. The e-mail account used to trade child pornography in various forms for an extended period of time was registered under the Petitioner's name. Statement of Facts ¶¶ 1, 7. The account was used to distribute pictures of the Petitioner's own daughter, who was described in the e-mails as the sender's daughter. PSR ¶ 8. The e-mail account was accessed via an IP address registered to the Petitioner's residence. Statement of Facts at ¶¶ 4, 5. Correspondence sent to the e-mail address was often addressed to the Petitioner by name. Id. ΒΆ 8. When confronted ...

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