United States District Court, E.D. Virginia, Norfolk Division
OPINION AND FINAL ORDER
REBECCA BEACH SMITH CHIEF JUDGE
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.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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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 188.8.131.52. 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.
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.
January 5, 2016, HSI and other law enforcement executed a
search warrant at the Petitioner's residence and an
arrest warrant for the Petitioner. 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.
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.
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.
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.
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.
LEGAL STANDARDS FOR § 2255 MOTION
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).
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).
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.
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
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).
ANALYSIS OF § 2255 MOTION GROUND ONE
Petitioner contends that he was denied effective assistance
of counsel. He cites fifteen errors made by his
attorney. For the reasons set forth below, Ground One of the
Petitioner's Motion is denied.
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.
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
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
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. 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.
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. Therefore, he has not shown
ineffective assistance or constructive denial.
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.,
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.
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).
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.
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.
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.
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.
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.
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.
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."
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. Statement of Facts ¶
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. 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
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.
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) .
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
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
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.
¶ 8. When confronted ...