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Rideout v. Clarke

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

February 28, 2017

HAROLD CLARKE, Respondent.


          M. Hannah Lauck United States District Judge.

         Marvin Rideout, a Virginia inmate proceeding pro se, filed this petition for habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. 1), challenging his conviction in the Circuit Court of New Kent County of twenty counts of possession of child pornography. On January 17, 2017, the Magistrate Judge recommended that Respondent's Motion to Dismiss be granted and the action be dismissed. (ECF No. 18.) The Court advised Rideout that he could file objections within fourteen (14) days after the entry of the Report and Recommendation. On February 6, 2017, beyond the fourteen-day-period within which to file objections, Rideout requested an extension of time to file objections. (ECF No. 19.) The Court granted him an extension until February 17, 2017. On February 7, 2017, the Court received a Motion for Leave (ECF No. 21), a Motion to Amend (ECF No. 22), and an amended petition for a writ of habeas corpus under 28 U.S.C. § 2254 Petition (Amended § 2254 Petition, ECF No. 22-1). While the Motion for Leave and Motion to Amend will be GRANTED, the Court finds that the Amended § 2254 Petition suffers from the same deficiencies identified by the Magistrate Judge in the Report and Recommendation. Accordingly, for the reasons that follow, the Report and Recommendation will be ACCEPTED and ADOPTED, and the action will be DISMISSED.


         In his Report and Recommendation, the Magistrate Judge made the following findings and recommendations:

Rideout argues entitlement to relief on the following grounds:
Claim One: "Petitioner was denied effective assistance of counsel[1] during the suppression hearing and on direct appeal, when counsel failed to properly raise a procedural due process challenge to obtainment of evidence." (§ 2254 Pet. 6.)[2]
Claim Two: "The Supreme Court of Virginia denied Petitioner his statutory right to appeal." (Id. at 9.)
Claim Three: "Petitioner was denied effective assistance of counsel when counsel failed to challenge the chain of custody of the obtainment of the computer." (Id. at 10.)

         Respondent has moved to dismiss the action. (ECF No. 5). Rideout has responded.[3] For the reasons that follow, it is RECOMMENDED that the § 2254 Petition be DISMISSED because Claim Two provides no basis for federal habeas, relief and because Claims One and Three fail to demonstrate any ineffective assistance of counsel.

         A. Factual and Procedural History

         Pursuant to a conditional guilty plea, Rideout pled guilty to twenty counts of possession of child pornography. (ECF No. 7-1, at 1.) In exchange for his guilty pleas, the Commonwealth agreed to nolle prosequi an additional twenty counts of possession of child pornography, one count of distribution of child pornography, and two counts of distribution of child pornography second or subsequent violation. (Id.) The Circuit Court sentenced Rideout to 100 years in prison with 93 years suspended. (Id. at 4-5.)

         Rideout appealed his convictions. The Court of Appeals of Virginia aptly explained the evidence of Rideout's guilt as follows:

In this case, Sergeant Stephen Anders of the Bedford County Sheriffs Office (assigned to the Southern Virginia Internet Crimes Against Children Task Force) conducted an authorized, remote undercover investigation into the online sexual exploitation of children on the internet. On August 29, 2011, a certain internet protocol (IP) address of caught his attention. Sergeant Anders suspected that this IP address was involved in the collection and sharing of childpornography. On September 1, 2011, through a program called "Shareaza LE, "[4] Sergeant Anders was able to connect to, and begin downloading, a known file of child pornography from IP address of On September 2, 2011, and on September 4, 2011, Sergeant Anders again was able to connect to the IP address of and begin to download child pornography files.
Sergeant Anders also obtained and submitted an administrative subpoena to Cox Communications, the owner of the IP address at issue. In response to that administrative subpoena, Cox Communications informed Sergeant Anders that the IP address had been issued to Marvin Rideout of New Kent, Virginia.
On December 15, 2011, after verifying that "Marvin Rid3 in fact, the suspect detected by Special Agent Anders, Detective J. McLaughlin, III, of the New Kent County Sheriffs Office, obtained a search warrant for appellant's residence.[5] Detective McLaughlin executed the search warrant at appellant's residence on the following morning. When Detective McLaughlin explained to appellant why he was there, appellant put his head down and said, "I have been waiting for y'all to come." Sergeant Anders then analyzed various electronic items seized from appellant's home, finding many images and movies depicting child pornography.
Appellant filed a pre-trial motion to suppress the three files of child pornography giving rise to the search warrant (ie., the files that Sergeant Anders was able to access on September 1, 2, and 4 of 2011), as well as all of the files found as a result of execution of the search warrant. At the suppression hearing, appellant testified that he had downloaded a software program called "Shareaza" somewhere between two and three years prior to the suppression hearing. Shareaza is, according to appellant's expert Eric Myer, designed to facilitate the sharing of files - "it wants to share." As Sergeant Anders also explained, with respect to peer-to-peer sharing programs like Shareaza, "the whole purpose is for everybody to share." Appellant had previously use a peer-to-peer sharing program called Limewire for several years prior to downloading Shareaza, so he had several years of experience with peer-to-peer software. Appellant explained that, when he initially downloaded the Shareaza software, he had applied settings that he thought would prevent others from being able to access files on his computer. According to the theory advanced by appellant at the suppression hearing, despite selecting settings on Shareaza to prevent sharing, however, when appellant changed the location of the downloads from the default destination, he inadvertently activated the sharing of that folder without receiving any notification that he was actually sharing files.[6] Thus, appellant claimed at the suppression hearing that he had been using the Shareaza software under the mistaken impression that he had set up Shareaza in a way that would prevent other users from gaining access to any files on his computer.
. .. Appellant argues that he nonetheless had a reasonable expectation of privacy relating to the contents of his personal computer, including the files depicting child pornography, because he contended that he had applied settings to Shareaza that he thought would prevent others from accessing those files on his computer. In overruling appellant's motion to suppress, the trial court stated as follows:
The Court makes the following findings: . . . The Court finds that the defendant had no reasonable expectation of privacy when he installed a software program on his computer which has the primary purpose to share information around other computer users. Number two, that the police did not act in an improper manner to obtain information from the defendant's computer. And therefore the motion to suppress is denied.

         (ECF No. 7-2, at 2-4.) The Court of Appeals of Virginia determined that the "trial court did not err when it denied [Rideout's] motion to [suppress]." (Id. at 1.) The Court of Appeals of Virginia explained:

"Since Katz v. United States, 389 U.S. 347 (1967), the touchstone of [Fourth] Amendment analysis has been the question whether a person has a 'constitutionally protected reasonable expectation of privacy.'" Oliver v. United States, 466 U.S. 170, 177 (1984) (quoting Katz, 389 U.S. at 360 (Harlan, J., concurring)). Thus,
in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has a "source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Minnesota v. Carter,525 U.S. 83, 88 (1998) (quoting Rakas v.Illinois, 439 U.S. 128, 143-44 n.12 (1978)); see also Smith v. Maryland,442 U.S. 735, 740-41 (1979)Appellant contends that, given his claim that he disabled the sharing features of Shareaza, he then retained a ...

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