United States District Court, W.D. Virginia, Roanoke Division
E. Conrad Chief United States District Judge
William A. White, a federal inmate proceeding pro se, moved
to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. The government filed a motion to dismiss, and
White responded. Accordingly, this matter is ripe for
disposition. Upon review of the record, the court concludes
that White's claims lack merit, and the government's
motion to dismiss must be granted.
February 7, 2013, a federal grand jury indicted White on four
counts of making extortionate communications through
interstate and foreign commerce, in violation of 18 U.S.C.
§ 875(b) and 2. These charges stemmed from four emails
that White sent threatening injury to his ex-wife if she did
not send him "alimony" payments. Indictment at 2-3,
ECF No. 1. White traveled to Mexico to avoid serving a
sentence in a separate pending federal case. He was arrested
in Mexico and extradited to the United States. Trial Trans,
at 274-77, ECF No. 182.
proceeded to trial before Senior United States District
Judge, James C. Turk. The government presented testimony from
White's ex-wife, who explained that she had received
emails from her ex-husband's email address,
email@example.com, threatening her with physical harm if she
did not send him $400 a month. Tr. Trans, at 45-55. ECF No.
181. The government also called experts in internet tracking
to testify regarding where the emails originated, because
anonymizer technology had been used to mask the Internet
Protocol ("IP") addresses associated with the
emails sent. Tr. Trans, at 231-50 (testimony of Debra Healy,
computer forensic expert); Id. at 272-311 (testimony
of David Church, FBI agent assigned to the case).
theory of the case was that a friend, Sabrina Gnos, had taken
over his email account and sent the emails to his ex-wife to
get the money herself. White testified in his own defense and
admitted that he had called Gnos and asked her to find
someone to intimidate his ex-wife because his ex-wife had
stopped depositing money in his bank account, and he wanted
her to resume payments. Tr. Trans, at 45, ECF No. 170.
However, he denied sending any threatening emails to his
ex-wife. Id. at 19-20. White argued that Gnos had
written the emails and was trying to frame him. Id.
jury found White guilty. Verdict at 1-2, ECF No. 163. For
Counts One, Three, and Four, the jury concluded that White
was guilty of threatening his ex-wife with the intent to
extort money from her; for Count Two, the jury concluded he
was guilty of the lesser included offense of sending a
threatening email, without intent to extort. Id.
Probation Office prepared a presentence investigation report
("PSR"), recommending a total offense level of 26,
which included a two-point enhancement for obstruction of
justice for each of the four counts, a criminal history
category of IV, and an advisory guideline range of 92 to 115
months' imprisonment. PSR ¶ 67, ECF No. 201. Both
parties submitted sentencing memoranda to the court. White
objected to the obstruction of justice enhancements and
requested a downward departure or variance from his guideline
range. Sent. Memo, at 2-4, ECF No. 188. The government argued
that White should be sentenced as a career offender because
he had the requisite number of prior convictions for crimes
of violence. Sent. Memo at 7-8, ECF No. 189.
court held a sentencing hearing on May 1, 2014. The court
overruled the objections of both White and the government. It
held that the obstruction of justice enhancement was
appropriate because White knew "what [he] had done"
but tried to make the jury believe that someone else was
responsible. Sent. Hr'g Tr. at 33, ECF No. 214. In
addition, the court concluded that White should not be
sentenced as a career offender because at the time that he
committed the acts at issue in this case, he had been
acquitted of wrongdoing in a federal case, so he did not have
the requisite number of prior convictions. The court imposed
a guideline sentence of 92 months on each of Counts One,
Three, and Four and a term of 60 months on Count Two, to run
concurrently but consecutive to any other sentences that he
had received stemming from other convictions. Judgment at 3,
ECF No. 199.
appealed his conviction and sentence on multiple grounds,
including that the evidence was insufficient to support the
verdict and the obstruction of justice enhancement was
unwarranted, among others. United States v. White,
810 F.3d 212, 219-32 (4th Cir. 2016). The United States Court
of Appeals for the Fourth Circuit affirmed his conviction and
sentence. IcL at 232.
filed an amended § 2255 motion, raising 13 categories of
complaints, which include multiple sub-claims for relief.
Each category will be addressed in turn.
state a viable claim for relief under § 2255, a
defendant must prove: (1) that his sentence was "imposed
in violation of the Constitution or laws of the United
States;" (2) that "the court was without
jurisdiction to impose such sentence;" or (3) that
"the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack." 28
U.S.C. § 2255(a). White bears the burden of proving
grounds for a collateral attack by a preponderance of the
evidence. Miller v. United States, 261 F.2d 546, 547
(4th Cir. 1958).
A. Ineffective Assistance of Counsel Claims
defendants have a Sixth Amendment right to effective legal
assistance. Strickland v. Washington, 466 U.S. 668,
687 (1984). In order to establish a viable ineffective
assistance claim, a defendant must satisfy a two-prong
analysis: he must show both that counsel's performance
fell below an objective standard of reasonableness and that
he was prejudiced by counsel's alleged deficient
performance. Strickland, 466 U.S. at 669. When
considering the reasonableness prong of Strickland,
courts apply a "strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance." Id. at 689; see
also Gray v. Branker. 529 F.3d 220, 228-29 (4th Cir.
2008). Counsel's performance is judged "on the facts
of the particular case, " and assessed "from
counsel's perspective at the time." Id.
satisfy the prejudice prong of Strickland, a
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional error, the outcome
of the proceeding would have been different. Id. at
694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Id. White's claims of ineffective assistance of
counsel do not satisfy Strickland's stringent
Failing to Present Computer Forensic Evidence (White
Claims 1, 2 & 5)
argues that he received ineffective assistance because
counsel failed to investigate and present to the jury
evidence that his Facebook account and email account had been
used by others. Although counsel's strategy at trial was
that Gnos had used White's email account to send the
emails and not White, White argues that counsel should have
presented more technical data to the jury regarding the use
of his Facebook and email accounts and the use of anonymizer
technology. § 2255 Mot. at 15-23, ECF No. 300. This
claim is unavailing.
White agrees that his counsel's trial strategy of arguing
that Gnos sent the threatening emails was "correct,
" he contends that counsel's presentation of the
evidence was wholly lacking. § 2255 Mot. at 57, ECF No.
300. However, White admits that counsel hired a computer
expert to review the discovery. Id. at 12, Order at
2, ECF No. 75 (granting defense motion for expert). However,
counsel decided not to have the expert testify and White
presented no evidence that the expert uncovered any
exculpatory evidence that should have been presented at
trial. Instead, counsel cross-examined the government's
witnesses at trial to cast doubt on who authored and sent the
emails and had White testify in his own defense. Counsel
cross-examined Gnos to try to elicit testimony that she had
used White's email accounts, although Gnos denied it. Tr.
Trans, at 174, ECF No. 182. In addition, counsel
cross-examined the government's witness who testified
regarding the use of anonymizer technology, and questioned
why White would use technology to hide his identity and then
sign the emails with his name. Tr. Trans, at 18-19, ECF No.
must review defense counsel's decisions regarding the
investigation of a case "with an eye for
'reasonableness in all the circumstances, applying a
heavy measure of deference to counsel's
judgments.'" Bunch v. Thompson, 949 F.2d
1354, 1363 (4th Cir. 1991) (quoting Strickland, 466
U.S. at 691). The court concludes that counsel's decision
to focus on rebutting the government's evidence and not
to present evidence from the computer expert was a tactical
one. See Sexton v. French 163 F.3d 874, 887 (4th
Cir. 1998) ("The decision concerning what evidence
should be introduced [in criminal trial proceedings] is best
left in the hands of trial counsel, and reasonable tactical
decisions by trial counsel in this regard are binding on the
although White takes issue with the government's
evidence, claiming that it is insufficient to convict him,
the jury and the Fourth Circuit found otherwise. Accordingly,
the court concludes that counsel exercised professional
judgment in representing White, counsel's trial decisions
were guided by a "sound strategic motive, " and
counsel's representation did not fall below an objective
standard of reasonableness. Yarborough v. Gentry,
540 U.S. 1, 8 (2003).
Failure to Raise Authentication of Emails Concerns (White
argues that counsel provided ineffective assistance for
failing to challenge the authentication of the threatening
emails that constituted the basis for his conviction. The
Facebook and Yahoo! email records admitted at trial were
obtained pursuant to a search warrant and the government
submitted a notice regarding their authenticity as records of
regularly conducted business activity pursuant to Rule
902(11) of the Federal Rules of Evidence. Notices, ECF No.
99, 101. White is not arguing that the records from Facebook
and Yahoo! were provided in error or came from some other
email address or Facebook account.
White's authentication argument is essentially the same
argument that he made at trial, on appeal, and in his current
§ 2255 petition-that he did not author the emails or
Facebook posts and that the government failed to prove that
he did. Counsel attempted to cast doubt on whether White
authored the emails by cross-examining witnesses and argued
in closing that "he didn't send them." Tr.
Trans, at 20, ECF No. 235. The jury heard the evidence and
concluded that White was responsible, and the Fourth Circuit
affirmed that the evidence was sufficient to convict.
Accordingly, his counsel did not provide deficient
performance by failing to do more to challenge the
authenticity of the emails or to request a jury instruction
regarding authentication. Strickland. 466 U.S. at
Failure to Challenge Government's Attempts to Frame White
(White Claim 6)
argues that counsel provided ineffective assistance because
he did not challenge the fact that White had been "the
target of an FBI-JTTF counterintelligence operation" and
that the government has stolen his identity in order to
commit crimes and frame him. § 2255 Mot. at 65, 69, ECF
No. 300. White has faced numerous federal charges and has
been investigated for each one. However, his claims that the
Federal Bureau of Investigation ("FBI") targeted
him, framed him because of his beliefs, and prevented
witnesses from testifying in his defense are "palpably
incredible." Blackledge v. Allison. 431 U.S.
63, 76 (1977). He provides no proof, other than his personal
observations and assessments of various internet sites,
letters he claims were sent to people by the government but
in his name, and ...