Carl Stephen Tisthammer v. United States of America

Filing 62

ORDER RE MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. SECTION 2255 by Judge Christina A. Snyder: Carl Tisthammer's motion pursuant to 28 U.S.C. Section 2255 482 is DENIED. (Made JS-6. Case Terminated.) (gk)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION
CARL STEPHEN TISTHAMMER

17

)
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES OF AMERICA.
)
)
)
Defendant.
)
)
)
_________________________________ )

18

I.

11
12
13
14
15
16

19

Case No. 2:14-CV-00271 CAS
Criminal Case No. 2:08-CR-00057-CAS-1
MOTION TO VACATE, SET ASIDE, OR
CORRECT SENTENCE PURSUANT TO
28 U.S.C. § 2255.

INTRODUCTION AND PROCEDURAL BACKGROUND
On January 16, 2008, the Government filed an indictment charging Carl Stephen

20

Tisthammer with production and possession of child pornography, in violation of 18

21

U.S.C. §§ 2251(a) and 2252A(a)(5)(B). 2:08-cr-00057-CAS-1 (“Criminal Case”), dkt.

22

9. On March 7, 2008, the Government filed a first superseding indictment. Criminal

23

Case, dkt. 18. On January 23, 2009, the Government filed a second superseding

24

indictment, adding a charge for receipt of child pornography, in violation of 18 U.S.C.

25

§ 2251(b). Criminal Case, dkt. 123.

26

At various times, the Court appointed seven different trial attorneys and one

27

appellate attorney to represent Tisthammer. See Criminal Case, dkts. 26, 43, 45, 77,

28

115, 200, 421. Prior to trial, Tisthammer filed a number of motions, including motions
O:\CAS\ECF Ready\Tisthammer 2255 FINAL.wpd

1

to dismiss the indictments based upon the purported denial of assistance of counsel,

2

violations of the Speedy Trial Act, and violations of the Sixth Amendment, Criminal

3

Case dkts. 193–95; motions to compel the production of evidence, Criminal Case dkts.

4

205–07; a motion to suppress evidence obtained from a purportedly unlawful search,

5

Criminal Case dkt. 207; and a motion to compel certain discovery, Criminal Case, dkt.

6

264. Each of the foregoing motions was denied. See Criminal Case dkts. 227, 236,

7

275, 300.
On March 19, 2010, after a jury trial, Tisthammer was convicted for the

8
9

production, receipt, and possession of child pornography, in violation of 18 U.S.C.

10

§§ 2251(b), 2252A(a)(2)(A), and 2252A(a)(5)(B). Criminal Case, dkt. 326. On

11

September 2, 2010, the Court sentenced Tisthammer to 35 years in prison. Criminal

12

Case, dkt. 385. On March 25, 2010, Tisthammer filed a motion for judgment of

13

acquittal or, in the alternative, for a new trial. Criminal Case, dkt. 336. On September

14

2, 2010, the Court denied Tisthammer’s motion. Criminal Case, dkt. 384. On

15

September 8, 2010, Tisthammer appealed his conviction and sentence. Criminal Case,

16

dkt. 383. On June 20, 2012, the Ninth Circuit affirmed Tisthammer’s conviction and

17

sentence. Dkt. 30, Ex. B.
On January 13, 2014, Tisthammer filed the instant motion to vacate, set aside or

18
19

correct the sentence pursuant to 28 U.S.C. § 2255. Dkt. 1. On February 3, 2014,

20

Tisthammer filed an accompanying memorandum. Dkt. 3 (“Mot.”). On February 1,

21

2015, the Government filed its opposition. Dkt. 30 (“Opp’n”). On July 27, 2015,

22

Tisthammer filed a reply. Dkt. 55 (“Reply”).

23

II.

24

LEGAL STANDARD
A prisoner may move the court which imposed his sentence to vacate, set aside or

25

correct the sentence if he can show “that the sentence was imposed in violation of the

26

Constitution or laws of the United States, or that the court was without jurisdiction to

27

impose such sentence, or that the sentence was in excess of the maximum authorized by

28

law, or is otherwise subject to collateral attack . . . .” 28 U.S.C. § 2255(a). A § 2255
O:\CAS\ECF Ready\Tisthammer 2255 FINAL.wpd

2

1

motion may be resolved without an evidentiary hearing if “the motion and the files and

2

records of the case conclusively show that the prisoner is entitled to no relief.” Id.

3

§ 2255(b).

4

III.

5

DISCUSSION
In his § 2255 motion, Tisthammer argues that relief is warranted because of

6

(1) actual innocence, (2) ineffective assistance of counsel, and (3) several other

7

purported problems with the evidence and the Government’s prosecution of the case.

8

The Court addresses each of Tisthammer’s arguments in turn.

9

A.

Actual Innocence

10

Tisthammer contends that he is entitled to § 2255 relief because he is actually

11

innocent. Mot. at 10. “[A]ctual innocence means factual innocence, not mere legal

12

insufficiency” of the evidence. Bousley v. United States, 523 U.S. 614, 623 (1998).

13

“To establish actual innocence, petitioner must demonstrate that, in light of all the

14

evidence, itis more likely than not that no reasonable juror would have convicted him.”

15

Id. (quotation marks and citation omitted).

16

Tisthammer does not contend that there is evidence proving his innocence.

17

Instead, Tisthammer argues that the filing of multiple superceding indictments is proof

18

of his actual innocence. Mot. at 5. Tisthammer’s argument is unpersuasive. “An

19

original indictment remains pending until dismissed and multiple indictments may

20

simultaneously be pending against the same defendant in the same case.” United States

21

v. Hickey, 580 F.3d 922, 929 (9th Cir. 2009) (quotation marks and citations omitted).

22

Ultimately, Tisthammer was convicted of all charges contained in the second

23

superseding indictment. That the other pending indictments were dismissed merely

24

ensured that no remaining charges were pending against defendant after his convictions.

25

Moreover, Tisthammer does not allege any new facts that would establish his innocence

26

of the charges in the second superseding indictment. In ruling upon Tisthammer’s

27

motion for judgment of acquittal after the jury trial, Criminal Case dkt. 336, the Court

28

observed that the evidence presented at trial demonstrated that Tisthammer exercised
O:\CAS\ECF Ready\Tisthammer 2255 FINAL.wpd

3

1

dominion and control over a computer containing child pornography and that

2

Tisthammer produced, received, and possessed the child pornography, id. dkt. 384.

3

Accordingly, Tisthammer is not entitled to § 2255 relief because of actual innocence.

4
5

B.

Ineffective Assistance of Counsel

6

Ineffective assistance of counsel constitutes a violation of the Sixth Amendment

7

right to counsel, and is, therefore, grounds for relief under § 2255. To establish

8

ineffective assistance of counsel, a petitioner must prove by a preponderance of the

9

evidence that: (1) counsel’s assistance was deficient because it fell below an objective

10

standard of reasonableness and (2) counsel’s assistance was prejudicial because there is

11

a reasonable probability that, but for counsel’s errors, the result of the proceeding would

12

have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). It is the

13

petitioner’s burden to establish both prongs. Id. at 697; United States v. Quintero-

14

Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).

15

First, Tisthammer argues that his trial counsel was ineffective because

16

Tisthammer’s attorneys did not challenge the validity of the search warrant or seek to

17

suppress the evidence obtained with the search warrant. Mot. at 10; Reply at 6.

18

Tisthammer’s argument is unpersuasive. Tisthammer himself filed a motion to suppress

19

evidence obtained from an unlawful search, arguing that the affidavit for the search

20

warrant contained misleading omissions and could not support probable cause.

21

Criminal Case, dkt. 207. After an evidentiary hearing, the Court denied Tisthammer’s

22

motion to suppress because Tisthammer failed to identify specific information omitted

23

from the affidavit that purportedly misled the magistrate judge in finding probable

24

cause; thus, Tisthammer failed to show that the search warrant affidavit lacked probable

25

cause. Criminal Case, dkt. 275. The Court’s ruling shows that Tisthammer’s challenge

26

was without merit. “The failure to raise a meritless legal argument does not constitute

27

ineffective assistance of counsel.” Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.

28

1989) (quotation marks and citation omitted). Therefore, Tisthammer’s counsel did not
O:\CAS\ECF Ready\Tisthammer 2255 FINAL.wpd

4

1

provide deficient assistance for failing to pursue challenges to the search warrant and

2

the evidence obtained with the search warrant. Moreover, Tisthammer has not put forth

3

any evidence of a reasonable probability that the outcome of the proceeding would have

4

been different, but for counsel’s failure to challenge the evidence obtained with the

5

search warrant. Tisthammer challenged the search himself and his motion was denied.

6

Criminal Case, dkts. 207, 275. Since Tisthammer can show neither deficiency nor

7

prejudice, it does not appear that Tisthammer’s counsel was ineffective for failing to

8

challenge the Government’s search.

9

Next, Tisthammer alleges that his counsel was ineffective because his attorneys

10

failed to object to “defective indictments.” Mot. at 10. Tisthammer does not specify

11

how the indictments were defective, but appears to argue in a conclusory fashion that

12

the indictments were fraudulent and ran afoul of time requirements. Mot. at 12, 11.

13

Tisthammer’s arguments are unpersuasive. Aside from his unsupported allegations of

14

fraud and time requirements violations, Tisthammer fails to put forth evidence that

15

counsel’s actions were was unreasonable and therefore deficient. Tisthammer also does

16

not establish a reasonable probability that, but for counsel’s failure to challenge the

17

indictment, the result of the proceedings would have been different. Accordingly,

18

Tisthammer was not denied his right to effective assistance of counsel based on his

19

attorneys’ purported failure to challenge the indictments.

20

Tisthammer further argues that his trial counsel was ineffective because his

21

attorneys failed to investigate evidence favorable to Tisthammer. Mot. at 10.

22

Tisthammer alleges that his counsel failed to investigate false charges, to interview

23

various law enforcement officers whom Tisthammer claims were untruthful, or other

24

witnesses. Mot. at 4, 17. Tisthammer fails to specify which witnesses his counsel

25

failed to interview or any evidence that his counsel failed to investigate. Thus,

26

Tisthammer’s broad and conclusory allegations do not entitle him to relief. See

27
28

Wallace v. United States, 457, F. 2d 547, 548 (9th Cir. 1972) (affirming the district
5
O:\CAS\ECF Ready\Tisthammer 2255 FINAL.wpd

1

court’s denial of § 2255 relief, where petitioner failed to assert “sufficient particulars”

2

and instead stated “a bald conclusion in the form of a self-serving statement”) (citations

3

omitted); United States v. Aguero, 534 F. Supp. 486, 487-88 (N.D. Cal. 1982) (“While

4

the Court does not require allegations in minute detail in post-conviction petitions,

5

purely conclusory allegations will not suffice.”) (citing Peabody v. United States, 394

6

F.2d 175, 177 (9th Cir. 1968)). Likewise, Tisthammer has not shown how counsel’s

7

failure to seek out additional witnesses or evidence was prejudicial. Tisthammer made

8

similar arguments in his pretrial motions, which the Court denied because Tisthammer

9

failed to specify the evidence he sought to compel. See Criminal Case, dkts. 205–07,

10

264, 236, 300. Accordingly, it does not appear that Tisthammer’s attorneys failed to

11

investigate favorable evidence.

12

Next, Tisthammer avers that his counsel was ineffective because Tisthammer’s

13

attorneys did not challenge Speedy Trial Act violations stemming from the multiple

14

continuances in the case. Mot. at 6, 10. However, Tisthammer filed a motion to

15

dismiss the second superseding indictment for violations of the Speedy Trial Act and

16

the Sixth Amendment himself. Criminal Case, dkts. 193–94. The Court denied

17

Tisthammer’s motion to dismiss, concluding that all the continuances were factually

18

supported and necessary to ensure that Tisthammer’s counsel had enough time to

19

prepare an adequate defense. Criminal Case, dkt. 227 at 4, 6. Tisthammer has not

20

demonstrated that the Court erred in its ruling. That the Court denied Tisthammer’s

21

motion to dismiss on speedy trial grounds demonstrates that his counsel’s failure to

22

assert the same argument was not unreasonable. See Shah, 878 F.2d at 1162. Likewise,

23

Tisthammer has not shown a reasonable probability that the outcome of the proceeding

24

would have differed if his counsel had objected to purported speedy trial violations.

25

Since Tisthammer failed to establish deficiency and prejudice, it does not appear that

26

Tisthammer was denied his right to effective assistance of counsel because his attorneys

27
28

failed to challenge purported Speedy Trial Act violations.
6
O:\CAS\ECF Ready\Tisthammer 2255 FINAL.wpd

1

Tisthammer further claims he was “forced” to proceed pro se. Mot. at 10. The

2

Court disagrees. The Court appointed seven trial attorneys and one appellate attorney

3

to represent Tisthammer over the course of the proceedings. See Criminal Case, dkts.

4

26, 43, 45, 77, 115, 200, 421. The criminal docket also reflects that where Tisthammer

5

appeared pro se, he requested to appear pro se and either fired his attorney or replaced

6

his attorney with stand-by counsel. See Criminal Case, dkts. 58, 161, 341. Therefore,

7

Tisthammer was not denied his right to effective assistance of counsel.

8
9

Finally, Tisthammer argues ineffective assistance of counsel based on his
counsel’s failure to seek bond pending trial. Mot. at 21. The Court disagrees. Contrary

10

to Tisthammer’s assertion, Tisthammer’s attorney Larry Bakman appealed the

11

magistrate’s detention decision and sought pre-trial release. Criminal Case, dkt. 98.

12

The Court denied this motion. Criminal Case, dkt. 120. Tisthammer asserts that had he

13

been released on bond, he could have helped counsel investigate evidence or witnesses.

14

Mot. at 21. However, Tisthammer offers no factual evidence to support this assertion.

15

Tisthammer fails to demonstrate how being denied pre-trial release on bond was

16

prejudicial to his case. Nor does Tisthammer demonstrate that Bakman’s efforts were

17

unreasonable.

18
19

In light of the foregoing, it does not appear that Tisthammer was denied effective
assistance of counsel.

20

C.

Miscellaneous Other Arguments

21

Tisthammer makes the following additional arguments as to why he is entitled to

22

§ 2255 relief: (1) that the search warrant was improperly issued and executed; (2) that

23

Tisthammer was denied access to witnesses (Mot. at 5, 8, 15); (3) that Tisthammer’s

24

daughter was “interrogated” without a parent or lawyer present (Mot. at 5, 23); (4) that

25

the Court erred by permitting the Government to present “prejudicial excerpts” (Mot. at

26

9); (5) that the second superseding indictment was defective (Mot. at 10, 11, 14, 15, 17,

27
28

20, 21, 24); (6) that the Court erred by denying Tisthammer’s motion for judgment of
7
O:\CAS\ECF Ready\Tisthammer 2255 FINAL.wpd

1

acquittal (Mot. at 15); and (7) that the Government engaged in selective prosecution

2

(Mot. at 19).1 The Government argues that Tisthammer procedurally defaulted on these

3

claims because Tisthammer did not raise them on direct appeal. Opp’n at 15.
A § 2255 movant who fails to raise his claims on direct appeal procedurally defaults on his claims,

4
5

unless he can demonstrate either (a) cause and prejudice, or(b)

6

at 622. The Court has already concluded that Tisthammer has not demonstrated actual

7

innocence. See supra Part III.A.
Courts have found cause where “some objective factor external to the defense

8
9

actual innocence. Bousley, 523 U.S.

impeded counsel’s efforts to comply with the . . . procedural rule.” Murray v. Carrier,

10

477 U.S. 478, 488 (1986). For instance, courts have found cause where “a showing that

11

the factual or legal basis for a claim was not reasonably available to counsel” and where

12

“some interference by officials made compliance impracticable.” Id. (quotation marks

13

and citations omitted). Constitutionally ineffective assistance of counsel may also

14

constitute cause; nonetheless, “the mere fact that counsel failed to recognize the factual

15

or legal basis for a claim, or failed to raise the claim despite recognizing it, does not

16

constitute cause for a procedural default.” Id. at 488, 486. In addition to cause,

17

petitioner must show prejudice. Bousley, 523 U.S. at 622. “[T]he prejudice prong of

18

the test requires demonstrating not merely that the errors at . . . trial created a possibility

19

of prejudice, but that they worked to his actual and substantial disadvantage, infecting

20

his entire trial with error of constitutional dimensions.” United States v. Braswell, 501

21

F.3d 1147, 1150 (9th Cir. 2007) (quotation marks and citation omitted).

22
23
24
25
26
27
28

1

In addition, Tisthammer argues that he is entitled to § 2255 relief because the Court
applied improper sentencing enhancements. Mot. at 16. Tisthammer already raised this
argument on direct appeal. Dkt. 30, Ex. A at 44–50. “When a defendant has raised a claim
and has been given a full and fair opportunity to litigate it on direct appeal, that claim may
not be used as basis for a subsequent § 2255 petition.” United States v. Hayes, 231 F.3d
1132, 1139 (9th Cir. 2000). Therefore, the Court need not reconsider the applicable
sentencing enhancements.
8
O:\CAS\ECF Ready\Tisthammer 2255 FINAL.wpd

1

Here, Tisthammer does not argue that an “objective external factor” prevented

2

him from raising his remaining arguments during his direct appeal. See Reply at 13.

3

Instead, Tisthammer contends that that he failed to raise the claims because he is an

4

“amateur court appellant and Petitioner,” who “cannot be expected to present legally

5

expert opinions.” Reply at 13. Tisthammer’s contention is unpersuasive. As an initial

6

matter, Tisthammer was represented by counsel during his direct appeal. Dkt. 30, Ex. A

7

at 1. Tisthammer has not demonstrated ineffective assistance of counsel or adequate

8

cause for failing to raise his remaining arguments during his direct appeal. Therefore,

9

Tisthammer fails to demonstrate cause for procedurally defaulting on his claims.

10
11

Accordingly, the Court concludes that Tisthammer’s remaining arguments do not
entitle him to § 2255 relief

12

D.

13

The Government contends that Tisthammer’s motion does not require an evidentiary hearing because

14

the files and the record conclusively show that Tisthammer is not entitled to § 2255 relief, even assuming the

15

truth of Tisthammer’s factual allegations. Opp’n at 25–26. In deciding whether a § 2255 movant is entitled to

16

an evidentiaryhearing,

17

movant’s factual allegations, the movant could prevail on his claim. See United States

18

v. Blaylock, 20 F. 3d 1458, 1465 (9th Cir. 1994); § 2255(b)–(c). However, it is well

19

established in the Ninth Circuit that a § 2255 movant is not entitled to a hearing where

20

the § 2255 motion makes only “conclusory allegations, unsupported by facts and

21

refuted by the record.” Farrow v. United States, 580 F.2d 1339, 1360-61 (9th Cir.

22

1978).

23

Evidentiary Hearing

district courts must determine whether, accepting the truth of the

The record lends no support to Tisthammer’s allegations. Tisthammer has not

24

put forth any factual basis for his claims of actual innocence and ineffective assistance

25

of counsel. Furthermore, Tisthammer has procedurally defaulted on his remaining

26

arguments and the Court need not determine whether Tisthammer would be entitled to

27

an evidentiary hearing if said arguments had a factual basis.

28

O:\CAS\ECF Ready\Tisthammer 2255 FINAL.wpd

9

1

Accordingly, the Court concludes that Tisthammer’s § 2255 motion does not

2

require an evidentiary hearing

3

IV.

CONCLUSION

4

Tisthammer’s motion pursuant to 28 U.S.C. § 2255 is DENIED.

5

IT IS SO ORDERED.

6
7

Dated: December 27, 2016

8
CHRISTINA A. SNYDER

9

United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

O:\CAS\ECF Ready\Tisthammer 2255 FINAL.wpd

10