Price v. United States of America
Filing
27
OPINION entered by Judge Sue E. Myerscough on 9/7/2017. Petitioner's Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, d/e 16 is DENIED. No evidentiary hearing is necessary. The Court also denies a certificate of appealability under Rule 11(a) of the Rules Governing Section 2255 Proceedings. See 28 U.S.C. § 2253(c)(2). This case is CLOSED. (SEE WRITTEN OPINION)(MAS, ilcd)
E-FILED
Thursday, 07 September, 2017 11:56:29 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JEFFREY PRICE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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No. 15-CV-03333
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Petitioner Jeffrey Price has filed an Amended Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (d/e 16). After reviewing the entire
record in the case, the Court finds no need for an evidentiary
hearing because any factual matters may be resolved based on the
record before the Court.
The Motion is DENIED. All of Petitioner’s claims, with the
exception of the ineffective assistance of counsel claims, are
procedurally defaulted. Petitioner is not entitled to relief on his
ineffective assistance of counsel claims because he can show
Page 1 of 45
neither deficient performance nor prejudice. Finally, even if
Petitioner’s remaining claims were not procedurally defaulted,
Petitioner is not entitled to relief.
.I.
BACKGROUND
Petitioner took sexually explicit photographs of his daughter
R.P. when she was between the ages of 10 and 12. He put some of
the photographs on the internet. Petitioner also had stored on his
computers a large amount of child pornography depicting other
children.
Petitioner was originally charged in October 2009 and was
detained throughout the case. United States v. Price, Central
District of Illinois Case No. 09-30107 (Crim.). The Second
Superseding Indictment (Crim., d/e 76) charged him with Use of a
Minor to Produce Child Pornography in violation of 18 U.S.C.
§ 2251(a) and (e) and Possession of Child Pornography in violation
of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The Court appointed
several attorneys to represent Petitioner over the course of the
proceedings. Petitioner ultimately elected to proceed pro se with
standby counsel shortly before trial.
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In November 2011, after a four-day trial, a jury found
Petitioner guilty of producing child pornography and of possessing
child pornography. By special verdict, the jury found that five of
the photographs of R.P. depicted sexually explicit conduct. See
Crim., Jury Verdict (d/e 159, 4 of 8); Tr. at 971 (d/e 205).
With Petitioner’s agreement, the Court appointed counsel to
represent Petitioner at sentencing. In March 2012, this Court
sentenced Petitioner to 18 years’ imprisonment on the production
count and a concurrent 6-year term of imprisonment on the
possession count. The Court also sentenced Petitioner to a lifetime
term of supervised release and imposed the $200 mandatory
special assessment.
Petitioner appealed and was appointed counsel on appeal.
On appeal, Petitioner challenged the denial of his motion to
suppress and the jury instruction on lascivious exhibition. The
Government filed a cross-appeal arguing that Petitioner’s 18-year
sentence, less than half of the 40-year Guideline sentence, was
substantively unreasonable. On December 5, 2014, the Seventh
Circuit affirmed. United State v. Price, 775 F.3d 828 (7th Cir.
2014).
Page 3 of 45
Neither Petitioner nor the Government sought further review.
Therefore, Petitioner’s conviction became final on March 5, 2015.
Clay v. United States, 537 U.S. 522, 525 (2003) (a judgment for
conviction becomes final when the 90-day period for filing a
petition for certiorari expires).
On December 7, 2015, Petitioner timely filed a Motion under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (d/e 1). The Court directed Respondent
United States of America to file an answer, motion, or other
response. Respondent filed a response seeking to dismiss several
claims for failure to state a claim, arguing that the claims were
perfunctory and unsupported by facts or arguments, arguing that
several claims were procedurally defaulted, and addressing some of
the claims on the merits. Resp. (d/e 3). Petitioner filed a reply
(d/e 4), asserting that he previously requested transcripts but the
request was denied. Petitioner also sought to reserve all other
issues for discussion with court-appointed counsel.
On June 23, 2016, this Court entered an Order denying what
the Court construed as Petitioner’s request for counsel. Order at 2
(d/e 6). As for the sufficiency of Petitioner’s Motion, the Court
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found that a few of Petitioner’s claims contained sufficient facts
and argument to permit the Court to review them but that the
majority of the claims did not state supporting facts. Id. at 2-3.
Because the deficiencies in Petitioner’s Motion might be corrected
if Petitioner had access to the transcripts, the Court directed the
Clerk to send the existing transcripts to the Warden of the Federal
Correctional Institution in Milan, Michigan. Id. at 3. The Court
directed the Warden to maintain custody and control of the
documents but to allow Petitioner reasonable access to the
transcripts under the direct supervision of a prison official. Id. at
3-4. The Court also granted Petitioner leave to file an amended
§ 2255 Motion. Id. at 4. In August 2016, the Court granted
Petitioner’s request for one additional transcript. August 4, 2016
Text Order.
On January 17, 2017, after several extensions of time,
Petitioner filed his Amended § 2255 Petition (d/e 16). The
Amended Petition lists four grounds, followed by a list of individual
claims:
GROUND ONE: Abuse of Discretion
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1.
Court denied use of Exculpatory Evidence by
Defendant
2.
Court allowed false testimony on behalf of
Government
3.
Denied rights pursuant to 18 USC 3142
4.
Defendant compelled to proceed pro se
5.
Court denied Defendant’s rights under 18
USC 3161
6.
Jury not fully informed by trial court Judge
7.
Prejudicial Error and Bias
GROUND TWO: Ineffective Assistance of Counsel
1.
Robert Scherschligt
2.
Ron Stone
3.
James Elmore
4.
Jon Noll & Daniel Noll
5.
Joshua Press, Evan Brennan, Jennifer
Madden (Appellate)
GROUND THREE: Fraud on the Court
1.
Fraudulently dated Federal Court documents
a.
Magistrate Judge Byron Cudmore
b.
Special Agent Bowers
c.
Special Agent Michael Mitchell
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d.
Springfield Police Detective Paula
Morrow
GROUND FOUR: Violation of Rights
1.
Violation of Constitution of the United States
2.
Violation of Rights pursuant to United States
Code cited throughout attachments.
Am. Mot. at 4-8 (d/e 16). Petitioner attached to the Motion his
argument and supporting material.
On April 7, 2017, Respondent filed its Response (d/e 20) to
the Motion. On May 11, 2017, Petitioner filed his Reply (d/e 21).
II. ANALYSIS
A person convicted of a federal crime may move to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Relief
under § 2555 is an extraordinary remedy because a § 2255
petitioner has already had “an opportunity for full process.”
Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Post-conviction relief under Section 2255 is therefore “appropriate
only for an error of law that is jurisdictional, constitutional, or
constitutes a fundamental defect which inherently results in a
complete miscarriage of justice.” Harris v. United States, 366 F.3d
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593, 594 (7th Cir. 2004) (internal quotation marks and citation
omitted). In considering a Section 2255 motion, the Court reviews
the evidence and inferences drawn from the evidence in the light
most favorable to the Government. Carnine v. United States, 974
F.2d 924, 928 (7th Cir. 1992).
A.
All of Petitioner’s Claims, With the Exception of the
Ineffective Assistance of Counsel Claims, are Procedurally
Defaulted
Section 2255 petitions are “neither a recapitulation of nor a
substitute for direct appeal.” McCleese v. United States, 75 F.3d
1174, 1177 (7th Cir. 1996) (internal quotation marks and citation
omitted). Therefore, a petitioner cannot use a § 2255 motion to
challenge (1) issues that were raised on direct appeal, absent a
showing of changed circumstances; (2) nonconstitutional issues
that could have been but were not raised on direct appeal; or (3)
constitutional issues that were not raised on direct appeal unless
the petitioner can demonstrate cause for the procedural default
and actual prejudice from the failure to appeal or the petitioner
can show a fundamental miscarriage of justice. See McCleese, 75
F.3d at 1177; Belford v. United States, 975 F.2d 310, 313 (7th Cir.
1992), overruled on other grounds by Castellanos v. United States,
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26 F.3d 717 (7th Cir. 1994); United States v. Evans, 123 F. Supp.
2d 1122, 1124 (N.D. Ill. 2000).
In this case, all of Petitioner’s claims, with the exception of
the ineffective assistance of counsel claims, are procedurally
defaulted. See Delatorre v. United States, 847 F.3d 837, 845 (7th
Cir. 2017) (noting that ineffective assistance of counsel claims may
generally be raised for the first time on collateral review because
such claims are “invariably doom[ed] on direct review”) (internal
quotation marks and citations omitted). Petitioner has not even
attempted to demonstrate cause for the procedural default or
actual prejudice and does not argue a fundamental miscarriage of
justice would result if the Court does not consider his claims.
B.
Petitioner Has Failed to Demonstrate Ineffective
Assistance of Counsel
Petitioner argues that all of his attorneys provided ineffective
assistance of counsel. As an initial matter, the Court notes that
Petitioner represented himself from October 19, 2011 until the end
of the jury trial, at which time the Court appointed counsel for
sentencing. Crim., November 4, 2011 Minute Entry. For the time
period when Petitioner represented himself, he cannot “complain
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that the quality of his own defense amounted to a denial of
‘effective assistance of counsel.’” Faretta v. California, 422 U.S.
806, 834 n.46 (1975).
To succeed on a claim of ineffective assistance, a section
2255 petitioner must show: (1) that his attorney’s performance fell
below an objective standard of reasonableness; and (2) that he
suffered prejudice as a result. Wyatt v. United States, 574 F.3d
455, 457-58 (7th Cir. 2009) (citing Strickland v. Washington, 466
U.S. 668, 687-88 (1984)). The first prong is known as the
“performance” prong, and the second is known as the “prejudice”
prong. Id.
Failure to prove either prong is fatal to a claim of ineffective
assistance. Chichakly v. United States, 926 F.2d 624, 630 (7th
Cir. 1991); see also Strickland, 466 U.S. at 697 (“If it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice … that course should be followed.”). When
examining the performance prong, this Court applies a strong
presumption that counsel’s representation was within the wide
range of reasonable professional assistance. Strickland, 466 U.S.
at 689. Counsel’s performance “must merely be reasonably
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competent.” Delatorre, 847 F.3d at 845.
To satisfy the prejudice prong, a petitioner must show “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694; see also Gentry v.
Sevier, 597 F.3d 838, 851 (7th Cir. 2010). A reasonable
probability is a “probability sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694.
Petitioner argues that his first attorney, Assistant Federal
Public Defender Robert Scherschligt, provided ineffective
assistance of counsel. Scherschligt represented Petitioner between
October 22, 2009 and April 30, 2010 when Petitioner asked for
new counsel. Crim., Mot. (d/e 14).
Petitioner argues that Scherschligt was ineffective because he
told Petitioner to waive the preliminary hearing. However,
counsel’s performance is not deficient for failing to make a losing
argument, and probable cause existed. Fuller v. United States,
398 F.3d 644, 652 (7th Cir. 2005); see Crim., Order of Detention
(d/e 6) (finding the weight of the evidence clearly satisfied the
probable cause standard); Crim., November 18, 2009 Indictment
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(d/e 9). Petitioner can show neither deficient performance nor
prejudice from the waiver of the preliminary hearing.
Petitioner also argues that Scherschligt should have objected
to certain evidence presented at the detention hearing. At the
detention hearing, the Government called one witness, Detective
Paula Morrow; proffered additional evidence; and submitted
images of child pornography not involving R.P. that were recovered
from the recycle bin of Petitioner’s computer. Tr. at 7-26 (d/e 152)
(October 27, 2009).
Petitioner has failed to show deficient performance. “[T]he
rules concerning the admissibility of evidence in criminal trials do
not apply to the presentation and consideration of information at
the [detention] hearing.” 18 U.S.C. §3142(e). In addition, while
Petitioner appears to argue that Detective Morrow testified that
Petitioner did not violate the safety plan, the transcript shows that
she testified that Petitioner did initially violate the safety plan but
that he did not violate the safety plan after September 2009.
Crim., Tr. at 16 (d/e 152). Furthermore, any errors that occurred
during his pretrial detention hearing are moot because they do not
impact his ultimate conviction and sentence. See Hull v. United
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States, No. 06-cv-1012, 2008 WL 4148572, at *3 (C.D. Ill. Sept. 3,
2008) (finding that a postconviction habeas petition is not the
proper avenue for challenging evidentiary rulings during a pretrial
bond hearing). Petitioner has failed to show that Scherschligt’s
performance was deficient or that Petitioner suffered prejudice.
Petitioner next argues that attorney Ronald Stone provided
ineffective assistance of counsel for failing to contact Petitioner.
On April 30, 2010, the Court appointed Stone to represent
Petitioner after Scherschligt was allowed to withdraw. Stone
represented Petitioner for approximately three days before moving
to withdraw due to a conflict of interest. Crim., Mot. (d/e 16)
(indicating that counsel had a conflict because of the witnesses
involved). Petitioner has failed to show deficient performance by
Stone or that Petitioner suffered prejudice.
Petitioner next argues that attorney James Elmore provided
ineffective assistance of counsel. Elmore represented Petitioner
from May 11, 2010 to July 11, 2011. Elmore was allowed to
withdraw after Petitioner asked for new counsel. Crim., Mot. (d/e
34); July 11, 2011 Minute Entry.
Petitioner asserts that Elmore asked for too many
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continuances. While represented by Elmore, Petitioner sought and
obtained seven continuances. See Crim., Mot. (d/e 20) (additional
time needed to review discovery and prepare for trial); (d/e 21)
(additional time needed to review extensive discovery and prepare
for trial); (d/e 22) (same); (d/e 23) (plea negotiations ongoing and
additional time needed to review extensive discovery); (d/e 24) (plea
negotiations ongoing and counsel interviewing witness and
reviewing extensive discovery); March 25, 2011 Minute Entry (oral
motion by defense counsel); May 4, 2011 Minute Entry (oral
motion by defense counsel). In addition, Petitioner did not object
to a brief continuance sought by the Government on two
occasions. Crim. Mots. (d/e 25) (trial thereafter continued from
April 5, 2011 to April 27, 2011 ); d/e 33 (trial thereafter continued
from July 18, 2011 to August 1, 2011).
The decision to ask for a continuance is a tactical decision
and one that is entitled to strong deference. Blake v. United
States, 723 F.3d 870, 886 (7th Cir. 2013) (describing the decision
to seek a continuance as a tactical decision). Counsel is not
required to obtain the client’s consent prior to making purely
tactical decisions. United States v. Gearhart, 576 F.3d 459, 463 n.
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3 (7th Cir. 2009). If an attorney articulates a strategic reason for a
decision that was sound when made, the decision generally cannot
support a claim of ineffective assistance of counsel. Yu Tian Li v.
United States, 648 F.3d 524, 527 (7th Cir. 2011); Harris v. Reed,
894 F.2d 871, 876 (7th Cir. 1990) (noting that “this court is not
free to question the objectively reasonable strategic decisions of
counsel”).
In this case, the record reflects adequate reasons for Elmore
to request the continuances, including to interview witnesses,
review the extensive discovery, and engage in plea negotiations.
Petitioner has failed to make any showing that Elmore’ decisions to
seek continuances and to not object to the Government’s motions
for a continuance fell outside the wide range of professionally
competent assistance. Additionally, Petitioner cannot show
prejudice. In fact, Petitioner himself sought an additional
continuance after he chose to proceed pro se. Crim., October 19,
2011 Minute Entry.
Petitioner also complains that Elmore wanted Petitioner to
plead guilty, did not think Petitioner’s spouse, Patricia Price,
should testify, and made certain comments to Patricia about his
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personal beliefs as to Petitioner’s guilt or innocence. Petitioner
also criticizes Elmore for not sharing how he (Elmore) wanted to
proceed. Even if any of these actions constituted deficient
performance, Petitioner has failed to show any prejudice.
Petitioner did not plead guilty, Petitioner’s spouse testified at trial,
Elmore’s statements to Petitioner’s spouse did not result in
prejudice, and Petitioner proceeded at trial pro se and made his
own decisions regarding how to proceed.
Petitioner next argues that attorneys Jon Gray Noll and Dan
Noll provided ineffective assistance of counsel but also states that
“they did more to represent [him than] had the previous court
appointed attorneys.” Am. Pet. (d/e 16-3, 7 of 16). The Nolls
represented Petitioner from July 11, 2011 to October 19, 2011,
when Petitioner elected to proceed pro se. The Nolls were then
appointed as standby counsel.
Petitioner states that the Nolls were limited in scope as to the
motions that they would file as active counsel and would not do
the needed internet research that would have shown examples
from mainstream media that “would offset the Government’s
argument as to the nature of the artistic and family photos.” Id.
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Petitioner also argues that Jon Noll informed Petitioner that
Petitioner could submit motions on his own with the Nolls as
standby counsel, and Petitioner followed that advice, although he
did not want to do so. Id. at 8.
Petitioner can show neither deficient performance nor
prejudice. The Nolls filed numerous motions on Petitioner’s behalf1
and Petitioner has failed to identify any motion the Nolls should
have filed that would not have been frivolous. Fuller, 398 F.3d at
652 (counsel’s performance is not deficient for failing to make a
losing argument). Although Petitioner claims the Nolls did not
refile the motion to sever charges that the Court denied on October
3, 2011, Petitioner raised that motion again pro se on October 28,
2011 (Crim., d/e 138), and the Court denied the motion. Crim.,
Tr. at 89 (d/e 206) (October 28, 2011).
In addition, Petitioner presented evidence at trial of images
The Nolls filed the following motions: an Omnibus Motion, which included a
motion for bond, a request for a bill of particulars, a motion to dismiss, and a
motion for severance of the charges (Crim., d/e 44); motion to appoint
computer expert (Crim., d/e 45); motion to suppress (Crim., d/e 46); motion
for the appointment of an investigator (Crim., d/e 52); motion to allow
Petitioner to view the photographic evidence (Crim., d/e 54); motion to adjust
the trial schedule (Crim., d/e 57); and a motion for service of subpoenas
without prepayment of costs (Crim., d/e 65).
1
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from mainstream media and argued that the images in question
were artistic and not child pornography. Therefore, Petitioner
cannot show prejudice from the Nolls alleged failure to conduct
such research.
As for Petitioner’s claim that Jon Noll advised Petitioner to
proceed pro se and that Petitioner felt compelled do so, that claim
is refuted by the record. Petitioner moved to proceed pro se by way
of a letter. On October 19, 2011, the Court held a hearing.
At the hearing, Jon Noll advised the Court that Petitioner told
him the previous week that he wanted to proceed pro se. Jon Noll
agreed to stay on as standby counsel if so directed by the Court.
Tr. at 4-6 (d/e 229) (October 19, 2011).
The Court had Petitioner sworn and then conducted a
colloquy with Petitioner to ensure that he was knowingly and
voluntarily waiving his right to be represented by Mr. Noll. Tr. at
11. When asked why he wanted to represent himself, Petitioner
stated:
During the last hearing we had when—on the
suppression of evidence, there was a few times that I felt
that had I been able to stand right in front of the
detective and the caseworker in question and ask them
a question point blank, that they—and confront them
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with the statements that I said that they made, perhaps
responses would have been different.
I believe that my cross-examination of the alleged
victim and the witness could play a very crucial role in
getting to the truth of the matter.
It’s not something I’ve done lightly. I thought
about doing this for--from day one. But I have been
very, very, very patient. And I have kept in mind exactly
what you said, a fool for a client. I have listened to the
advice of the Court and of the attorney. And I have read
and I have been very, very patient. And I have been
waiting to eventually get an attorney that would believe
in me, that would listen, and would do some of the
things that I felt needed to be done.
I finally found that in Jon and Daniel Noll. And
even though the Government just now feels like they’re
ready to wrap up and go to trial, I feel like I’m just now
getting started. Last night at 4:00 I received 600 pages.
400 pages from my attorney last week--Tr. at 13-14. When the Court interrupted to advise Petitioner that
“we’re not talking about the continuance issue right now” and that
“[w]e’re just talking about self-representation,” Petitioner
responded, “I understand. I believe I can do it.” Tr. at 14. Despite
the Court repeatedly urging Petitioner not to represent himself,
Petitioner insisted on proceeding pro se. See Tr. at 12 (the Court
stating: “A fool for a client, that’s the expression that’s used); Tr. at
18 (the Court stating: “I think it’s unwise for you to represent
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yourself” and “I strongly, strongly urge you not to represent
yourself.”); Tr. at 20 (wherein Petitioner stated he still wished to
represent himself even in light of the penalty he might suffer if
found guilty and in light of the difficulties of representing himself).
At no time did Petitioner indicate that he felt compelled to
represent himself or that representing himself was the only way to
get filed the motions he wanted to file. Therefore, his current
claims are refuted by the record. See, e.g., Gallo-Vasquez v. United
States, 402 F.3d 793, 799 (7th Cir. 2005) (affirming summary
dismissal of claim that counsel was ineffective for failing to bring
an interpreter to their meetings; the record refuted the petitioner=s
claim that a language barrier prevented him from communicating
with counsel). Petitioner has failed to show deficient performance
of Jon or Daniel Noll or that he suffered any prejudice.
Petitioner next argues that his appellate attorneys from
Skadden, Arps, Slate, Meagher and Flom LLP provided ineffective
assistance of counsel. The Seventh Circuit docket sheet reflects
that the Seventh Circuit appointed Joshua S. Press to represent
Petitioner on appeal. In November 2012, shortly after the opening
brief was filed, Press moved to withdraw because he was leaving
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the firm and asked that the Court substitute Evan P. Brennan,
another attorney in the firm who had been working on the case
with Press. See United State v. Price, Seventh Circuit Case No. 121630 (Appellate), Mot. to Withdraw (d/e 21) (reflecting Petitioner’s
consent); see also Order (d/e 22) (granting the motion). The
Seventh Circuit then struck the opening brief for failure to contain
a jurisdictional statement that complied with Federal Rule of
Appellate Procedure 28(a)(4). Id., Order (d/e 23). Attorney
Brennan resubmitted the brief. See id. (d/e 24). Both briefs
contained the same issues. Brennan argued the case.
In July 2014, Brennan moved to withdraw and substitute
another attorney in the firm, Jennifer Madden. Appellate (d/e 53)
(also reflecting that Petitioner consented); Id. Order (d/e 54)
(granting the motion). On December 5, 2014, the Seventh Circuit
issued its decision affirming the district court. Id. Opinion (d/e
56).
On December 22, 2014, Madden moved to withdraw, and
Petitioner objected. Appellate (d/e 58, 59). Madden filed a
supplemental motion stating that she did not believe there were
any reasonable bases on which to proceed for petition for writ of
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certiorari or a petition for rehearing. Id. (d/e 61).
On January 9, 2015, the Seventh Circuit granted the motion
to withdraw and gave Petitioner until February 6, 2015 to file a pro
se petition for rehearing. Id. (d/e 63). Petitioner did not do so.
Petitioner now argues that Press, Brennan, and Madden
provided ineffective assistance. Petitioner asserts that he wanted
to attack all points of error in the proceedings but put his trust in
his attorney.
Appellate counsel is not ineffective for failing to raise all
possible claims of error. Page v. United States, 884 F.2d 300, 302
(7th Cir. 1989). To show deficient performance, Petitioner must
show that his appellate counsel omitted significant and obvious
claims from the direct appeal that were clearly stronger than the
issues counsel did raise on direct appeal. Blake v. United States,
723 F.3d 870, 888 (7th Cir. 2013); Suggs v. United States, 513
F.3d 675, 678 (7th Cir. 2008). Petitioner has not even attempted
to make this showing. Even if this Court considered all of the
claims that Petitioner raises in his § 2255 Motion as claims
counsel should have raised on appeal, the discussion below in
Section C demonstrates that those claims were neither significant
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nor stronger than the claims counsel did raise.
Petitioner also argues that he requested continued assistance
through Madden but was sent notification of counsel’s withdrawal.
However, as the Seventh Circuit docket reflects, Petitioner was
advised of Madden’s motion to withdraw and objected. The
Seventh Circuit granted the motion to withdraw and gave
Petitioner time within which to file a petition for rehearing.
Petitioner failed to do so. Petitioner can show neither deficient
performance nor prejudice from the withdrawal by counsel on
appeal.
In sum, Petitioner does not satisfy the performance or
prejudice prong required for his claims of ineffective assistance in
his § 2255 Motion to proceed. Because the briefing and record
conclusively establish that counsel’s performance was either not
deficient or that Petitioner suffered no prejudice from his attorneys’
alleged deficient performances, no evidentiary hearing is
warranted.
C.
Even if Petitioner’s Remaining Claims Were Not
Procedurally Defaulted, Petitioner is Not Entitled To
Relief on Those Claims
Even if Petitioner’s remaining claims were not procedurally
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defaulted, Petitioner is not entitled to relief.
1.
Ground One, Subpart 1: Whether the Court Improperly
Denied the Use of Exculpatory Evidence by Petitioner
Petitioner argues that the Court improperly excluded
exculpatory evidence.
First, Petitioner argues that the Court erred by barring
evidence of R.P.’s mental history, in particular the 2008
medical records from Lincoln Prairie Behavioral Health
Center. The Court allowed Petitioner, who was proceeding
pro se at that time, to review those medical records. Crim.,
Tr. at 36-37 (d/e 229) (October 19, 2011).
Petitioner sought the admission of the mental health records
on the basis that the allegations R.P. made against Petitioner were
made when R.P. was suffering from bipolar disorder, personality
disorder, and had attempted suicide. Tr. at 4 (d/e 202) (October
31, 2011). Petitioner further argued that information in the mental
health records showed that R.P. had undergone stressful periods
in her life and those factors could have influenced her decision to
make the allegations. Id. The Government argued the mental
health records would be relevant only if R.P. could not accurately
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perceive the events at the time the crime occurred or accurately
perceive and recall the events at the time of her testimony, which
was not the case. Id. at 6.
The Court denied Petitioner’s request to admit the mental
health records, finding the evidence was not relevant. Tr. at 8-9
(d/e 202). The Court noted, however, that Petitioner could re-raise
the issue prior to or during the testimony of R.P. Id. Petitioner did
not re-raise the issue prior to or during the testimony of. R.P. See
Tr. 602-666.
Petitioner has failed to demonstrate that the Court erred by
barring R.P. mental health history. Evidence that R.P. was
suffering from bipolar disorder, had a personality disorder, had
attempted suicide, and was undergoing stressful periods in 2008
was not relevant to R.P.’s credibility or capacity to testify when she
testified at trial in 2011. See, e.g., Fed. R. Evid. 401 (evidence is
relevant if it has a tendency to make a fact more or less probable,
and the fact is of consequence in determining the action).
Second, Petitioner argues that Dr. David Decker should have
been allowed to testify. However, at the pretrial conference,
Petitioner indicated that he intended to call Dr. Decker to
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authenticate the mental health records. Crim., Tr. at 44 (d/e 206)
(October 28, 2011). The Government agreed not to object to the
records’ authenticity. Id. at 45 (but not waiving relevance or an
objection based on privilege should something in those records be
found to be admissible). Therefore, the Court granted the
Government’s motion to exclude the testimony of Dr. Decker
without objection. Id. at 46; October 28, 2011 Minute Entry.
Because Petitioner never sought to have Dr. Decker testify on
anything other than the authenticity of the medical records, he
cannot now complain that the Court should have allowed Dr.
Decker to testify. Moreover, as noted above, R.P.’s mental health
history was not relevant.
Third, Petitioner argues that the Court erred by barring
introduction of R.P.’s sexual history. The Court properly
barred such evidence. Rule 412(a) of the Federal Rules of
Evidence bars evidence of a victim’s sexual behavior or sexual
predisposition. Fed. R. Evid. 412(a). A court may, however,
admit the following evidence in a criminal case: (1) evidence of
specific instances of a victim’s sexual behavior if offered to
prove that someone other than the defendant was the source
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of semen, injury, or other physical evidence; (2) evidence of
specific instances of a victim’s sexual behavior with respect to
the person accused of the sexual misconduct, if offered by the
defendant to prove consent or if offered by the prosecutor;
and (3) evidence whose exclusion would violate the
defendant’s constitutional rights. Fed. R. Evid. 412(b)(1)
(identified as “exceptions”); see also United States v. Rogers,
587 F.3d 816, 820 (7th Cir. 2009) (minors lack the capacity
to consent and, therefore, “sexual contact with a minor is
always ‘without consent’”). Here, none of those exceptions
applied.
Fourth, Petitioner argues he was prejudiced by the
Court’s refusal to play all of the recorded phone conversations
during trial and playing only redacted recordings. Am. Pet.
(d/e 16-1, p. 5 of 16).
Federal Rule of Evidence 106 provides that if a party
introduced all or part of a recorded statement, the adverse party
may require introduction of any other part of the recorded
statement that in fairness ought to be considered at the same time.
Fed. R. Evid. 106. A complete statement must be heard when
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necessary to (1) explain the admitted portions, (2) place the
admitted portions in context, (3) avoid misleading the trier of fact,
or (4) insure a fair and impartial understanding. United States v.
Yarrington, 640 F.3d 772, 780 (7th Cir. 2011). “The purpose of the
rule is to prevent a party from misleading the jury by allowing into
the record relevant portions of the excluded testimony which
clarify or explain the part already received.” United States v.
Reese, 666 F.3d 1007, 1019 (7th Cir. 2012) (internal quotations
marks and citation omitted).
At the hearing, the Government indicated that the redacted
portions of the calls consisted of information that was barred
(R.P.’s sexual history and mental health) or would be hearsay if
offered by Petitioner. Crim., Tr. at 83-84 (d/e 206) (October 28,
2011). In his § 2255 Motion, Petitioner does not identify the
portions of the phone recordings that should have been admitted
to prevent misleading the jury to clarify or explain the parts of the
recording that were played. Moreover, to the extent Petitioner
sought to admit hearsay, “a party cannot use the doctrine of
completeness to circumvent Rule 803’s exclusion of hearsay
testimony.” United States v Vargas, 689 F.3d 87, 876 (7th Cir.
Page 28 of 45
2012). Additionally, Petitioner testified at trial and had the
opportunity to present the evidence he wanted to present.
Therefore, Petitioner is not entitled to relief under § 2255 on this
ground.
Finally, Petitioner argues that Detective Morrow of the
Springfield Police Department did not have jurisdiction to
investigate the case because Defendant lived in Riverton, Illinois,
which had its own police force and because the Sangamon County
Sheriff had jurisdiction. Petitioner’s argument lacks any support
and is denied.
2.
Ground One, Subpart 2 – Whether the Court
Allowed False Testimony on Behalf of the
Government
Petitioner asserts the Government introduced false testimony
during the trial. A conviction obtained through the knowing use of
false testimony violates due process. Napue v. Illinois, 360 U.S.
264, 269 (1959). To obtain relief, Petitioner must show (1) there
was false testimony; (2) the prosecution knew or should have
known it was false; and (3) there is a likelihood the false testimony
affected the judgment of the jury. Morales v. Johnson, 659 F.3d
588, 606 (7th Cir. 2011).
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Petitioner argues that R.P.’s testimony about Petitioner
touching her were false because she told all of the doctors,
therapists, and questioners that she had never been touched or
abused by anyone. Am. Pet. (d/e 16-1, p. 9 of 16). However,
Petitioner has failed to even show that R.P.’s testimony was false.
R.P. testified that she never said anything about the events
until she was 16 years old. Crim., Tr. at 627 (d/e 204) (November
3, 2011). She explained that she kept the information secret for so
long because she was afraid of what would happen to her and her
brother and because she did not want to hurt her dad. Tr. at 626627. She revealed the information when she did because
Petitioner remarried a woman with granddaughters, and R.P. was
afraid that, if she did not say anything, something might happen to
them. Tr. at 627.
Petitioner is essentially challenging R.P.’s credibility. R.P.’s
credibility was an issue for the jury, and the jury found her
credible. See, e.g., United States v. Dunigan, 884 F.2d 1010, 1013
(7th Cir. 1989) (credibility is “a matter inherently within the
province of the jury”). Petitioner is not entitled to relief on this
ground.
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Petitioner also argues that the Court should not have allowed
Detective William Lynn to testify about pictures and items seized
by Detective Chad Gish in Nashville, Tennessee because no nexus
existed between any of the computers in question. Detective Lynn
testified that certain images (Exhibit 5A) were seized by Chad Gish
in Nashville and Detective Lynn compared those images to the
images of R.P. in Petitioner’s computers. Tr. 583-584. Detective
Chad Gish also testified about the search and seizure of computers
in a case in Nashville, on which images of R.P. were found.
The testimony was relevant to show that the images traveled
in interstate commerce. The Government was not, however,
required to show how the images got on the computer in Nashville
or that Petitioner even knew that the images travelled in interstate
commerce. See United States v. Foley, 740 F.3d 1079, 1082 (7th
Cir. 2014) (noting that the production of child pornography statute
contains a commerce element, which requires the Government to
show either that the images traveled in, or that the defendant
knew the images would travel in, interstate or foreign commerce,
or that any material used to produce the images traveled in
interstate or foreign commerce); United States v. Smith, 459 F.3d
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1276, 1289 (11th Cir. 2006) (jurisdiction extends to child
pornography that has traveled in interstate commerce, which does
not require proof of a mental state); Purvis v. Indiana Dep't of Child
Servs., No. 15-CV-00563-SEB-MPB, 2017 WL 2172095, at *4 (S.D.
Ind. May 17, 2017) (interstate commerce element met if the images
actually traveled in interstate commerce).
Petitioner offers no basis for finding the evidence false.
Petitioner is not entitled to relief on this claim.
3.
Ground One, Subpart 3 and Ground Four—
Whether Petition Was Denied Rights Pursuant to
18 U.S.C. 3142
Petitioner argues that he should not have been detained
pending trial. He argues that his pretrial detention violated his
Sixth, Eighth, Ninth, Thirteenth, and Fourteenth Amendment
rights.
In October 2009, following a detention hearing, United States
Magistrate Judge Byron G. Cudmore ordered Petitioner detained.
Crim., Detention Order (d/e 6). Judge Cudmore found that the
offense charged was a serious child pornography offense and was
characterized as a crime of violence under 18 U.S.C. § 3156(4). Id.
¶ 1. A rebuttable presumption in favor of detention applied under
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18 U.S.C. § 3142(e)(3), and the presumption was not rebutted as to
the danger prong. Id. ¶ 2. Specifically, Judge Cudmore noted that
the weight of the evidence was strong and clearly satisfied the
probable cause standard. Id. ¶ 3. In addition, the issues raised by
the Government regarding witness tampering were concerning. Id.
¶ 5. Petitioner possessed software that enabled him to destroy
evidence. Id. Petitioner did not comply with the Department of
Children and Family Services safety plan that was intended to
ensure the safety of the victim in the case. Id.; see also Tr. at 9
(d/e 152 ) (Detective Morrow’s testimony that Petitioner violated
the safety plan restriction that Petitioner have no contact with R.P.
by going to R.P.’s school and contacting by telephone R.P.s
maternal grandmother, with whom R.P. was staying, and trying to
talk to R.P.). As such, Judge Cudmore was not satisfied that any
condition or combination of conditions would reasonably assure
the safety of the community if Petitioner were released. Order, ¶ 5.
Consequently, Judge Cudmore found by clear and convincing
evidence that the defendant posed a risk of danger to the
community. Id. ¶ 6. He also found, however, that Petitioner had
significant ties to the community and was not a flight risk. Id. ¶ 7.
Page 33 of 45
Petitioner challenged this decision numerous times throughout his
case, and each time his request for pretrial release was denied.
See Crim., May 6, 2011 Text Order; July 11, 2011 Minute Entry;
Opinion (d/e 71); October 14, 2011 Detention Order (d/e 93).
Petitioner was properly detained pending trial in this matter,
and the Court took extensive efforts to ensure that Petitioner had
the ability to conduct his defense despite being detained. After
Petitioner decided to proceed pro se, the Court appointed standby
counsel. The Court offered to move Petitioner from the Pike
County Jail to the Sangamon County Jail to be closer to standby
counsel and the Court. Crim., Tr. 33 (d/e 229) (October 19, 2011);
Tr. at 58 (d/e 206) (October 28, 2011) (the Court also indicating
that Sangamon County would be ordered to give Petitioner the
medicines he currently takes). Petitioner refused. Id. In addition,
the Court ensured that Petitioner had access to a telephone and
the ability to send and receive documents by fax machine in the
Pike County Jail. Crim., Tr. at 46-60 (d/e 206) (October 28, 2011)
(discussions regarding Petitioner’s access to a fax machine and
telephone at Pike County Jail) Tr. at 40 (d/e 229) (October 19,
2011) (confirming that the Pike County Jail has a fax machine); Tr.
Page 34 of 45
at 280 (d/e 201) (November 1, 2011)(the Court noted that “it
sounds from our previous discussions as if Pike County has been
very lenient with Mr. Price and he has all of his documents”).
Petitioner has failed to show that his rights were violated.
Petitioner further claims that his rights were violated because
the Sangamon County Jail—where Petitioner was housed from the
time of his arrest until his first court appearance—only gave him
his hypertension and muscle spasm medication once a day.
Petitioner also claims he was suffering withdrawal from caffeine,
nicotine, and narcotics during that time. According to Petitioner,
the logical conclusion is that he was severely physically and
cognitively impaired during his first meeting with counsel and the
court appearance that followed. Am. Pet. (d/e 16-3, p. 4 of 16).
Petitioner does not support with any evidence his claim that
he was physically and cognitively impaired at his first meeting with
counsel or at the first court appearance. In addition, the
transcript of Petitioner’s first court proceeding reflects that each
time Judge Cudmore asked Petitioner whether he understood what
he was told, Petitioner indicated that he did. See Crim., Tr. at 5, 6,
30, 32 (d/e 152) (October 27, 2009). Petitioner is not entitled to
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relief on this ground.
4.
Ground 1, Subpart 4—Whether Defendant Was
Compelled to Proceed Pro Se
Petitioner argues that he was compelled to proceed pro se.
This argument is refuted by the record. See discussion supra at
18; Crim., Tr. at 11-23 (d/e 229) (October 19, 2011). The Court
thoroughly advised Petitioner of the dangers of proceeding pro se,
told him he would be held to the same standard as an attorney,
and strongly urged Petitioner to not represent himself. Crim., Tr.
at 11-20 (d/e 229). The Court reviewed the medication Petitioner
was taking and confirmed that the medications did not affect
Petitioner’s mental state or ability to think. Id. at 23. Petitioner
insisted on representing himself.
Petitioner also argues the Court prejudiced his case when the
Court denied his motion to continue after he elected to proceed pro
se.
On October 6, 2011, the Grand Jury returned a Second
Superseding Indictment. Crim. (d/e 76). The case was set for an
arraignment for October 13, 2011. Petitioner’s counsel argued
Petitioner could not be brought to trial less than 30 days from the
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arraignment and also sought a continuance of the trial. See Crim.
(d/e 82, 84). Although the Government originally did not object to
a continuance, the Government objected after the Court directed
briefing on United States v. Roja-Contreas, 474 U.S. 231 (1985)
(providing that the Speedy Trial Act does not require that the 30day trial preparation period be restarted upon arraignment on a
superseding indictment, although the court has the discretion to
grant such a continuance). See Crim., (d/e 84). The Court denied
the request for a continuance. See Crim., October 13, 2011
Minute Entry. On October 19, 2011, Petitioner elected to proceed
pro se. He then asked for a continuance of the trial, which the
Court denied.
Whether to grant a motion to continue a trial is a decision
within the district court’s discretion. See United States v. Miller,
327 F.3d 598, 601 (7th Cir. 2013) (noting that, on direct appeal,
the defendant must show an abuse of discretion and actual
prejudice). Courts consider several factors when deciding whether
to continue the trial, including the amount of time available for
preparation, the likelihood of prejudice if the motion is denied, the
defendant’s role in shortening the preparation time, the complexity
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of the case, the availability of discovery, the likelihood that a
continuance would have satisfied the movant’s needs, and the
inconvenience and burden to the court and its case load. Id.
Here, the case had been pending for nearly two years, with
many of the delays attributable to Petitioner and his frequent
change of counsel. Discovery had been produced, and Petitioner
had ample time to review that discovery. Moreover, Petitioner has
not identified how the denial of the continuance actually
prejudiced his case. Petitioner is not entitled to relief on this
ground.
5.
Ground One, Subpart 5 and Ground Four—
Whether the Court Denied Defendant’s Right to a
Speedy Trial
Petitioner also argues that the Court denied him his statutory
and constitutional rights to a speedy trial.
Petitioner has not shown a violation of the Speedy Trial Act
because the time was properly excluded from the 70-day period.
Petitioner sought numerous continuances and did not object to the
three continuances sought by the Government and, in fact, joined
in one. 18 U.S.C. § 3161(h)(7) (providing that any period of delay
resulting from a continuance if the judge granted the continuance
Page 38 of 45
on the basis of his findings that “the ends of justice served by
taking such action outweigh the best interest of the public and the
defendant in a speedy trial” shall be excluded in computing the
time within which the trial must commenced). The Court made the
required “ends of justice finding.” Further, additional time was
excluded from the 70-day period due to Petitioner’s pending
motions. 18 U.S.C. § 3161(h)(1)(D) (excluding from the time within
which the trial must be commenced any delay resulting for any
pretrial motion from the filing of the motion through the prompt
disposition of the motion).
Petitioner has also failed to show a constitutional speedy trial
violation. See Barker v. Wingo, 407 U.S. 514, 530 (1972)
(identifying the four factors to consider when determining whether
a defendant has been deprived of his Sixth Amendment right to a
speedy trial: “Length of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant”).
Although the delay in this case was nearly two years, Petitioner
was the cause of much of the delay, due in part to seeking new
counsel several times over the course of the case. Petitioner never
asserted his right to a speedy trial and, in fact, sought an
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additional continuance immediately prior to trial. In addition,
Petitioner has not shown prejudice. Therefore, Petitioner has failed
to demonstrate a Sixth Amendment speedy trial violation. See,
e.g., Gearhart, 576 F.3d at 463 n. 3 (finding no Sixth Amendment
speedy trial violation where the defendant sought nine
continuances, defendant did not object to the co-defendants’
requested continuances, and the defendant was not prejudiced by
the delay).
6.
Ground One Subpart 6: Whether the Jury Was
Properly Instructed
Petitioner argues that the Court improperly instructed the
jury in two ways. First, Petitioner claims the Court failed to
properly inform the jurors of their right “to disagree with the
particular law that the indictment was for.” Am. Pet. (d/e 16-2, p.
13 of 16). However, while “[j]ury nullification is a fact, because the
government cannot appeal an acquittal; it is not a right, either of
the jury or of the defendant.” United States v. Perez, 86 F.3d 735,
736 (7th Cir. 1996). Consequently, a jury instruction sanctioning
jury nullification must not be given. See United States v. Davis,
724 F.3d 949, 954-55 (7th Cir. 2013); United States v. Anderson,
Page 40 of 45
716 F.2d 446, 449-50 (7th Cir. 1993).
Petitioner also argues that the Court failed to properly
instruct the jury on the presumption of innocence. This claim is
refuted by the record. See Crim., Jury Instructions (d/e 163 at 27
of 32) (providing in part as follows: “The defendant is presumed to
be innocent of each of the charges. The presumption continues
during every stage of the trial and your deliberations on the
verdict.”); Crim., Tr. at 951 (d/e 205) (November 4, 2011).
7.
Ground One, Subpart 7: Whether Petitioner
Showed Prejudicial Error and Bias
Petitioner argues that he did not receive a fair trial because
the undersigned judge should have recused herself from this case.
Petitioner asserts that the judge “pushed” the case prejudicially
and continually denied Petitioner’s rights under 18 U.S.C. § 3142
(statute pertaining to pretrial release). Am. Pet. (d/e 16-2, p. 15 of
16).
Petitioner orally moved for substitution of judge and, on
October 24, 2011, filed a written motion pursuant to 28 U.SC.
§ 144 with an attached affidavit. Crim., Mot. (d/e 116). In the
affidavit, Petitioner complained that Judge Myerscough (1) stated
Page 41 of 45
on July 11, 2011 that this would be the last attorney appointment
and continuance; (2) made the statement that Petitioner’s pretrial
release request was well written but denied the request, and her
overall tone and wording gave Petitioner a “chilling effect and
overall feeling of prejudice towards” him; (3) entered an Opinion,
the tone of which was biased by failing to include the term
“alleged”’ when describing certain conduct; (4) denied Petitioner’s
requests and motions; and (5) ordered the Government to brief a
case despite the Government having already not objected to a
continuance. Crim., Aff. (d/e 16-1).
The basis for a request for a judge to recuse herself due to
bias generally must stem from an extrajudicial source. Litkey v.
United States, 510 U.S. 540, 544 (1994). “[J]udicial rulings alone
almost never constitute a valid basis for a bias or partiality recusal
motion.” Id. at 541. Petitioner’s allegations are based on judicial
rulings, and he does not point to an extrajudicial source of bias.
Petitioner is not entitled to relief on this ground.
8.
Ground Three: Whether Petitioner Demonstrated Fraud
on the Court
Petitioner argues he is entitled to relief under § 2255 because
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the investigating agents committed fraud. Specifically, Petitioner
argues that the agents filed false documents pertaining to the
search of the Dell laptop belonging to Petitioner. While his
argument is not entirely clear, Petitioner appears to argue that the
agents seized the Dell laptop prior to obtaining a search warrant.
The record refutes Petitioner’s claim that the agents filed false
documents.
The following evidence is taken from the suppression hearing.
Crim., Tr. (d/e 153) (October 3, 2011). On September 11, 2009,
Detective Paula Morrow of the Springfield Police Department
interviewed Petitioner. Id. at 9 (Morrow). During that interview,
Petitioner signed a consent-to-search form pertaining to the Dell
laptop computer. Id. at 16-19. On October 5, 2009, the computer
was turned over to the custody of Michael Mitchell, the resident
agent at Immigration and Customs Enforcement (ICE). Id. at 31.
On October 15, 2009, Agent Eric Bowers of ICE filed a federal
application for a search warrant for the purpose of conducting an
examination of items that had been seized from Petitioner’s
residence on a state search warrant and also on a laptop computer
that had been seized on consent by the Springfield Police
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Department. Id. Tr. at 63-64 (Bowers).
The record does not support Petitioner’s contention that the
laptop was improperly seized before agents obtained a search
warrant because Petitioner consented to the seizure of the laptop.
The subsequent search warrant pertained to conducting an
examination of that seized laptop. To the extent Petitioner argues
that Agent Mitchell lacked the authority to take custody of the
laptop on October 5, 2009 because the search warrant had not
been obtained, that argument also fails. The laptop was in law
enforcement custody by his consent. Petitioner has failed to
demonstrate that the agents filed fraudulent documents.
9.
Ground Four: Whether Petitioner’s Rights Were Violated
In Ground Four, Petitioner lists the constitutional bases for
many of his claims, most of which are addressed above. Two
claims under Ground Four remain to be addressed.
First, Petitioner argues that his First Amendment rights were
violated because the pictures in question were artistic. However,
the jury determined that the pictures Petitioner produced were
child pornography, and child pornography is not protected under
the First Amendment. New York v. Ferber, 458 U.S. 747, 763
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(1982).
Second, Petitioner argues that his Fourth Amendment rights
were violated by the search and seizure of his laptop. As noted
above, this claim was raised on appeal, and this Court was
affirmed. Moreover, the record shows that the laptop was seized
with Petitioner’s consent.
III.
CONCLUSION
For the reasons stated, Petitioner’s Amended Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (d/e 16) is DENIED. No evidentiary
hearing is necessary. Because Petitioner has not made a
substantial showing of the denial of a constitutional right, the
Court also denies a certificate of appealability under Rule 11(a) of
the Rules Governing Section 2255 Proceedings. See 28 U.S.C. §
2253(c)(2).
This case is closed.
ENTER: September 7, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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