Gourlay v. Curtin

Filing 13

OPINION and ORDER denying 6 Petition for Writ of Habeas Corpus Signed by District Judge Bernard A. Friedman. (CMul)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KENNETH GOURLAY,
Petitioner,
v.

Civil No. 10-CV-13191
HON. BERNARD A. FRIEDMAN

JOSEPH BARRETT,
Respondent.
_____________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
This matter is before the Court on petitioner Kenneth Gourlay’s petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, petitioner challenges his
convictions for two counts of child sexually abusive activity, Mich. Comp. Laws § 750.145c(2);
two counts of using a computer to communicate with another to commit child sexually abusive
activity, id. § 750.145d(2)(f); two counts of distributing or promoting child sexually abusive
material, id. § 750.145c(3); two counts of using a computer to communicate with another to
commit distribution of child sexually abusive material; id. § 750.145d(2)(d); third-degree
criminal sexual conduct (“CSC”), id. § 750.520d(1)(a); and soliciting a child for immoral
purposes, id. § 750.145a.
The trial court sentenced petitioner to concurrent prison terms of six to twenty
years for the child sexually abusive activity and using a computer to communicate with another
to commit child sexually abusive activity convictions; three to seven years for the distributing or
promoting child sexually abusive material convictions, four to ten years for the using a computer
to communicate with another to commit distribution of child sexually abusive material

convictions, five to fifteen years for the CSC conviction, and 145 days for the soliciting a child
conviction. For the reasons that follow, the petition for a writ of habeas corpus is denied.
I.

BACKGROUND

Petitioner was convicted on March 9, 2007, following a jury trial in the
Washtenaw County Circuit Court. This Court recites verbatim the relevant facts relied upon by
the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28
U.S.C. § 2254(e)(1).

See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).

Justin Berry, at the age of 13, obtained a web camera, which he
soon used to broadcast pornographic images of himself over the
Internet. Berry also created his own website, the “justinscam”
website, which he used to broadcast the images.
Defendant, who owned Chain Communications, a web hosting
company, contacted Berry, informing Berry that he was
watching Berry over the Internet. Defendant and Berry began to
communicate on a daily basis. They talked about computers, but
Berry also informed defendant that he wanted to take his website
to “the next level.” He wanted to place his website with a web
hosting company and he wanted the website to have a
members-only section. Defendant and Berry discussed different
ideas for the new website.
In January 2002, the new website, the “JFWY” website, was
created. The purpose of the website was to allow Internet
viewers to watch Berry engage in pornographic acts. Chain
Communications hosted the website. Defendant registered the
domain name, created a members-only section, and programmed
the website with a JAVA applet, which provided a near live
streaming image. According to Berry, defendant watched the
images broadcasted over the website.
In the spring of 2003, Berry moved into an apartment, which he
set up with several web cameras so that his Internet viewers
could watch him day and night. Berry discussed the apartment
and the cameras with defendant. He also informed defendant
that he was going to create a new website, the “mexicofriends”
website. The purpose of this website was also to allow Internet
viewers to watch Berry engage in pornographic acts. Chain
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Communications hosted the website, and defendant registered
the domain name, created a members-only section, and
programmed the website with the JAVA applet.
Defendant denied knowing that Berry was broadcasting
pornographic images of himself over the JFWY and
mexicofriends websites. He believed that the JFWY website was
a “rouse.” Berry explained to him that the website only
contained pictures of Berry in “suggestive” poses and that the
website’s name stood for “just f* * * * * * with you.” With the
website, Berry “was just f* * * * * * with those pedophiles on
the [I]nternet who thought they could get child pornography.”
When Berry created the mexicofriends website, defendant was
led to believe that the website would only contain pornographic
images of Berry’s Mexican friends. When defendant learned that
the website had pornographic images of Berry, he believed that
Berry was over the age of 18.
People v. Gourlay, No. 278214, 2009 WL 529216, at *1B2 (Mich. Ct. App. Mar. 3, 2009).
The Court adds these additional facts from the record:
Petitioner grew Berry’s child pornography business from a home-based, part-time
site to a 24/7 operation.

The record contains an abundance of evidence consisting of chats

between Berry and petitioner showing that petitioner was sexually and romantically attracted to
Berry.

(March 6, 2007, T. pp. 178, 220–22, 235, 236–37.)
Petitioner persuaded Berry to continue producing his child pornography because it

was “lucrative,” and that Berry should “milk” it for all it was worth. (March 7, 2007, T. pp. 234–
35.)

While petitioner claims that Berry had many other legitimate web sites on petitioner’s

internet server, Berry’s Mexicofriends.com web site accounted for 51% of petitioner’s Internet
traffic on his server.

(March 6, 2007, T. pp. 22–23, 24.)

Furthermore, child pornographic

images from Berry’s web sites were found on petitioner’s hard drive under a folder labeled

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“Ken.”1

(Id. at 31.)

Petitioner’s conviction was affirmed on appeal. See Gourlay, 2009 WL

529216, at *1, lv. den. 772 N.W.2d 382 (2009).
Petitioner has filed a habeas petition seeking relief on the following claims:
I. The court’s failure to instruct the jury on a substantial
defense—federal preemption and immunity for an internet service
provider who does not create the child pornographic
content—resulted in plain error affecting petitioner’s substantial
rights; alternatively, defense counsel’s failure to request a proper
federal preemption instruction amounted to ineffective assistance
of counsel.
II. Newly discovered Brady information demonstrates that the
prosecution’s primary witnesses gave materially false testimony
and concealed material inducements, and petitioner was entitled to
an evidentiary hearing on the issue pertaining to being deprived of
his rights of confrontation, due process, and a fundamentally fair
trial.
III. Petitioner was deprived of the effective assistance of counsel
when counsel failed to investigate and present available
exculpatory physical evidence, from a computer hard drive,
supporting his claim that child pornography was not in his
possession knowingly; and was not distributed over the internet.
II.

STANDARD OF REVIEW

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claimB
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
_____________________________________
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Petitioner was separately convicted of thirteen counts of third-degree criminal sexual conduct in another case. He
unsuccessfully challenged this conviction in another habeas petition. Gourlay v. Curtin, No. 10-CV-13746, 2013
WL 3190332 (E.D. Mich. June 20, 2013).

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established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
A decision of a state court is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of
law or if the state court decides a case differently than the Supreme Court has on a set of
materially indistinguishable facts.

Williams v. Taylor, 529 U.S. 362, 405–06 (2000).

An

“unreasonable application” occurs when “a state court decision unreasonably applies the law of
[the Supreme Court] to the facts of a prisoner’s case.” Id. at 409.

A federal habeas court may

not “issue the writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or incorrectly.”
Id. at 410-11.

“[A] state court’s determination that a claim lacks merit precludes federal habeas

relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)).

Therefore, in order to obtain habeas relief in federal court, a state

prisoner is required to show that the state court’s rejection of his claim “was so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Id. at 103. In other words, a habeas petitioner
should be denied relief as long as it is within the “realm of possibility” that fairminded jurists
could find the state court decision reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152
(2016).
III.

DISCUSSION
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A. Claim I—The jury instruction claim
Petitioner contends that he was denied a substantial defense because the trial court
judge failed to instruct the jury on 47 U.S.C. § 230, which provides civil immunity to internet
service providers who do not create the child pornographic content at issue, and that his counsel
was ineffective for failing to request this instruction.

Though respondent contends that

petitioner’s first claim is procedurally defaulted because trial counsel failed to request such
instruction or object, the Court will decide this claim on the merits.
Petitioner’s claim is meritless because the jury instructions given accurately
reflected Michigan law regarding production and distribution of child pornography, and a § 230
instruction would have been inapplicable.
The Michigan Court of Appeals, too, held against petitioner on this instructional
claim:
Defendant argues that the trial court erred in failing to instruct the
jury on federal law, 47 USC 230 (§ 230), and how it relates to
whether defendant could be convicted of the pornography offenses.
Specifically, defendant argues that the jury should have been
instructed that he could not be convicted of the pornography
offenses unless it found that he actually contributed to the creation
of the child pornography. The jury also should have been
instructed, defendant claims, that an Internet service provider does
not create pornography by providing bandwidth or by providing
technical or artistic assistance. This unpreserved claim of
instructional error is reviewed for plain error affecting defendant’s
substantial rights.
Pursuant to § 230, “[n]o provider or user of an interactive
computer service shall be treated as the publisher or speaker of any
information provided by another information content provider.” 47
USC 230(c)(1). An “information content provider” is “any person
or entity that is responsible, in whole or in part, for the creation or
development of information provided through the Internet or any
other interactive computer service.” 47 USC 230(f)(3). An
“interactive computer service” is “any information service, system,
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or access software provider that provides or enables computer
access by multiple users to a computer server, including
specifically a service or system that provides access to the Internet
and such systems operated or services offered by libraries or
educational institutions.” 47 USC 230(f)(2). There is no dispute
that Berry was an information content provider for the JFWY and
mexicofriends websites and that defendant, acting as Chain
Communications, was an interactive computer service provider.
Plaintiff claims that defendant was not entitled to a jury instruction
on § 230 because the federal statute only provides immunity from
civil liability. There is language in federal civil cases that could
suggest Congress only intended to protect interactive computer
service providers from civil liability. However, because the federal
courts in those cases were not required to address whether § 230
provides immunity from a criminal prosecution, we do not find the
statement from Zeran and other similar statements persuasive on
the issue. Rather, to determine whether § 230 applies to criminal
prosecutions, we look to the language of the statute.
In § 230, Congress specified the effect [it] was to have on state
laws:
Nothing in this section shall be construed to prevent
any State from enforcing any State law that is
consistent with this section. No cause of action may
be brought and no liability may be imposed under
any State or local law that is inconsistent with this
section. [47 USC 230(e)(3)(emphasis added).]
Undefined statutory terms should be afforded their common,
generally accepted meaning. . . . The term “‘[a]ny’ means ‘every;
all.’” Nat’l Pride At Work, Inc. v. Governor, 481 Mich. 56, 77, 748
N.W.2d 524 (2008), quoting Random House Webster’s College
Dictionary (1991). Accordingly, the phrase “any State or local
law” includes civil and criminal laws. Thus, because Congress
intended that no liability may be imposed under a state criminal
law that is inconsistent with § 230, we reject plaintiff’s argument
that § 230 does not apply to criminal prosecutions.
Before trial, defendant moved to quash the pornography charges on
the basis that they were “specifically preempted and exempted
from state prosecution” by § 230. The trial court denied the motion
to quash. It held that § 230 did not preempt the prosecution of the
pornography offenses because MCL 750.145c was consistent with
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§ 230. Defendant does not challenge the trial court’s ruling on the
motion to quash. He provides no argument that, based on the
elements of MCL 750.145c(2) and (3), criminal prosecutions and
resulting convictions for either crime would be inconsistent with §
230. Because the trial court held that MCL 750.145c was not
inconsistent with § 230, and because defendant does not challenge
this ruling, we find no plain error in the trial court’s failure to sua
sponte instruct the jury on § 230.
Gourlay, 2009 WL 529216, at * 2B3 (some internal citations omitted).

In other words, the

Michigan Court of Appeals found that § 230 does not apply to petitioner.

Section 230 provides

general civil liability for internet service providers who simply make others’ content available.
Otherwise, it does not “prevent any State from enforcing any State law that is consistent with this
section.”

§ 230(e)(3). The Michigan Court of Appeals held that because the criminal laws at

issue punish the intentional actions of internet service providers rather than the mere facilitation
protected by § 230, they are not inconsistent with § 230.

The Court, having reviewed § 230 and

the briefing, agrees.
The question is whether the lack of an inapplicable § 230 instruction had a
substantial and injurious effect or influence on the jury’s verdict. See Hedgpeth v. Pulido, 555
U.S. 57, 61–62 (2008).

An omission or incomplete instruction is less likely to be prejudicial

than a misstatement of the law. Henderson v. Kibbee, 431 U.S. 145, 154–55 (1977). The
question must be considered in the context of the entire jury charge. Jones v. United States, 527
U.S. 373, 391 (1999). The nature of which jury instructions the trial court judge gives is a
matter of state law, and a federal court may not grant a writ of habeas corpus simply because it
dislikes the state court’s decision. Newton v. Million, 349 F.3d 873, 879 (6th Cir. 2003).
Here, the Michigan Court of Appeals thoroughly articulated the elements
necessary to convict a defendant of child sexually abusive activity and of distributing or
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promoting child sexually abusive material under the criminal laws at issue. See Gourlay, 2009
WL 529216, at * 4–5.
informed the jury.

The jury instructions, when viewed in their entirety, adequately

The trial court judge instructed them that they were required to find that

petitioner “persuaded, induced, enticed, coerced, caused or knowingly allowed a child to engage
in child sexually abusive activity. And second, that the child sexually abusive activity was for
the purpose of producing child sexually abusive material.”

The jury was instructed on each

count which required a finding that petitioner intentionally accosted, enticed, or solicited a child
for immoral purposes to produce sexually abusive materials or used a computer in the making of
such materials. (March 9, 2007, T. pp. 213–21).

And omitting the § 230 instruction does cause

a substantial and injurious effect or influence on the jury’s verdict because § 230 is inapplicable.
This Court defers to the Michigan Court of Appeals’ holding. See Seymour v. Walker, 224 F.3d
542, 558 (6th Cir. 2000).
Petitioner further contends that his trial counsel was ineffective by failing to
request that the jury be instructed “regarding federal law which affords immunity to web hosts
who do not create pornographic content.” (Am. Habeas Br. p. 18.)

This claim is meritless

because petitioner was not entitled to the § 230 instruction. See Mathews v. United States, 485
U.S. 58, 63 (1988); Williams v. Kentucky, 124 F.3d 201, 202 (6th Cir. 1997).
To show that he was denied effective assistance of counsel, petitioner must satisfy
a two-prong test.

First, he must demonstrate that counsel’s performance was so deficient that

the attorney was not functioning as the “counsel” guaranteed by the Sixth Amendment.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
counsel’s performance prejudiced his defense. Id.

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Second, petitioner must show that his

However, “[o]mitting meritless arguments

is neither professionally unreasonable nor prejudicial.” Coley v. Bagley, 706 F.3d 741, 752 (6th
Cir. 2013).
Here, petitioner’s trial counsel made a logical decision not to request an
inapplicable, meritless jury instruction.

This was not prejudicial to petitioner’s defense, so his

ineffective assistance of counsel argument also fails.

B. Claim II—The Brady claim
Petitioner alleges that he was improperly denied a new trial that he requested
based on newly discovered evidence of PayPal payments.

Further, he alleges that the

prosecution failed to disclose payments made to Berry by reporter Kurt Eichenwald and emails
between them about child pornography.

Petitioner submits that this failure affected his

Confrontation Clause rights.
Regarding the PayPal payments, Petitioner is not entitled to habeas relief on this
newly discovered evidence claim.

Freestanding claims of actual innocence based on newly

discovered evidence are not cognizable on federal habeas review, absent independent allegations
of constitutional error at trial. See Cress v. Palmer, 484 F.3d 844, 854–55 (6th Cir. 2007)
(collecting cases).

Petitioner is not entitled to relief for his newly discovered evidence claim

under Supreme Court precedent. See Wright v. Stegall, 247 F. App’x 709, 711 (6th Cir. 2007).
Regarding petitioner’s failure-to-disclose argument, he asserts that the
prosecution conspired to keep hidden payments from Eichenwald to Berry, emails about child
pornography, and Eichenwald’s memory loss problems, in violation of Brady v. Maryland, 373
U.S. 83 (1963). There are three elements to a Brady claim: (1) the evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the
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evidence must have been suppressed by the State, either willfully or inadvertently; and (3)
prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281–82 (1999). This “is a
difficult test to meet.” Jamison v. Collins, 291 F.3d 380, 388 (6th Cir. 2002).
The Court denies relief for two reasons: First, the PayPal payments had no
connection to the JFWY and mexicofriends websites; they therefore were not directly relevant to
whether petitioner committed the charged offenses. See Gourlay, 2009 WL 529216, at *6.
Because petitioner has failed to offer any evidence or argument to show that the payments
contained exculpatory material, petitioner is not entitled to relief.
Second, any additional impeachment evidence in connection with the PayPal
payments would have been cumulative of the extensive evidence that was admitted at trial to
impeach Eichenwald’s credibility. The record reflects extensive testimony pertaining to the
$2,000 payment. (See March 8, 2007, T. pp. 87–104.)

The record also reflects that testimony

was elicited to discredit Eichenwald in an attempt to show he was motivated by greed. (Id. at 84–
87.)
Neither is petitioner entitled to relief on his Confrontation Clause sub-claim.
There is no Confrontation Clause problem when the witness testifies at trial and is subject to
unrestricted cross-examination.

See United States v. Owens, 484 U.S. 554, 560 (1988), and

Crawford v. Washington, 541 U.S. 36, 59, n.9 (2004).

See also California v. Green, 390 U.S.

149, 162 (1970) (“Where the declarant is not absent, but is present to testify and to submit to
cross examination, our cases, if anything, support the conclusion that the admission of his out of
court statements does not create a confrontation clause problem.”).

Because Berry and

Eichenwald testified at petitioner’s trial and were subject to cross-examination, petitioner’s

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Confrontation Clause rights were not violated. Petitioner is not entitled to habeas relief on his
second claim.
C. Claim III—The ineffective assistance of counsel claim
Petitioner alleges that his trial counsel was ineffective for failing to investigate
and present available exculpatory physical evidence from a computer hard drive to show that the
child pornography was not knowingly in his possession or distributed over the internet.
Petitioner also claims that trial counsel was ineffective for failing to call an expert witness to
testify that the three pornographic videos could have been loaded by other means onto
petitioner’s hard drive other than petitioner.
A habeas petitioner’s claim that trial counsel was ineffective for failing to call an
expert witness cannot be based on speculation. See Keith v. Mitchell, 455 F.3d 662, 672 (6th
Cir. 2006). Petitioner offers no evidence to support his claim that someone other than petitioner
loaded the videos onto his hard drive.

Further, a claim “based on counsel’s failure to call or

interview witnesses must present this evidence in the form of the actual testimony by the witness
or affidavits.”

United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991); Harrison v.

Quarterman, 496 F.3d 419, 428 (5th Cir. 2007); Dows v. Wood, 211 F.3d 480, 486 (9th Cir.
2000).

Petitioner has failed to provide the names of potential witnesses or supporting affidavits

of the content of their presumed testimony.

Consequently, petitioner fails to show that trial

counsel was ineffective and is not entitled to relief on his third claim.
IV.

CONCLUSION

Based upon the foregoing,

IT IS ORDERED that the petition for a writ of habeas corpus is denied.
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IT IS FURTHER ORDERED that a certificate of appealability is denied because
petitioner has failed to make a substantial showing of the denial of a federal constitutional right,
and leave to appeal in forma pauperis is denied because the appeal would be frivolous. See Dell
v. Straub, 194 F. Supp. 2d 629, 659 (E.D. Mich. 2002).
_s/ Bernard A. Friedman_____
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: April 11, 2017
Detroit, Michigan

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