Voneida v. Johnson

Filing 48

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Christopher C. Conner on 1/31/2022. (mw)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
STEVEN A. VONEIDA,
Petitioner
v.
JOHN A. JOHNSON,
Respondent

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CIVIL ACTION NO. 1:15-CV-1911
(Judge Conner)

MEMORANDUM
This is a habeas corpus case under 28 U.S.C. § 2241 in which petitioner
Steven A. Voneida challenges his 2008 conviction in this judicial district for
transmitting threats in interstate commerce. We previously dismissed this case for
lack of jurisdiction, but the Third Circuit Court of Appeals reversed and remanded
for consideration of whether Voneida could establish his actual innocence in light of
the United States Supreme Court’s holding in Elonis v. United States, 575 U.S. 723
(2015). Consistent with our court of appeals’ guidance, we have since conducted an
evidentiary hearing and received supplemental briefing from the parties. Upon
consideration of that additional information, we will deny the petition for writ of
habeas corpus.
I.

Factual Background & Procedural History
On February 11, 2008, Voneida was convicted of transmitting threatening

communications in interstate commerce in violation of 18 U.S.C. § 875(c) following a
jury trial before United States District Judge Sylvia H. Rambo. See United States
v. Voneida, No. 1:07-CR-312 (M.D. Pa. Sept. 18, 2008). The court sentenced Voneida

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to a term of imprisonment of nineteen months followed by three years of supervised
release.
Evidence at trial established that on April 18, 2007, two days after the
Virginia Tech mass shooting, 1 Voneida posted several statements to his Myspace2
page that referenced the shooting. See United States v. Voneida, 337 F. App’x 246,
248 (3d Cir. 2009). Voneida posted these statements while responding to prompts in
a survey that asked Myspace users to “[w]rite exactly what[’]s on your mind and
don’t change it.” 3 Among other statements, Voneida wrote the following:
7.

I lost my respect for : the sanctity of human life[.]

11.
Someday : I’ll make the Virginia Tech incident look like a trip to
an amusement park.
21.
Today I : went to school and was shocked that the students were
actually surprised that there are people out there who would shoot them
if given the opportunity.
22.
I wish : that the weary violent types who are sick of the selfrighteous, lecherous, arrogant and debaucherous attitudes displayed by
american youth would band together with me for a day, and allow

1

On April 16, 2007, a student at Virginia Polytechnic Institute and State
University in Blacksburg, Virginia named Seung-Hoi Cho committed a mass
shooting on the university’s campus. See Virginia Tech Shooting, WIKIPEDIA,
https://en.wikipedia.org/wiki/Virginia_Tech_shooting (last visited Jan. 28, 2022).
Thirty-two people were killed during the shooting and another seventeen were
wounded. Id.
2

Myspace is a social networking website where users can share content
with one another. See MYSPACE, https://Myspace.com/ (last visited Jan. 28, 2022).
Although its popularity has significantly declined in recent years, Myspace was the
largest social networking website in the world from 2005 to 2009. See Myspace,
WIKIPEDIA, https://en. wikipedia.org/wiki/Myspace (last visited Jan. 28, 2022).
3

The court will quote statements exactly as they appeared on Voneida’s
Myspace page.
2

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everyone at schools and universities across the nation to reap the bitter
fruit of the seeds that they have been sowing for so long.
(Evidentiary Hearing Exhibit 1.)
The next day, Voneida posted a picture on his Myspace page that included
the caption “Virginia Tech Massacre – They got what they deserved” and listed his
“current mood” as “extatically happy” [sic]. (Evidentiary Hearing Exhibit 2.) The
picture depicted an image of the Virginia Tech shooter holding up two pistols
superimposed on a cross bordered by the words “massacre,” “enrage,”
“recompence,” and “martyr.” (Id.) Voneida also posted a poem called “The Ballad
of Cho seung-hui” below the image, which glorified the actions of the shooter as
follows:
Seung-Hui Cho, the man, you know,
who spoke but none would hear.
‘Till Charon came, his boat aflame,
And full of Hade’s cheer.
He served them down to Hades, hence
to reep [sic] what they had sown,
He served them up to recompence
Their crimes that he had known.
He served them once, he served them twice
he served them three times ten.
He served them ‘till the ferry filled,
and served them once again.
And in the wake of Justice’ sake,
when Libra’s scale had come to break,
The Law came forth to guard the fake
from Justice and her might ache.
Woe to thee who intervened
and halted Ares’Hand! [sic]
His wrath undaunted and unquenched
shall sweep across the land!
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(Id.)
Voneida’s statements on Myspace were seen by a student at Indiana
University of Pennsylvania (“IUP”) who was on Voneida’s Myspace friend list. 4 337
F. App’x at 248. The student showed the statements to another IUP student, and
together they subsequently reported it to authorities. Id.
After being charged and convicted in this district, Voneida appealed to the
United States Court of Appeals for the Third Circuit, arguing there was insufficient
evidence to support his conviction. Id. at 247. The court of appeals affirmed the
judgment of sentence on July 15, 2009. Id. at 250. Applying then-binding circuit
precedent, the court held that the government had no burden to prove that Voneida
intended the statements to be threatening. Id. at 249. Voneida subsequently filed
several motions to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255,
all of which were denied or dismissed by the district court. See Voneida, No. 1:07CR-312.
Seven years after Voneida’s conviction, the Supreme Court announced its
decision in Elonis, 575 U.S. at 723, which clarified the mental state necessary for a
conviction of transmitting threatening communications in interstate commerce
under 18 U.S.C. § 875. Overruling precedent from the Third Circuit and other
courts of appeals, the Court held that a negligent state of mind was not sufficient to

4

Generally speaking, Myspace allowed users to become friends on the
website with other users, which allowed them to see content on each other’s profile
that was not otherwise viewable by the general public.
4

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support a conviction under § 875. Id. at 741. The Court declined to decide whether
a reckless state of mind could support a conviction but clarified that “the mental
state requirement in Section 875(c) is satisfied if the defendant transmits a
communication for the purpose of issuing a threat, or with knowledge that the
communication will be viewed as a threat.” Id. at 740.
Voneida filed the instant petition on October 2, 2015, asserting that the
conduct supporting his conviction was rendered noncriminal by Elonis. (Doc. 1).
We dismissed the petition for lack of jurisdiction on October 16, 2015, finding that
Voneida’s only recourse was to seek leave to file a successive motion under 28
U.S.C. § 2255. (Docs. 4-5). Voneida appealed.
On appeal, the Third Circuit vacated this court’s decision. Voneida
v. Att’y Gen. Pa., 738 F. App’x 735, 739 (3d Cir. 2018). The court concluded that
Voneida could bring his claim through a petition for writ of habeas corpus under
Section 2241 because Elonis “effected an intervening change in substantive law
which may render Voneida’s conduct no longer criminal” and Voneida had no
earlier opportunity to raise a claim based on Elonis. Id. at 737. The court
accordingly remanded the case with instructions to consider whether the evidence
supported Voneida’s claim of actual innocence. Id. at 738-39. We appointed counsel
to represent Voneida and scheduled an evidentiary hearing, which was held on
September 9, 2021. During the hearing, the court heard testimony from Voneida
and two of his friends who contemporaneously saw the relevant Myspace posts,
Joshua Washburne and Shawn Hoover.

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The court first heard testimony from Washburne, who testified that he has
known Voneida since the two became classmates in seventh or eighth grade. (Doc.
44 at 5-6). Both Washburne and Voneida were “somewhat reclusive and not very
social” when they met, which led them to “kind of hit it off early.” (Id.) They
became good friends, maintained contact with one another, and “pretty much did a
lot of things together throughout the years.” (Id. at 6).
Washburne testified that he and Voneida were Myspace friends in April of
2007 and that he saw the statements Voneida made when he was logged into the
website. (Id. at 6-8). Washburne testified that Voneida often posted surveys that
were similar to the one at issue in this case and that such surveys were a popular
trend on Myspace at the time. (Id. at 10). According to Washburne, Voneida’s
responses to these surveys were “usually in the context of just being funny or trying
to get a rise out of people,” which “was typically Steve’s form of humor.” (Id.)
Washburne testified that when he first saw the survey posted by Voneida, he
quickly browsed it, realized it was “just one of those things again,” and then
immediately disregarded it. (Id. at 12).
When asked what reaction he had to Voneida’s statements about the Virginia
Tech shooting, Washburne testified that this was “Steve being Steve again.” (Id. at
13). Washburne elaborated that Voneida:
[H]ad a tendency to post some very questionable nonsocially
acceptable content just to be funny, to get a rise out of people. It did
not necessarily reflect my viewpoint or really anyone else’s. It was
more or less just a let’s see how big of a shock I can give people and see
what kind of response I did.

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(Id.) Washburne testified that when he viewed the particular comments that
Voneida made about the Virginia Tech shooting, his reaction was “oh, okay, it’s just
Steve making a bunch of brash comments” and Washburne accordingly “didn’t
think anything of it.” (Id.) Washburne also testified that Voneida had always had a
“dark” and “twisted” sense of humor and that the sense of humor had “never really
left” Voneida. (Id. at 14). On cross-examination, Washburne stated he and Voneida
often made “dark humor” jokes when they were classmates which “were typically
about violent or sexual acts.” (Id. at 17-18).
Washburne further testified on cross-examination that at the time of the
posts that gave rise to Voneida’s conviction, the Virginia Tech shooting was on
everyone’s mind. (Id. at 19). Washburne understood why other people viewing the
posts on Voneida’s Myspace page would view the posts as disturbing. (Id. at 20).
Washburne testified that he thought Voneida “[w]as trying to get a response out of
people . . . he was trying to see how people would react to it.” (Id. at 22).
The court next heard testimony from Hoover, who testified he had known
Voneida for approximately twenty years and that he was friends with Voneida on
Myspace in 2007. (Id. at 30). Hoover testified that he saw Voneida’s April 18, 2007
statements but that he “had no reaction” to them and was not concerned by them.
(Id. at 31-32). Hoover explained that “Steve was just being Steve, and it just didn’t
bother me.” (Id. at 32). He noted that Voneida had a “morbid” and “strange” sense
of humor and that he shared a similar sense of humor. (Id.) Hoover testified that he
also had no reaction to Voneida’s April 19, 2007 post regarding the Virginia Tech
shooting and that he did not view it as a threat. (Id. at 33-34).
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On cross-examination, Hoover testified that Voneida liked to shock and scare
people. (Id. at 40). He also acknowledged that the Virginia Tech shooting was fresh
in the minds of people around him at the time Voneida made the statements on his
Myspace page. (Id. at 41-42). Hoover testified that he understood why other people
seeing Voneida’s Myspace posts would view them as threatening, but that he
thought Voneida’s statements were funny. (Id. at 42). When asked to explain,
Hoover stated, “Like I said, we have a different sense of humor.” (Id.)
Voneida was the last witness to testify at the evidentiary hearing. Voneida
testified about his mindset when he posted the survey on Myspace: “I was trying to
be as spontaneous and random as I possibly could. So whatever first, I turned my
filter off, whatever came to mind, that’s what went in. . . . I just said exactly the first
thing that came to mind like it was asking.” (Id. at 49-50). Voneida stated that he
was not necessarily looking for “a particular reaction” from people and that he was
not sure that other people would actually see the post. (Id. at 50). Voneida testified
that he thought he was being funny and provocative with some of his answers to the
survey questions and that the survey was “basically something to do.” (Id. at 50-51).
Voneida stated that he did not intend to harm anyone when he posted the
statement that he would make the Virginia Tech shooting “look like a trip to an
amusement park.” (Id. at 51). Voneida testified that he posted the caption “Virginia
Tech Massacre – they got what they deserved” with the intent “to get a rise out of
people to see what kind of response that I could get.” (Id. at 54).
Voneida also testified about a past criminal offense he committed. When
Voneida was 13 years old in 1997, he shot a gun out of his bedroom window at a stop
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sign. (Id. at 55-56). Multiple children were standing underneath the stop sign at the
time Voneida shot the gun, but he testified that he was not aware children were in
the immediate vicinity because of a hill between the stop sign and his window that
blocked his view of the children. (Id. at 56). Voneida was prosecuted as a juvenile
and received a sentence of six months of probation. (Id.) At the close of his direct
examination, Voneida testified that he did not intend to threaten anyone when he
posted the Myspace comments about the Virginia Tech shooting. (Id.)
On cross-examination, Voneida testified that he was a student at the
Harrisburg campus of Pennsylvania State University at the time he posted the
comments on Myspace and that he was living in his parents’ home at the time. (Id.
at 57). Voneida understood that some people were upset and disturbed by his posts
regarding the Virginia Tech shooting but stated that he only expected his Myspace
friends would see the posts. (Id. at 60). Voneida was asked if he could see how
someone would view his statements as threats, and Voneida responded, “Viewed
out of context, yes.” (Id.) He also testified that he spoke about the postings with
campus police officers shortly after they were posted and acknowledged his
understanding that the posts could be concerning to other people. (Id. at 62).
Voneida testified that his classmates at Penn State were frequently talking
about the Virginia Tech shooting in the days after it happened and that he knew his
posts would elicit a reaction from them. (Id. at 63). He also testified as to whether
he intended for people viewing the statements to think that he was going to commit
a mass shooting:

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Q.
And you said I think before that when you were doing these
postings you wrote exactly what was on your mind, right?
A.

Yes.

Q.

This is what you were thinking?

A.

Yes.

Q.
At the time were you fantasizing about committing mass school
shootings?
A.

What was your question?

Q.
You said you were writing about thinking and were you
fantasizing at the time, were you thinking about committing a mass
school shooting?
A.

I was not, no.

Q.

But you were writing about it.

A.

Writing about it? Yea, it would have been one of the topics - -

Q.

Saying, you were saying you were going to do it.

A.

It was among the topics that came up in here.

(Id. at 64).
Voneida also testified about a cartoon he had posted on Myspace that
depicted him holding a gun and a bloody knife with the following caption:
For all the times I grit my teeth
Until they broke and bled.
Calmly standing where I was, and
Killing you all in my head.
You will reap what you have sown
Over and over again
Until you see what you have grown…

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(Id. at 70-71; Evidentiary Hearing Exhibit 3). Voneida explained that he was not
thinking about killing people when he posted the cartoon, but acknowledged that
the cartoon depicted a stylized version of himself and that he posted the cartoon on
his Myspace page. (Doc. 44 at 71-72).
Voneida testified that at the time of the relevant Myspace postings, there
were multiple firearms in his residence that were accessible to him. (Id. at 73).
Among other firearms, a Ruger Mini 14 rifle with a .223 caliber was stored in his old
bedroom. (Id. at 73-74). Voneida testified that the Ruger Mini 14 rifle is not used for
hunting and that it is a semiautomatic weapon. (Id. at 74). He also testified that the
weapon was purchased by his father using Voneida’s money and that he had
ammunition for the weapon in the house. (Id. at 74-75). Voneida possessed
multiple accessories for the Ruger firearm, including an extended magazine, an
advanced optics device, and a muzzle break. (Id. at 75-76). Voneida testified that
the muzzle break enables the gun to stay “pointed straight” after it is fired, which
allows the shooter to get back on target quicker. (Id. at 76). In total, Voneida
estimated that there were at least fifteen firearms in the residence. (Id.)
At the time of the relevant Myspace posts, Voneida was recently divorced
from his wife. (Id. at 80). Although the divorce had occurred about a year prior to
the posts, Voneida stated that he still had some “lingering” anger about the divorce
and that he was “still getting over it.” (Id.)
The court admitted into the record six exhibits during the evidentiary
hearing. Exhibit 1 is the Myspace survey posted by Voneida on April 18, 2007.
Exhibit 2 is the captioned picture of the Virginia Tech shooter that Voneida posted
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on April 19, 2007, along with the associated comments. Exhibit 3 is a compilation of
four cartoons that Voneida posted to his Myspace page, including the depiction of
Voneida holding a gun and a bloody knife. Exhibit 4 is the search warrant, affidavit
of probable cause, and receipt of inventory related to a search of Voneida’s home in
2007. Exhibit 5 is the transcript of the January 14, 2008 suppression hearing and
trial in Voneida’s parallel criminal case in the Dauphin County Court of Common
Pleas, which arose from charges that Voneida illegally possessed firearms. 5 Exhibit
6 is a compilation of police incident reports and witness statements related to the
incident in which Voneida shot a gun at a stop sign.
At the conclusion of the evidentiary hearing, the court ordered supplemental
briefing from the parties. Supplemental briefing has now concluded, (see Docs. 4547), and the petition is ripe for the court’s disposition.
II.

Jurisdiction
Federal prisoners seeking post-conviction relief from their judgment of

conviction or the sentence imposed are generally required to bring their collateral
challenges pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2255(e). The Third Circuit
Court of Appeals has observed that “[m]otions pursuant to 28 U.S.C. § 2255 are the
presumptive means by which federal prisoners can challenge their convictions or
sentences that are allegedly in violation of the Constitution.” Okereke v. United
States, 307 F.3d 117, 120 (3d Cir. 2002) (citing Davis v. United States, 417 U.S. 333,

5

Voneida was found guilty of illegal possession of a firearm. See
Commonwealth v. Voneida, No. CP-22-CR-0003356-2007 (Dauphin Cnty. Jan. 14,
2008).
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343 (1974)). Section 2255(e), often referred to as the savings clause, specifically
prohibits federal courts from entertaining a federal prisoner’s collateral challenge
by an application for habeas corpus unless the court finds that a Section 2255
motion is “inadequate or ineffective.” Id. at 120 (citing In re Dorsainvil, 119 F.3d
245, 251 (3d Cir. 1997)); 28 U.S.C. § 2255(e)).
To demonstrate that a Section 2255 motion is “inadequate or ineffective,” the
petitioner must show “that some limitation of scope or procedure would prevent a §
2255 proceeding from affording him a full hearing and adjudication of his wrongful
detention claim.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir.
2002) (per curiam). Significantly, Section 2255 “is not inadequate or ineffective
merely because the sentencing court does not grant relief, the one-year statute of
limitations has expired, or the petitioner is unable to meet the stringent
gatekeeping requirements of . . . § 2255.” Id. at 539. “It is the inefficacy of the
[Section 2255] remedy, not the personal inability to utilize it, that is determinative.”
Id. at 538.
In Dorsainvil, the Third Circuit held that the remedy under Section 2255 is
“inadequate or ineffective,” permitting resort to Section 2241, when a prisoner who
previously filed a Section 2255 motion on other grounds “had no earlier opportunity
to challenge his conviction for a crime that an intervening change in substantive
law may negate.” Dorsainvil, 119 F.3d at 251.
Our court of appeals has ruled that we have jurisdiction to consider
Voneida’s actual innocence argument under the Dorsainvil exception and has
remanded the case with instructions to consider that argument. See Voneida, 738
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F. App’x at 737-39. Hence, we proceed to the merits of Voneida’s actual innocence
argument.
III.

Legal Standard
The Supreme Court has never determined whether a petitioner may obtain

habeas corpus relief based on a freestanding claim of actual innocence. See Bruce
v. Warden Lewisburg USP, 868 F.3d 170, 183 (3d Cir. 2017). In the absence of
guidance from the Supreme Court, our court of appeals has instructed that habeas
corpus claims based on the petitioner’s assertion of actual innocence should be
“initially tested against the more relaxed (but still stringent) actual innocence
gateway standard.” Id. at 184 (citing United States v. Tyler, 732 F.3d 241, 246 (3d
Cir. 2013)). That standard requires a petitioner to show, in light of all the evidence,
that “it is more likely than not that no reasonable juror would have convicted him.”
Id. (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). This standard is
“purposefully demanding,” and is only satisfied when the petitioner’s case is “truly
extraordinary.” Id. (internal quotation marks omitted) (quoting House v. Bell, 547
U.S. 518, 537-38 (2006)). The petitioner’s failure to satisfy the actual innocence
gateway standard is sufficient for the court to reject “any hypothetical freestanding
actual innocence claim.” Id. (citing Albrecht v. Horn, 485 F.3d 103, 126 (3d Cir.
2007)).
In considering a claim of actual innocence under the gateway standard, a
court is not limited to the record that existed at trial, because actual innocence
means “factual innocence, not mere legal insufficiency.” Id. (quoting Bousley, 523
U.S. at 623-24). The court is therefore “not bound by the rules of admissibility that
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would govern at trial,” and may consider “all the evidence, including that alleged to
have been illegally admitted (but with due regard to any unreliability of it) and
evidence tenably claimed to have been wrongly excluded or to have become
available only after the trial.” Id. (internal quotation marks omitted) (quoting
Schlup v. Delo, 513 U.S. 298, 327-28 (1995)).
The court’s task in reviewing an actual innocence claim is not to exercise its
own judgment as to whether a reasonable doubt existed, but rather to make a
“probabilistic determination about what reasonable, properly instructed jurors
would do.” Id. (quoting Schlup, 513 U.S. at 329). The court must presume that the
jurors would fairly consider all of the evidence presented and conscientiously
adhere to the requirement that guilt be proven beyond a reasonable doubt. Id.
(citing Schlup, 513 U.S. at 329).
IV.

Discussion
In Elonis, 575 U.S. at 723, the Supreme Court clarified the mens rea the

government must prove to secure a conviction for transmitting threats in interstate
commerce under 18 U.S.C. § 875(c). Anthony Douglas Elonis had recently
separated from his spouse, and he posted several statements on Facebook which
appeared to threaten violence against his spouse, his coworkers, several police
officers, the students at a nearby kindergarten, and an FBI agent. Id. at 726-31.
Despite his assertion that the statements were meant only as fictitious rap lyrics,
Elonis was indicted in the Eastern District of Pennsylvania for transmitting threats
in interstate commerce in violation of Section 875(c). Id. at 731. He sought to have
the indictment dismissed for failing to allege that he had intended to threaten
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anyone, but the court denied the motion because then-binding Third Circuit
precedent required only that Elonis “intentionally made the communication, not
that he intended to make a threat.” Id. Elonis subsequently sought a jury
instruction stating that he could only be convicted if he intended to communicate a
threat, but the court rejected the request and instead instructed that
[a] statement is a true threat when a defendant intentionally makes a
statement in a context or under such circumstances wherein a
reasonable person would foresee that the statement would be
interpreted by those to whom the maker communicates the statement
as a serious expression of an intention to inflict bodily injury or take
the life of an individual.
Id. The jury convicted Elonis on four of the five counts in the indictment. Id. at 732.
Elonis appealed, and the Third Circuit affirmed. Id.
The Supreme Court granted certiorari and reversed. The Court noted that
when a criminal statute is silent as to the mens rea element, courts must read into
the statute “that mens rea which is necessary to separate wrongful conduct from
otherwise innocent conduct.” Id. at 736 (internal quotation marks omitted) (quoting
Carter v. United States, 530 U.S. 255, 269 (2000)). In the context of a charge for
transmitting threats in interstate commerce, “‘the crucial element separating legal
innocence from wrongful conduct’ is the threatening nature of the communication.”
Id. at 737 (quoting United States v. X-Citement Video, Inc., 513 U.S. 64, 73 (1994)).
“The mental state requirement must therefore apply to the fact that the
communication contains a threat.” Id.
The Court concluded that the reasonable person standard applied by the
district court, which the Court characterized as a negligence standard, was

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“inconsistent with ‘the conventional requirement for criminal conduct—awareness
of some wrongdoing.’” Id. at 737-38 (quoting Staples v. United States, 511 U.S. 600,
606-07 (1994)). The Court held that a defendant may be convicted under Section
875(c) only if the government establishes that the defendant transmitted a
communication either “for the purpose of issuing a threat” or “with knowledge that
the communication will be viewed as a threat,” but that a negligent state of mind is
not sufficient. Id. at 740-41. The Court declined to decide whether a conviction
could be obtained based on a reckless state of mind, leaving that issue for further
development by lower courts. Id.
Voneida argues that Elonis renders his conduct noncriminal: that his
conviction and sentence should be vacated because there is no evidence he acted
with the purpose of issuing a threat or with knowledge that his Myspace posts
would be perceived as threats. (Doc. 45 at 7). Respondent argues to the contrary,
that there is ample direct and circumstantial evidence of Voneida’s purposeful or
knowing mens rea such that Voneida cannot meet his burden to show his actual
innocence. (Doc. 46 at 5).
Having reviewed the evidence of record and the parties’ arguments, we will
deny Voneida’s petition for writ of habeas corpus. Voneida has failed to show that
“it is more likely than not that no reasonable juror would have convicted him,” see
Bruce, 868 F.3d at 184, as there is significant evidence from which a reasonable
juror could conclude that Voneida posted the relevant statements on Myspace
either for the purpose of issuing a threat or, at minimum, with knowledge that the
statements would be perceived as threats.
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The most notable evidence working against Voneida is his own testimony.
Voneida repeatedly denied that he acted with the purpose of issuing a threat. (Doc.
44 at 60). But he expressly acknowledged that his statements, when “[v]iewed out
of context,” could be seen as threats. (Id.) Similarly, Voneida testified that he was
not thinking about committing a mass shooting when he posted the statements on
Myspace, but he acknowledged that the possibility of him committing a mass
shooting “was among the topics that came up” in his statements. (Id. at 64). These
admissions by Voneida provide direct evidence that he knew other people would
perceive his statements as threats, which is all that the government must prove
under Elonis. Voneida’s testimony—standing alone—is sufficient to refute his claim
of actual innocence.
This direct evidence, however, is just the tip of the proverbial iceberg.
Ample circumstantial evidence also supports Voneida’s conviction. Voneida’s
assertion that he would someday “make the Virginia Tech incident look like a trip
to an amusement park” was made two days after the Virginia Tech shooting, at a
time when the shooting was a focal point of discussion across college campuses.
During the hearing, Voneida admitted he knew the shooting was top-of-mind for his
classmates, (see id. at 63), and he indicated that it was his goal to get a reaction—“a
rise”—out of them, (see id. at 54). The timing of Voneida’s statement coupled with
his status as a college student and his knowledge of his classmates’ concerns
obviously allow a reasonable juror to infer that Voneida knew his statements would
be perceived as threats.

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Voneida’s access to approximately fifteen firearms and apparent readiness to
use them could also allow a reasonable juror to find the requisite mens rea. Voneida
testified that many of the firearms in his house were used for hunting purposes and
that everyone in his family was a hunter, (see id. at 83), but he also acknowledged
that at least one of the firearms in the house—the Ruger Mini 14 rifle—was a
semiautomatic weapon that would not be used for hunting, (id. at 73-74). Voneida
testified that he owned several accessories for the semiautomatic weapon that
enabled the weapon to hold additional ammunition and facilitated the user’s ability
to return to the target after firing a round. (Id. at 75-76). Reasonable jurors viewing
this evidence could conclude that Voneida was prepared to commit a mass shooting,
and, by extension, that he intended for his Myspace posts to be perceived as threats.
The testimony of Washburne and Hoover also support a reasonable juror’s
conclusion that Voneida intentionally or knowingly made threatening statements.
Both Washburne and Hoover testified that Voneida had a morbid sense of humor
and that he often made statements that were intended to shock people. (See id. at
12, 32, 40). They further testified that while they did not perceive Voneida’s
statements as threats, they understood why other people would be disturbed by the
statements. (See id. at 20, 42). Hoover acknowledged that other people viewing the
statements might perceive them as violent and threatening. (Id. at 42). This
testimony, especially coming from two individuals who identified as long-time
friends of Voneida’s, further supports a reasonable juror’s conclusion that Voneida
posted the statements on his Myspace page with the intent or knowledge that they
would be perceived as threats.
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Finally, although it does not directly establish Voneida’s state of mind at the
time he posted the statements on Myspace, evidence in the record also suggested
that Voneida was angry and had violent tendencies. Most notably, Voneida posted
on Myspace a cartoon depiction of himself holding a gun and a bloody knife with
the caption:
For all the times I grit my teeth
Until they broke and bled.
Calmly standing where I was, and
Killing you all in my head.
You will reap what you have sown
Over and over again
Until you see what you have grown…
(Evidentiary Hearing Exhibit 3). Evidence also indicated that Voneida still had
lingering anger about his recent divorce when he posted the statements on
Myspace. In addition, he had recklessly fired a gun at a stop sign when he was a
teenager. (See Doc. 44 at 55-56, 80; Evidentiary Hearing Exhibit 6). This evidence—
viewed alongside the testimony of Voneida, Hoover, and Washburne, the timing of
Voneida’s statements, and Voneida’s access to firearms—provides ample support
for a reasonable juror to conclude that Voneida intentionally made threatening
statements, or that he knew his statements would be perceived as threats.
We conclude Voneida has not met his burden to show it is more likely than
not that no reasonable juror would have convicted him. In light of all of the above

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evidence, reasonable jurors could readily conclude that Voneida acted with a
purposeful or knowing mindset as required by Elonis. 6
V.

Conclusion
We will deny the petition for writ of habeas corpus. An appropriate order

shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated:

January 31, 2022

6

We do not reach the issue of whether a mens rea of recklessness is sufficient
to convict under Section 875(c).
21