Riley v. Weber et al

Filing 36

ORDER adopting 32 Report and Recommendation; overruling 34 Objection to Report and Recommendation; granting 18 Motion to Dismiss; granting 22 Motion for Summary Judgment; and declining to issue a certificate of appealability. Signed by Chief Judge Jeffrey L. Viken on 9/21/17. (SB) Modified on 9/21/2017 (SB).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 15-5073-JLV

JAMES DUANE RILEY,
Petitioner,

ORDER

vs.
DOUGLAS WEBER, MIKE DURFEE
STATE PRISON, SPRINGFIELD, SD;
and MARTY JACKLEY, ATTORNEY
GENERAL OF THE STATE OF SOUTH
DAKOTA,
Respondents.
INTRODUCTION

Petitioner James Duane Riley, an inmate at the Mike Durfee State Prison
in Springfield, South Dakota, filed an amended petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.

(Docket 16).

The matter was referred to United

States Magistrate Judge Veronica L. Duffy under 28 U.S.C. § 636(b)(1)(B).
Judge Duffy issued a report recommending the court dismiss Mr. Riley’s habeas
petition with prejudice.
objection.

(Docket 32 at p. 66).

Mr. Riley timely filed his

(Docket 34).

The court reviews de novo those portions of the report and
recommendation which are the subject of objections.

Thompson v. Nix,

897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1).

The court may

then “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”

28 U.S.C. § 636(b)(1).

Mr.

Riley’s objection is overruled and the report and recommendation is adopted in
full.
PETITIONER’S OBJECTION
Mr. Riley’s objection to the report and recommendation is limited to Claim
3 of the amended petition.

(Docket 34 at p. 1). Petitioner’s objection is that his

“right to due process was violated when he was convicted on insufficient
evidence. . . . [And] [t]he magistrate erred in finding that the South Dakota
Supreme Court’s decision was not objectively unreasonable.”

Id. at pp. 1 & 5.

ANALYSIS
Petitioner acknowledges the magistrate judge “correctly noted the
applicable legal standards for federal review of a state court conviction being
challenged on insufficiency grounds.”

Id. at p. 1 (referencing Docket 32 at p. 59)

(“When a federal court reviews a sufficiency of the evidence claim as to a state
court conviction, the appropriate standard to apply is ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt.’ ”) (citing Jackson v. Virginia, 443 U.S. 307, 319 & 324, (1979) (emphasis
in original).

Petitioner also acknowledges the magistrate judge “correctly noted

the deference given to the underlying state court determination that the evidence
in a particular case was sufficient to sustain the conviction.”

Id. at p. 2

(referencing Docket 32 at p. 60) (“[W]hen a federal habeas court reviews a state
court decision, it may not overturn that decision rejecting a sufficiency of the
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evidence challenge simply because the federal court disagrees with the state
court.

The federal court instead may do so only if the state court decision was

‘objectively unreasonable.’ ”) (citing Coleman v. Johnson, 566 U.S. 650, 132 S.
Ct. 2060, 2062 (2012) (some internal quotation marks and citation omitted).
Mr. Riley claims the magistrate judge “erred in applying these principals to the
facts of the case.”

Id. at p. 2.

Mr. Riley was convicted by a jury in state court of count I of a two-count
indictment charging “possession of child pornography in violation of SDCL
22-24A-3(3).”
(“Riley I”).

South Dakota v. Riley, 841 N.W.2d 431, 434-35 (S.D. 2013)

Count I was associated with what the court identified as “the full

video,” and Count II was associated with “the partial video.”
jury failed to reach a verdict as to Count II.

Id. at 435.

The

Id.

The magistrate judge noted the South Dakota Supreme Court found the
prosecution “relied entirely on circumstantial evidence to convict Mr. Riley of
possessing the [full] video.”

(Docket 32 at p. 62) (referencing Riley I, 841 N.W.2d

at 436) (“Here, the State presented no direct evidence that Riley possessed the
full video, but rather relied on circumstantial evidence to convict Riley.”).

The

South Dakota Supreme Court identified the circumstantial evidence presented
at trial and the reasonable inferences from the evidence as follows:
[Agent] Kuchenreuther testified that he downloaded the full video
from the IP address leased to Riley. Riley I, 841 N.W.2d at 437;
[T]he video file was located in a shared folder within the LimeWire
file-sharing program that was using Riley’s IP address. Id.;
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Riley admitted that he used LimeWire and introduced no evidence
that someone else was using his IP address. Id.;
Riley’s girlfriend testified that he used LimeWire and that he was the
only one who used the computer and the Internet at their home.
Id.; and
[Riley’s girlfriend] further testified that only one computer in the
house was working.
“From this evidence,” the South Dakota Supreme Court concluded “the jury
could reasonably infer that Riley had exclusive access to the computer
associated with his IP address and downloaded the full video.”

Id. at p. 437.

The next grouping of circumstantial evidence presented to the jury and
the reasonable inferences which the South Dakota Supreme Court found from
that evidence was as follows:
[D]uring Riley’s interview with [Agent] Gromer, Riley admitted that
he glanced at child pornography, and his responses to Gromer’s
questions suggested Riley was aware that pornographic videos had
been on his computer. Id.;
Riley’s girlfriend testified that she informed Riley at 1:00 a.m. that
investigators had been at the house and that they would return at
6:00 a.m. Id. at p. 438;
[Riley’s girlfriend] informed Riley the officers would be returning,
and before the officers arrived, she observed Riley working on his
computer but did not know what he was doing. Id.;
[Agent] Eisenbraun [testified] that the forensic evaluation revealed
the computer’s operating system had been reinstalled at 5:37 a.m.,
approximately one hour before officers arrived at Riley’s residence.
Id.;
[Agent] Eisenbraun testified that in his opinion, this reinstallation
likely overwrote the files containing videos of child pornography on
Riley’s computer. Id.;
4

Riley admitted to using LimeWire, but LimeWire was not found on
his computer. Id.; and
[Agent] Eisenbraun also testified that a significant amount of music
[which Riley stated he had acquired through LimeWire] had been
taken off of Riley’s computer prior to the operating system
reinstallation. Id.
“From this evidence,” the South Dakota Supreme Court concluded “the jury
could reasonably infer Riley deleted a number of items, including the full video
[Agent] Kuchenreuther downloaded on October 20, 2009, and [that Riley]
reinstalled the operating system before law enforcement arrived, effectively
deleting the video.”

Id. at p. 438.

The last grouping of circumstantial evidence presented to the jury and
from which the South Dakota Supreme Court concluded reasonable inferences
were appropriate was as follows:
[Agent] Eisenbraun testified that he used a screen shot from
Kuchenreuther’s investigation to perform a text-string search,
which searched Riley’s computer for text strings corresponding to
file names generated during Kuchenreuther’s investigation. Id.;
[Agent] Eisenbraun found multiple text strings, including text
strings related to the full video, on the unallocated space of Riley’s
computer. Id.; and
[Agent] Eisenbraun testified that these text strings, or file names,
‘‘clearly . . . suggest[ ] child pornography.’’ Id.
“From this evidence,” the South Dakota Supreme Court concluded “the jury
could reasonably infer that child pornography had been present on Riley’s
computer on October 20, 2009, when Kuchenreuther located the files and
successfully downloaded the full video.”
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Id.

The South Dakota Supreme Court’s analysis acknowledged the law
precluded a “divide-and-conquer analysis” of each individual piece of evidence.
Riley I, 841 at p. 437 (referencing United States v. Arvizu, 534 U.S. 266,
274 (2002) (a review under the totality of the circumstances test precludes
evaluating each factor in isolation in order to create a susceptible innocent
explanation that entitles that factor to no weight).

In conclusion, the South

Dakota Supreme Court found that “reviewing the evidence as a whole and in the
light most favorable to the verdict, we conclude there was sufficient evidence for
a rational jury to find Riley guilty beyond a reasonable doubt.”

Id. at 438.

The magistrate judge referred to Henry David Thoreau’s musing that
“some circumstantial evidence is very strong, as when you find a trout in the
milk”1 in her evaluation of the circumstantial evidence.

(Docket 32 at p. 63).

Mr. Riley’s objection placed great emphasis on the magistrate judge’s use of this
analogy.

(Docket 34 at pp. 3-4).

Mr. Riley argues because the magistrate judge

agreed with the dissent in Riley I that “the text strings found on Riley’s hard drive
“ ‘Some circumstantial evidence is very strong, as when you find a trout in
the milk.’ (Henry David Thoreau). There are two great branches of evidence in a
Criminal Case. They are direct evidence and circumstantial evidence. The
meaning of direct evidence is as plain as the nose on your face. . . . Whatever a
person perceives with any of his physical senses is direct evidence. . . .
Everything else is circumstantial. . . .If it isn’t direct evidence it’s circumstantial
evidence. And if there’s a trout in a can of milk, we know the farmer has dipped
his can into a stream of water. We didn’t see him do it, but we know the
squiggly rainbow didn’t come from a cow’s udder. The finned scrapper getting
his first taste of milk is irrefutable circumstantial evidence of dairy farmer
duplicity!” A Trout in the Milk, Profiles in Prosecution, Mel Harmon, May 2011
(Overview).
https://www.authorhouse.com/bookstore/bookdetail.aspx?bookid=SKU-0004
60042
1

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was equivocal,” and she found this “as odd as finding a trout in the milk for an
innocent man to embed text strings suggestive of child pornography in his
computer,” the magistrate judge erroneously permitted these “suspicious
circumstances” to create “incriminating inferences sufficient to sustain a
verdict.”

Id. at pp. 3-4 (referencing Docket 32 at p. 63).

Mr. Riley ignored the totality of the evidence considered by the magistrate
judge.

The magistrate judge’s analysis concluded that standing alone, each

statement might appear odd, but when considered in conjunction with the other
circumstantial evidence, the oddity evaporates and constitutes strong
circumstantial evidence of guilt.
The circumstantial evidence and the permissible inferences develop as
follows.

Agent Kuchenreuther identified child pornography associated with the

IP address at Mr. Riley’s home in Hermosa, South Dakota.

Agent

Kuchenreuther could not identify the particular computer which was using that
IP address.

Riley’s girlfriend testified there was only one operable computer in

their home and Mr. Riley was the only operator of that computer.

Riley’s

girlfriend testified Mr. Riley was the only person home when Agent
Kuchenreuther associated child pornography with that IP address.

It is a

permissible inference that Mr. Riley was using his own computer when the child
pornography was identified as residing at the IP address.
Agent Eisenbraun testified the text string names were suggestive of child
pornography.

These text strings matched the descriptions witnessed by Agent
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Kuchenreuther on Mr. Riley’s IP address during October 2009.

The full video

had been downloaded from Mr. Riley’s computer by Agent Kuchenreuther in
October 2009.

Two of the text string names matched two of the names on the

list of 79 videos observed at Mr. Riley’s IP address during the January 2010
search of the computer.

The 79 videos identified by Kuchenreuther were no

longer on Mr. Riley’s computer when it was searched in January 2010.

The full

video was not present on the computer during the January 2010 search of the
computer.

It is a permissible inference that Mr. Riley had the full video on his

computer in October 2009.
Mr. Riley argues the magistrate judge erred when she commented “that
‘the jury surely found it odd’ that [Mr. Riley] reinstalled his computer’s operating
system after a long drive home from California . . . in the hours immediately
before the police were coming for his computer.”

(Docket 34 at p. 4).

He

suggests the magistrate judge mistakenly moved this suspicious circumstance
into a valid inference that Mr. Riley “possessed child pornography.”
Mr. Riley’s argument is misplaced.

Id.

Assuming Mr. Riley’s computer

crashed while he was in California, it is suspicious that he would drive 14 hours
home, arrive at 1 a.m., be warned by his girlfriend that law enforcement was
going to be at his home at 6:30 a.m. and then spend the remainder of the night
reinstalling his computer’s operating system.

It is a valid inference from this

circumstantial evidence that Mr. Riley had something on his computer he did not
want seen by law enforcement.

Based on Mr. Riley’s conduct, the jury could
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reasonably infer he intended to eliminate any evidence of child pornography from
his computer.
The magistrate judge concluded “the circumstantial evidence indicating
Mr. Riley in fact possessed child pornography is strong enough that this court
cannot conclude it was ‘objectively unreasonable’ for the South Dakota Supreme
Court to find that a rational trier of fact could have found Mr. Riley guilty beyond
a reasonable doubt.”

(Docket 32 at pp. 65-66).

Based on this conclusion, the

magistrate judge found “the South Dakota state court made factual findings that
were fairly supported in the record and it did not unreasonably apply federal
law.”

Id. at p. 66.

For this reason, the magistrate judge “recommended that

Mr. Riley’s third claim for relief be denied with prejudice and that no certificate of
appealability be issued.”

Id.

The circumstantial evidence presented during Mr. Riley’s state court trial
did not result in a conviction based on an improper inference or mere suspicion.
Wesson v. United States 172 F.2d 931, 933-34 (8th Cir. 1949).

Substantial

evidence supports the jury’s verdict and the decision of the South Dakota
Supreme Court to affirm the verdict.

See United States v. Lam, 338 F.3d 868,

872 (8th Cir. 2003) (“[T]he facts and circumstances relied on by the government
must be consistent with guilt, but they need not be inconsistent with any other
hypothesis, and it is enough to convict if the entire body of evidence is sufficient
to convince the jury beyond a reasonable doubt that the defendant is guilty.”)
(internal citation omitted).

The magistrate judge properly concluded the
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decision of the South Dakota Supreme Court was not “objectively unreasonable.”
Coleman, 132 S. Ct. at 2062.

Mr. Riley’s objection is overruled.
ORDER

The court finds the report and recommendation is an accurate and
thorough recitation of the facts and applicable law. The court further finds the
magistrate judge’s legal analysis is well-reasoned. Having carefully reviewed
the record in this case and good cause appearing, it is
ORDERED that Mr. Riley’s objection (Docket 34) to the report and
recommendation is overruled.
IT IS FURTHER ORDERED that the report and recommendation (Docket
32) is adopted in full.
IT IS FURTHER ORDERED that the respondents’ motions (Dockets 18 &
22) are granted consistent with this order.
IT IS FURTHER ORDERED that the amended petition (Docket 16) is
dismissed with prejudice.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 2253(c) and Rule
11 of the Rules Governing Section 2254 Cases in the United States District
Courts, the court declines to issue a certificate of appealability.
Although the court declines to issue a certificate of appealability, Mr. Riley
may timely seek a certificate of appealability from the United States Court of
Appeals for the Eighth Circuit under Fed. R. App. P. 22. See Rule 11(a) of the

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Rules Governing Section 2254 Cases in the United States District Courts and
Fed. R. App. P. 22.
Dated September 21, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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