Maloney v. USA
Filing
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MEMORANDUM AND OPINION in support of the following Judgment Order.Signed by District Judge Thomas W. Phillips on 4/10/19. (c/m to George Maloney 48255-074 PETERSBURG LOW FEDERAL CORRECTIONAL INSTITUTION Inmate Mail/Parcels P.O. BOX 1000 PETERSBURG, VA 23804) (ADA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
GEORGE MALONEY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Nos. 3:18-cv-104
3:16-cr-23
Judge Phillips
MEMORANDUM OPINION
Petitioner George Maloney (“Petitioner”) filed a pro se motion to vacate, set aside
or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 1]. 1 The United States of
America (“Respondent”) has responded in opposition to his motion [Doc. 4]. Petitioner
has not replied and the time for doing so has passed. See E.D. Tenn. L.R. 7.1(a), 7.2.
I.
Background
Petitioner was indicted for knowingly accessing with intent to view child
pornography that had been transported in interstate commerce, in violation of 18 U.S.C. §
2252A(a)(5)(B) [Case no. 3:16-cr-23, Doc. 1]. Petitioner was also indicted in case number
3:15-cr-52 for being a previously convicted felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). Petitioner signed a plea agreement, pursuant to Fed. R. Crim. P.
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All citations to documents in the record reference case number 3:18-cv-104, unless otherwise
specified.
11(c)(1)(C), and entered pleas of guilty to both charges [see Case no. 3:16-cr-23, Doc. 15].
On March 8, 2017, the Petitioner was sentenced to a total term of imprisonment of 42
months, to be followed by 10 years of supervised release [Case no. 3:16-cr-23, Doc. 27].
Petitioner did not appeal his conviction or his sentence, but timely filed the instant § 2255
motion on March 12, 2018.
II.
Standard of Review
To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error
of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an
error of fact or law ... so fundamental as to render the entire proceeding invalid.” Short v.
United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334
F.3d 491, 496–97 (6th Cir. 2003), cert. denied, 540 U.S. 1133 (2004)). A petitioner “must
clear a significantly higher hurdle than would exist on direct appeal” and show a
“fundamental defect in the proceedings which necessarily results in a complete miscarriage
of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d
427, 430 (6th Cir. 1998).
Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States
District Courts requires a district court to summarily dismiss a § 2255 motion if “it plainly
appears from the face of the motion, any attached exhibits, and the record of the prior
proceedings that the moving party is not entitled to relief.” See also Pettigrew v. United
States, 480 F.2d 681, 684 (6th Cir. 1973) (“A motion to vacate sentence under § 2255 can
be denied for the reason that it states ‘only bald legal conclusions with no supporting factual
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allegations.’”) (quoting Sanders v. United States, 373 U.S. 1, 19 (1963)). If the motion is
not summarily dismissed under Rule 4(b), Rule 8(a) requires the court to determine, after
a review of the answer and the records of the case, whether an evidentiary hearing is
required. If a petitioner presents a factual dispute, then “the habeas court must hold an
evidentiary hearing to determine the truth of the petitioner’s claims.” Huff v. United States,
734 F.3d 600, 607 (6th Cir. 2013) (quoting Valentine v. United States, 488 F.3d 325, 333
(6th Cir. 2007)). An evidentiary hearing is not required “if the petitioner's allegations
cannot be accepted as true because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of fact.” Valentine, 488 F.3d at 333
(quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)).
III.
Analysis
As the Respondent notes, Petitioner raises several claims of ineffective assistance
of his trial counsel, Jonathan A. Moffatt, which the Court will address in the order in which
they are raised.
Ineffective assistance of counsel is a recognized constitutional violation that, when
adequately shown, warrants relief under § 2255. The two-prong test set forth in Strickland
v. Washington, 466 U.S. 668, 687 (1984), governs claims of ineffective assistance of
counsel raised pursuant to 28 U.S.C. § 2255. Huff, 734 F.3d at 606. The Strickland test
provides that, to demonstrate a violation of the Sixth Amendment right to effective
assistance of counsel, “a defendant must establish that [his] attorney’s performance was
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deficient and that the deficient performance prejudiced the defense.” Id. (citing Strickland,
466 U.S. at 687).
The first prong requires a petitioner to show his attorney’s performance was
deficient by demonstrating that counsel’s “representation fell below an objective standard
of reasonableness.” Strickland, 466 U.S. at 688. Stated another way, the petitioner must
show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. at 687. The Supreme Court has
“declined to articulate specific guidelines for appropriate attorney conduct and instead
[has] emphasized that the proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.” Huff, 734 F.3d at 606 (alterations in
original) (quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003)). A reviewing court must
be “highly deferential” to counsel’s performance because:
[a] fair assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the difficulties inherent in
making the evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action “might be considered sound trial
strategy.”
Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Even if a petitioner is successful in overcoming that presumption, he must still
satisfy the second prong of the Strickland test, i.e., prejudice. Thus, a petitioner must show
not only that his counsel’s representation was objectively unreasonable, but also that he
was prejudiced by counsel’s deficiency because there exists “a reasonable probability that,
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but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” McPhearson v. United States, 675 F.3d 553, 563 (6th Cir. 2012) (quoting
Strickland, 466 U.S. at 694).
Although the Strickland Court emphasized that both prongs must be established in
order for the petitioner to meet this burden, it held there is no reason for a court deciding
an ineffective assistance claim to approach the inquiry in the same order or even to address
both components of the inquiry. Strickland, 466 U.S. at 697. “If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.” Id.
A.
Failure to Argue that the Statute of Conviction Violates the First Amendment
As part of his first ground for relief, Petitioner argues that the offense of conviction
violates the First Amendment of the U.S. Constitution “because it contains an attempt to
access child pornography that has been transported in interstate commerce” [Doc. 1 at p.
4]. First, as set forth in the response [Doc. 4 at pp. 4—5], child pornography is not
protected by the First Amendment and the right to possess obscene material does not extend
to child pornography. New York v. Ferber, 458 U.S. 747, 763—64 (1982); Doe v. Boland,
698 F.3d 877, 883 (6th Cir. 2012), cert. denied, 570 U.S. 904 (2013) (“the First
Amendment offers no sanctuary” to child pornography). Thus, even if Petitioner had only
been attempting to access child pornography, his conduct is not protected by the First
Amendment.
More importantly, Petitioner pled guilty to and was convicted of knowingly
accessing with intent to view child pornography, not attempting to do so. Indeed, his plea
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agreement specifies that “defendant knew that the material he accessed via the Internet
contained child pornography” [Case no. 3:16-cr-23, Doc. 15 at ¶ 3, p. 3 (emphasis added)].
The facts supporting his conviction for this charge were read aloud to him during the
change of plea hearing. The Court questioned Petitioner if he understood the charges he
was pleading guilty to and he responded affirmatively. He further affirmed that he was
pleading guilty because he was, in fact, guilty. Thus, Petitioner’s claim that he is being
penalized for “innocent conduct” is contrary to his sworn statements in court and to the
law. Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court
carry a strong presumption of verity.”).
Petitioner’s reliance on the Supreme Court’s decision in Class v. United States, 138
S. Ct. 798 (2018) does not alter this result. In Class, the Court held that a criminal
defendant could raise a constitutional challenge to the statute of conviction on direct appeal
even though the defendant pled guilty. Id. at 805. Class did not address whether a
defendant could challenge the constitutionality of a statute via habeas review, nor did it
address the constitutionality of the statute of conviction at issue in the instant case. Further,
Petitioner admitted to “actual conduct,” not “innocent conduct.” Mr. Moffatt was not
ineffective for failing to raise a patently meritless argument. Chapman v. United States,
74 F. App’x 590, 593 (6th Cir. 2003); Mapes v. Coyle, 171 F.3d 408, 427 (6th Cir. 1999).
B.
Failing to Argue that the Indictment was Defective for Charging Two Crimes
Also contained in his first ground for relief, Petitioner contends that the indictment
was defective because it charged him with both knowingly accessing child pornography
and attempting to access child pornography [Doc. 1 at p. 4]. A duplicitous indictment “sets
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forth separate and distinct crimes in one count.” United States v. Cooks, 455 F. App’x 584,
586 (6th Cir. 2012) (quoting United States v. Davis, 306 F.3d 398, 415 (6th Cir. 2002),
cert. denied, 537 U.S. 1208 (2003); United States v. Campbell, 279 F.3d 392, 398 (6th Cir.
2002). “The vice of duplicity is that a jury may find a defendant guilty on the count without
having reached a unanimous verdict on the commission of any particular offense.”
Campbell, 279 F.3d at 398. However, “[i]t is not duplicitous to allege in one count that
multiple means have been used to commit a single offense.” United States v. Damrah, 412
F.3d 618, 622 (6th Cir. 2005).
As Respondent notes, an indictment that charges two ways of committing the same
offense – attempt and the substantive offense – is not duplicitous or defective [Doc. 4 at
pp. 5—6]. Further, as set forth above, Petitioner pled guilty to the substantive offense –
knowingly accessing with intent to view child pornography. Thus, there was no basis for
Mr. Moffatt to challenge the charge in the indictment and he was not ineffective for failing
to do so.
C.
Failing to Move to Suppress Evidence Seized from His Computer
In both his first and second grounds for relief, petitioner argues that his counsel was
ineffective for failing to move to suppress evidence obtained from his computer [Doc. 1 at
pp. 5—7]. Petitioner argues that the search warrant was not premised on “actual” conduct,
but rather on what he “could have the belief to have done, will do, or possibly intending
to do” [Id. at p. 5]. Also, Petitioner told Mr. Moffatt that he “had multiple users in his
home and at no time did he knowingly accessed [sic] child pornography” [Id.]. He
contends that police told him there was no evidence on his computer “that the contact to
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the United States from Switzerland…of attempting to access this website was true” [Id. at
p. 6]. Petitioner claims he was later told “that there were files of child porn or some photos
that dated back “some years,” yet there was not showing of how any of the evidence was
the result of a reasonable or good faith search” [Id. at pp. 6—7]. Further, Petitioner
complains that he is required to register as a sex offender “for something I still have no
knowledge of” [Id. at p. 7].
Respondent has submitted the search warrant application, approved by United States
Magistrate Judge H. Bruce Guyton on March 2, 2015, and the affidavit in support of that
application by FBI Special Agent Bianca L. Pearson [Doc. 4-1]. The application sought to
search Petitioner’s residence for evidence of a violation of 18 U.S.C. § 2252A, which
prohibits certain activities relating to material containing child pornography. Agent
Pearson’s affidavit states that the FBI obtained information from the Swiss Federal Police
that a computer with an Internet Protocol (“IP) address assigned to Petitioner at his
residence had accessed websites to obtain child pornography [Doc. 4-1 at pp. 4—5]. Agent
Pearson viewed images and videos accessed by the computer with Petitioner’s IP address
and described four images of child pornography [Id. at p. 6].
Failure of counsel to file a meritorious motion to suppress may be ineffective
assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 382—83 (1986), but is not
ineffective assistance per se. Id. at 384. In order to meet his burden of proving ineffective
assistance of counsel for not filing a motion to suppress, Petitioner must show that
counsel’s failure fell below the objective standard of reasonableness, and he “must also
prove that his Fourth Amendment claim is meritorious.” Id. at 375. “Conversely, if such
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a motion would fail, counsel may not be criticized for having accurately assessed his
client’s chances of successfully challenging the warrant.” Worthington v. United States,
726 F.2d 1089, 1093 (6th Cir. 1984), cert. denied, 469 U.S. 827 (1984) (J. Contie,
concurring). In other words, “whether trial counsel … acted incompetently … depends
upon the merits of the search and seizure question.” Id.
Petitioner’s argument seems to be that at least one of the statements in Agent
Pearson’s affidavit – that his computer had contacted the Swiss-based web server – is false
and the evidence seized from his computer should have been suppressed “due to a voided
warrant” Doc. 1 at p. 6]. A defendant may challenge the validity of a search warrant and
the veracity of an affidavit supporting the warrant by requesting a Franks hearing. Franks
v. Delaware, 438 U.S. 154, 155—56 (1978).
If the defendant establishes by a
preponderance of the evidence that the affidavit contained a false statement that was
necessary to a finding of probable cause, “the search warrant must be voided and the fruits
of the search excluded to the same extent as if probable cause was lacking on the face of
the affidavit.” Id. at 156. However, a defendant is only entitled to a Franks hearing “if
and only if (1) there is a substantial preliminary showing that specified portions of the
affiant’s averments are deliberately or recklessly false and (2) a finding of probable cause
would not be supported by the remaining content of the affidavit when the allegedly false
material is set to one side.” United States v. Atkin, 107 F.3d 1213, 1216—17 (6th Cir.
1997) (quoting United States v. Campbell, 878 F.2d 170, 171 (6th Cir.), cert. denied, 493
U.S. 894 (1989)).
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The only evidence presented in support of Petitioner’s argument that Agent
Pearson’s affidavit contains false information comes from unidentified and unsupported
“police” hearsay statements. Thus, Petitioner has not made any showing, much less a
substantial showing, that Agent Pearson’s affidavit is deliberately or recklessly false. Nor
has Petitioner shown that a finding of probable cause would not be supported by the
remaining content of the affidavit when the allegedly false material is set aside. Thus, there
was no basis for counsel to have requested a Franks hearing and counsel was not ineffective
in failing to request such a hearing.
Finally, as Petitioner agreed in his plea agreement, the computer seized and searched
pursuant to this warrant revealed that Petitioner had knowingly accessed child pornography
and that he knew the material contained child pornography [Case no. 3:16-cv-23, Doc. 15
at p. 3]. By virtue of his plea agreement, Petitioner has explicitly admitted the conduct of
which he was convicted. Thus, his argument that he is being punished for something of
which he has “no knowledge” rings false and is contrary to his sworn statements in court.
Blackledge, 431 U.S. at 74. In short, Petitioner has presented no evidence, beyond his
conclusory statements, that the evidence obtained on his computer should have been
suppressed or that the outcome of his case would have been different. Mr. Moffatt was not
ineffective for failing to raise a meritless argument.
IV.
Conclusion
For the reasons set forth above, Petitioner is not entitled to relief under § 2255 and
his § 2255 motion [Doc. 1] will be DENIED and this civil action will be DISMISSED.
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The Court will CERTIFY that any appeal from this action would not be taken in good
faith and would be totally frivolous. Because Petitioner has failed to make a substantial
showing of the denial of a constitutional right, a certificate of appealability SHALL NOT
ISSUE. 28 U.S.C. § 2253(c); Rule 22(b)(1) of the Federal Rules of Appellate Procedure.
An appropriate order will enter.
s/ Thomas W. Phillips
SENIOR UNITED STATES DISTRICT JUDGE
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