Rideout v. Clarke

Filing 26

MEMORANDUM OPINION. READ OPINION for complete detail. Signed by District Judge M. Hannah Lauck on 02/28/2017. Copy of Memorandum Opinion mailed to Petitioner.(ccol, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

If-*

L

\h

Richmond Division

FEB 2 8 2017

MARVIN RIDEOUT,

CLEHK, U.S. UiSTfliCT COURT

Petitioner,

RICHMOND.

V.

Civil Action No. 3:16CV190

HAROLD CLARKE,

Respondent.
MEMORANDUM OPINION

Marvin Rideout, a Virginia inmate proceedingpro se, filed this petition for habeas corpus
under 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1), challenging his conviction in the Circuit
Court of New Kent County of twenty counts of possession of child pornography. On January 17,

2017, the Magistrate Judge recommendedthat Respondent's Motion to Dismiss be granted and
the action be dismissed. (ECF No. 18.) The Court advised Rideout that he could file objections
within fourteen (14) days after the entry ofthe Report and Recommendation. On February 6,
2017, beyond the fourteen-day-period within which to file objections, Rideout requested an
extension of time to file objections. (ECF No. 19.) The Court granted him an extension until
February 17,2017. On February 7,2017, the Court received a Motion for Leave (ECF No. 21), a
Motion to Amend (ECF No. 22), and an amended petition for a writ of habeas corpus under 28
U.S.C. § 2254 Petition (Amended § 2254 Petition, ECF No. 22-1). While the Motion for Leave
and Motion to Amend will be GRANTED, the Court finds that the Amended § 2254 Petition

suffers fi-om the same deficiencies identified by the Magistrate Judge in the Report and
Recommendation. Accordingly, for the reasons that follow, the Report and Recommendation
will be ACCEPTED and ADOPTED, and the action will be DISMISSED.

1.

THE REPORT AND RECOMMENDATION

In his Report and Recommendation, the Magistrate Judge made the following findings
and recommendations:

Rideout argues entitlement to relief on the following grounds;

Claim One:

"Petitioner was denied effective assistance of counseI['] during the
suppression hearing and on direct appeal, when counsel failed to
properly raise a procedural due process challenge to obtainment of

evidence." (§ 2254 Pet. 6.)^
Claim Two:

"The Supreme Court of Virginia denied Petitioner his statutory
right to appeal." {Id. at 9.)

Claim Three; "Petitioner was denied effective assistance of counsel when

counsel failed to challenge the chain of custody of the obtainment
of the computer." {Id. at 10.)
Respondent has moved to dismiss the action.

(ECF No. 5).

Rideout has

responded.^ For the reasons that follow, it is RECOMMENDED that the §2254
Petition be DISMISSED because Claim Two provides no basis for federal habeas ,
relief and because Claims One and Three fail to demonstrate any ineffective
assistance of counsel.

' "In all criminal prosecutions, the accused shall enjoy the right... to have
the Assistance of Counsel for his defence." U.S. Const, amend. VI,

^ The Court employs the pagination assigned by the CM/ECF docketing
system to citations to Hideout's submissions.
The Court corrects the
capitalization in the quotations from Hideout's submissions.
^ Rideout has filed a Motion for Leave to Amend his "Traverse."

("Motion to Amend," ECF No. 14-1.) Rideout failed to submit the proposed
amended Traverse and, instead, attempts to tack on rambling and lengthy
argument and edit his Traverse piecemeal. To the extent Rideout attempts to
expand his claims in his Motion to Amend, it is RECOMMENDED that such
request be DENIED. "[I]t is axiomatic that [a petition] may not be amended by
the briefs in opposition to a motion to dismiss. To hold otherwise would mean
that a party could unilaterally amend a [petition] at will, even without filing an
amendment, and simply by raising a point in a brief." Morgan Distrib. Co. v.
Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989) (internal citations omitted).
Therefore, the Court will not consider any attempt by Rideout to raise a new
claim lurking therein. To the extent he wishes to raise a new claim, he must file
the appropriate Motion to Amend his § 2254 Petition, an accompanying brief in
support, and an amended § 2254 Petition.

A.

Factual and Procedural History

Pursuant to a conditional guilty plea, Rideout pled guilty to twenty counts

of possession of child pornography. (ECF No. 7-1, at 1.) In exchange for his
guilty pleas, the Commonwealth agreed to nolle prosequi an additional twenty
counts of possession of child pornography, one count of distribution of child
pornography, and two counts of distribution of child pornography second or
subsequent violation. (Id) The Circuit Court sentenced Rideout to 100 years in
prison with 93 years suspended. (Id at 4-5.)

Rideoutappealed his convictions. The Court of Appeals of Virginia aptly
explained the evidence of Rideout's guilt as follows:
In this case. Sergeant Stephen Anders of the Bedford County
Sheriffs Office (assigned to the Southern Virginia Internet Crimes
Against Children Task Force) conducted an authorized, remote
undercover investigation into the online sexual exploitation of
children on the internet. On August 29, 2011, a certain internet
protocol (IP) address of 174.66.3.142 caught his attention.
Sergeant Anders suspected that this IP address was involved in the
collection and sharing of childpomography. On September 1,

2011, through a program called "Shareaza LE,"['*] Sergeant Anders
was able to connect to, and begin downloading, a known file of
child pornography from IP address of 174.66.3.142.
On
September 2, 2011, and on September 4, 2011, Sergeant Anders
again was able to connect to the IP address of 174.66.3.142 and
begin to download child pornography files.
Sergeant Anders also obtained and submitted an
administrative subpoena to Cox Communications, the owner of the
IP address at issue. In response to that administrative subpoena.
Cox Communications informed Sergeant Anders that the IP
address had been issued to Marvin Rideout ofNew Kent, Virginia.
On December 15, 2011, after verifying that "Marvin
Rideout" was, in fact, the suspect detected by Special Agent
Anders, Detective J. McLaughlin, III, of the New Kent County
Sheriffs Office, obtained a search warrant for appellant's

residence.[^] Detective McLaughlin executed the search warrant at
^ Shareaza is a peer-to-peer sharing program that allows
users to trade electronic files, including music, photographic, and
video files.

Shareaza LE is the law enforcement version of

Shareaza which, according to Sergeant Anders, differs from the
regular Shareaza in that it does not permit law enforcement to
share files with other users.

^ Sergeant Anders prepared an affidavit in support of the
application for a search warrant in which he provided the issuing
magistrate with an extensive description of peer-to-peer (P2P)
software and how computer files are shared and accessed using
3

appellant's residence on the following morning. When Detective
McLaughlin explained to appellant why he was there, appellant put
his head down and said, "I have been waiting for y'all to come."
Sergeant Anders then analyzed various electronic items seized
from appellant's home, finding many images and movies depicting
child pornography.
Appellant filed a pre-trial motion to suppress the three files
of child pornography giving rise to the search warrant (ie., the files
that Sergeant Anders was able to access on September 1, 2, and 4
of 2011), as well as all of the files found as a result of execution of
the search warrant. At the suppression hearing, appellant testified
that he had downloaded a software program called "Shareaza"
somewhere between two and three years prior to the suppression
hearing. Shareaza is, according to appellant's expert Eric Myer,
designed to facilitate the sharing of files - "it wants to share." As
Sergeant Anders also explained, with respect to peer-to-peer
sharing programs like Shareaza, "the whole purpose is for
everybody to share." Appellant had previously use a peer-to-peer
sharing program called Limewire for several years prior to
downloading Shareaza, so he had several years of experience with
peer-to-peer software. Appellant explained that, when he initially
downloaded the Shareaza software, he had applied settings that he
thought would prevent others from being able to access files on his
computer. According to the theory advanced by appellant at the
suppression hearing, despite selecting settings on Shareaza to
prevent sharing, however, when appellant changed the location of
the downloads from the default destination, he inadvertently
activated the sharing of that folder without receiving any

notification that he was actually sharing files. [®] Thus, appellant
claimed at the suppression hearing that he had been using the
that software. Sergeant Anders explained, "When the P2P
software is installed on a computer, the user is directed to specify a
'shared' folder. All files placed in that user's 'shared' folder are
available to anyone on the world-wide network for download."
Sergeant Anders also indicated that the law enforcement version of
Shareaza "uses only publicly available P2P options which follow
the programming language (protocols) set forth in the public P2P
protocol standards." Accordingly, Sergeant Anders stated in the
affidavit, "No functionality outside of the publicly available
protocols is added, thus eliminating any potential private intrusion
on the suspect IP's computer or files."

®
Sergeant Anders testified that it was also possible to add
folders into the library through a "sharing manager" window. That
window indicates clearly that any folders added to it will be
shared.
4

Shareaza software under the mistaken impression that he had set
up Shareaza in a way that would prevent other users from gaining
access to any files on his computer.
. .. Appellant argues that he nonetheless had a reasonable
expectation of privacy relating to the contents of his personal
computer, including the files depicting child pomography, because
he contended that he had applied settings to Shareaza that he
thought would prevent others from accessing those files on his
computer. In overruling appellant's motion to suppress, the trial
court stated as follows:

The Court makes the following findings: . . . The
Court finds that the defendant had no reasonable

expectation of privacy when he installed a software
program on his computer which has the primary
purpose to share information around other computer
users. Number two, that the police did not act in an
improper manner to obtain information from the
defendant's computer. And therefore the motion to
suppress is denied.
(ECF No. 7-2, at 2-4.) The Court of Appeals of Virginia determined that the
"trial court did not err when it denied [Hideout's] motion to [suppress]." {Id. at
1.) The Court of Appeals of Virginia explained:
"Since Katz v. United States, 389 U.S. 347 (1967), the touchstone
of [Fourth] Amendment analysis has been the question whether a
person has a 'constitutionally protected reasonable expectation of
privacy.'" Oliver v. United States, 466 U.S. 170, 177 (1984)
(quoting Katz, 389 U.S. at 360 (Harlan, J., concurring)). Thus,
in order to claim the protection of the Fourth
Amendment, a defendant must demonstrate that he

personally has an expectation ofprivacy in the place
searched, and that his expectation is reasonable; i.e.,
one that has a

"source outside of the Fourth

Amendment, either by reference to concepts of real
or personal property law or to understandings that
are recognized and permitted by society."
Minnesota v. Carter, 525 U.S. 83, 88 (1998) (quoting Rakas v.
Illinois, 439 U.S. 128, 143-44 n.l2 (1978)); see also Smith v.
Maryland, 442 U.S. 735, 740^1 (1979).... Appellant contends
that, given his claim that he disabled the sharing features of
Shareaza, he then retained a reasonable expectation of privacy in
the contents of his computer and in the files located on his
computer that could otherwise be shared via Shareaza.

Even though appellant testified that he was under the
impression that he had disabled the sharing feature on Shareaza,
the record establishes that appellant actually said to Detective
McLaughlin, "I have been waiting for y'all to come." Viewing the

evidence in the light most favorable to the Commonwealth, as we
must since it prevailed below, this statement in itself strongly
suggests that appellant knew or at least suspected that files from

his computer were able to be shared. Indeed, a rational trier of fact
assessing the testimony at the suppression hearing could inferfrom
this statement that appellant was aware that he was not the only
individual with access to those files due to his installation of the

Shareaza program. Certainly, the trial court was not obligated to
believe appellant's self-serving testimony that he believed that he
had safeguarded his files containing child pornography from being
shared on Shareaza - which, of course, is peer-to-peer software

actually designedfor the sharing of files over the internet. See
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d
233,235 (1998).
Here, the trial court expressly found that appellant lacked a

reasonable expectation of privacy "when he installed a software
program on his computer which has the primary purpose to share
information among other computer users." We, like the trial court,
find several federal appellate court decisions to be applicable and
instructive on this point. '"Although as a general matter an
individual has an objectively reasonable expectation of privacy in
his personal computer, we fail to see how this expectation can
survive [appellant's] decision to install and use file-sharing
software, thereby opening his computer to anyone else with the
same freely available program.'" United States v. Stults, 575 F.3d
834, 843 (8th Cir. 2009) (quoting United States v. Ganoe, 538 F.3d
1117, 1127 (9th Cir. 2008)). Thus, by simply installing filesharing software onto his computer, appellant has "'failed to
demonstrate an expectation of privacy that society is prepared to
accept as reasonable.'" Id. Appellant's installation of Shareaza
presents a situation that is analogous to a person who hands over
the keys to his house to a number of friends. That person should
not be surprised when some of those friends simply come inside
his house without knocking on the door. Id.
Appellant contends, however, that his claimed attempt to

apply settings to Shareaza to prevent others from accessing his
files depicting child pornography creates an objectively reasonable
expectation of privacy in those computer files. However, the
decision in United States v. Borowy, 595 F.3d 1045, 1047 (9th Cir.

2010), is highly persuasive on the facts here. In Borowy, the
defendant claimed that he had attempted to engage the feature in
his version of peer-to-peer file-sharing software that would prevent
others from downloading and viewing his files. However, that
feature was not actually engaged, and an FBI agent was able to
access incriminating files from the defendant's computer. Id.
Concluding that the defendant's "subjective intention not to share
his files did not create an objectively reasonable expectation of

privacy in the face of such widespread public access," id. at 1048,
the appellate court affirmed the lower court's decision to deny the
defendant's motion to suppress. Id. at 1049.
Applying the logic in Borowy to this case, therefore, even
assuming without deciding that appellant had the subjective
intention to prevent others fi-om accessing his files, appellant still
did not have an objectively reasonable expectation of privacy in
those files, given his decision to install the Shareaza file-sharing
program on his computer. Indeed, appellant installed software on
his computer that is specifically designed to share files fi-om one's
own computer with other users of that software. By installing the
Shareaza peer-to-peer file sharing software on his computer,
appellant assumed the risk that other users of Shareaza - including
the police - could readily access those incriminating files that
could be shared through Shareaza.
(ECF No. 7-2, at 5-9.) The Court of Appeals of Virginia affirmed Rideout's
convictions. (Id. at 11.) The Supreme Court of Virginia refiised Rideout's
subsequent petition for appeal. (ECF No. 7-3, at 1.)
Rideout filed a petition for a writ of habeas corpus in the Supreme Court
of Virginia raising claims similar to those he raises in the instant § 2254 Petition.
(See id. at 2-3.) The Supreme Court of Virginia found that that Claim Two here
was barred on state procedural grounds and that Claims One and Three here
lacked merit. (Id.)
B.

Analysis

1.

The Applicable Constraints upon Federal Habeas
Corpus Review

In order to obtain federal habeas relief, at a minimum, a petitioner must
demonstrate that he is "in custody in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and
Effective Death Penalty Act ("AEDPA") of 1996 further circumscribed this
Court's authority to grant relief by way of a writ of habeas corpus. Specifically,
"[s]tate court factual determinations are presumed to be correct and may be
rebutted only by clear and convincing evidence." Gray v. Branker, 529 F.3d 220,
228 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28
U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on
any claim that was adjudicated on the merits in state court unless the adjudicated
claim:

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly 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.

28 U.S.C. § 2254(d). The Supreme Court has emphasized that the question "is
not whether a federal court believes the state court's determination was incorrect

but whether that determination was unreasonable—a. substantially higher

threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v.
Taylor, 529 U.S. 362,410 (2000)).

2.

Purported Error of Supreme Court of Virginia

In Claim Two, Rideout contends that "[t]he Supreme Court of Virginia
denied Petitioner his statutory right to appeal." (§ 2254 Pet. 9.) Rideout contends
that when the Supreme Court of Virginia "'reftised'" his petition for appeal he
was denied his "right to access to the courts through the use of state statutory
procedures to present his petition for appeal to the appellate courts." {Id.)
Rideout demands "to have his petition for appeal adjudicated on the merits ... ."
{Id.) Rideout identifies no constitutional violation, and instead challenges the
Supreme Court of Virginia's determination of state law. The Supreme Court of
Virginia's alleged "error" provides no basis for federal habeas corpus relief.
Estelle V. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a
federal habeas court to reexamine state-court determinations on state-law

questions."); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (citing cases for the
proposition that "federal habeas corpus relief does not lie for errors of state law").
In addition, Rideout's claim lacks merit. The Supreme Court stated that it
"review[ed] . . . the record in this case and consider[ed] . . . the argument
submitted in support of the granting of an appeal, [and]. . . refuse[d] the petition
for appeal." (ECF No. 7-3, at 1.) The Supreme Court of Virginia reviewed his
claims on the merits when it refused the petition for appeal. See Sheets v. Castle,

559 S.E.2d 616, 619 (Va. 2002) (citations omitted) (holding that "the refusal of a
petition for appeal constitutes a decision on the merits"). Accordingly, it is
RECOMMENDED that Claim Two be DISMISSED.
3.

Ineffective Assistance of Counsel

To demonstrate ineffective assistance of counsel, a convicted defendant

must show, fu-st, that coimsel's representation was deficient and, second, that the
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). To satisfy the deficient performance prong of Strickland, the
convicted defendant must overcome the "'strong presumption' that counsel's
strategy and tactics fall 'within the wide range of reasonable professional
assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting
Strickland, 466 U.S. at 689). Tlie prejudice component requires a convicted
defendant to "show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
8

outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of
counsel claims, it is not necessary to determine whether counsel performed
deficiently ifthe claimis readily dismissed forlack of prejudice. Id. at 697.
In the context of a guilty plea, the Supreme Court modified the second
prong of Strickland to require a showing that "there is a reasonable probability
that, but for coimsel's errors, [petitioner] would not have pleaded guilty and
would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Any assertion by Rideout that he would not have pled guilty if he had received
better assistance from counsel is not dispositive of the issue. See UnitedStates v.
Mora-Gomez, 875 F. Supp. 1208, 1214 (E.D. Va. 1995). Rather, "[t]his is an
objective inquiry and [highly] dependent on the likely outcome of a trial had the
defendant not pleaded guilty." Meyer v. Branker, 506 F.3d 358, 369 (4th Cir.
2007) (internal citationomitted) (citingHill, 474 U.S. at 59-60). The Court looks
to all the facts and circumstances surrounding a petitioner's plea, including the
likelihood of conviction and any potential sentencing benefit to pleading guilty.

See id. at 369-70. In conducting the foregoing inquiry, the representations of the
defendant, his lawyer, and the prosecutor during the plea proceedings, "as well as
any findings made by the judge accepting the plea, constitute a formidable barrier
in any subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63,
73-74 (1977). Thus, "[a]bsent clear and convincing evidence to the contrary, a
defendant is boimd by the representations he makes under oath during a plea
colloquy." Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1299 (4th Cir. 1992)
(citations omitted).

In Claim One, Rideout argues that he "was denied effective assistance of
counsel during the suppression hearing and on direct appeal, when counsel failed
to properly raise a procedural due process challenge to obtainment of evidence."
(§ 2254 Pet. 6.) Rideout "contends that Sgt. Anders['] procedural actions to

obtain the first three files, without having to fill out an ^fidavit and obtain a
search warrant" {id. at 8), failed to comply with the requirements of section 19.2-

54 of the Virginia Code,' thereby amounting to "a violation of procedural due
process." {Id. at 8-9.)

In rejecting this claim, the Supreme Court of Virginia explained:
[P]etitioner contends he was denied the effective assistance of
counsel because counsel failed to move to suppress evidence of

child pornography found on petitioner's computer on the grounds
that a warrantless search of petitioner's computer violated

' That statute states in relevant part:
No search warrant shall be issued until there is filed with the officer authorized to

issue the same an affidavit of some person reasonably describing the place, thing,
or person to be searched, the things or persons to be searched for thereunder,
alleging briefly material facts, constituting the probable cause for the issuance of
such warrant and alleging substantially the offense in relation to which such
search is to be made and that the object, thing, or person searched for constitutes
evidence of the commission of such offense.

Va. Code Ann. § 19.2-54 (West 2016).
9

petitioner's rights under the Due Process Clause of the Fourteenth
Amendment. Petitioner concedes counsel unsuccessfully moved to
suppress the evidence on Fourth Amendment grounds, but argues
the evidence was subject to suppression under the Due Process
Clause because, even though the trial court determined petitioner
had no reasonable expectation of privacy in files he had made
accessible to the public through peer-to-peer software, petitioner
still had a protected liberty interest in remaining fi-ee firom a
warrantless search. Petitioner appears to assert that because
officers had reason to believe his computer contained child
pornography Code § 19.2-54 required them to obtain a warrant.
Tlie Court holds that [this] claim . . . satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984).
Nothing in Code § 19.2-54 speaks to when police officers are
required to obtain a search warrant. Consequently, counsel could
reasonably have determined it would be more beneficial to
petitioner to argue the evidence was inadmissible under the Foiirth
Amendment than to make the argument petitioner suggests. Thus,
petitioner has failed to demonstrate that counsel's performance was
deficient or that there is reasonable probability that, but for
counsel's alleged errors, he would have pleaded not guilty, would
have proceeded to trial, and the outcome of the proceedings would
have been different. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
(ECF No. 7-3, at 2-3.) The Court discerns no unreasonable application of the
law and no unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1)(2). Given that the resolution of Rideout's claim of ineffective assistance of
counsel is highly dependent on Virginia law, Rideout fails to demonstrate any
prejudice. Richardson v. Branker, 668 F.3d 128, 141 (4th Cir. 2012) ("When a
claim of ineffective assistance of counsel raised in a habeas corpus petition
involves an issue unique to state law, ... a federal court should be especially
deferential to a state post-conviction court's interpretation of its own state's
law."). Moreover, counsel reasonably eschewed advancing the due process
challenge Rideout advances here, instead prudently raising the stronger Fourth

Amendment challenge to the warrantless search.^ Because Rideout demonstrates
® the extent Rideout contends thathe had a due process right to be fi-ee
To
from the warrantless search of his computer, the Due Process Clause applies only
when government action deprives an individual of a legitimate liberty or property
interest. Bd. ofRegents ofState Colls, v. Roth, 408 U.S. 564, 569 (1972). Thus,
the first step in analyzing a procedural due process claim is to identify whether the
alleged conduct affects a protected interest. Beverati v. Smith, 120 F.3d 500, 502
(4th Cir. 1997) (citing cases). Where government action affects a protected
liberty interest, the second step is to determine "what process is due" under the
circumstances. Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Here, both the
Circuit Court and the Court of Appeals of Virginia determined that Rideout "had
10

neither deficiency nor prejudice, it is RECOMMENDED that Claim One be
DISMISSED.

In Claim Three, Rideout contends that he "was denied effective assistance

of counsel when counsel failed to challenge the chain of custody of the
obtainment of the computer." (§ 2254 Pet. 10.) In summarizing and rejecting this
claim, the Supreme Court of Virginia found:
[P]etitioner contends counsel was ineffective for failing to
challenge the chain of custody of the computer seized from his
residence. Petitioner contends the chain of custody was broken
because law enforcement activated his computer at his residence

and did not place the computer in an evidence bag when
transferring it to the police station.
The Court holds that [this] claim . , . satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. To establish the chain of custody, the
Commonwealth need only "show with reasonable certainty that
there has been no alteration or substitution" of evidence. Branham

V. Commonwealth, 283 Va. 273, 282, 720 S.E.2d 74, 79 (2012).
Petitioner fails to articulate any break in the chain of custody

during which the computer could have been tampered with or
altered and counsel is not ineffective for failing to make a futile
objection. Thus, petitioner has failed to demonstrate that counsel's
performance was deficient or that there is a reasonable probability
that, but for counsel's alleged errors, he would have pleaded not
guilty, would have proceeded to trial, and the outcome of the
proceedings would have been different. Hill, 474 U.S. at 59.
(ECF No. 7-3, at 3.) The Court discerns no unreasonable application of the law
and no unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(l)-(2).
Given that the resolution of Rideout's claim of ineffective assistance of counsel is

once again highly dependent on Virginia law, Rideout fails to demonstrate any
prejudice. Richardson, 668 F.3d at 141. Because Rideout fails to demonstrate
deficiency of counsel or resulting prejudice from counsel's actions, it is
RECOMMENDED that Claim Three be DISMISSED,

(Report and Recommendation 1-12 (sixth alteration added and omissions in original).)

no reasonable expectation of privacy when he installed a software program on his
computer which has the primary purpose to share information among other
computer users." (ECF No. 7-2, at 4; see also id. at 8-9.) Rideout fails to
identify what liberty interest officers deprived him of when they conducted a
warrantless search of his computer. Rideout also fails to identify any process that
officers deprived him of when they conducted a warrantless search. Thus,
Rideout fails to demonstrate any deficiency of coimsel or resulting prejudice for
counsel's failure to raise this vague and unsupported claim.
11

11.

STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION

"The magistrate [judge] makes only a recommendation to this court. The

recommendation has no presumptive weight, and the responsibility to make a final determination
remains with this court." Estrada v. Witkowski, 816 F. Supp. 408,410 (D.S.C. 1993) (citing
Mathews v. Weber, 423 U.S. 261,270-71 (1976)). This Court "shall make a de novo

determination of those portions ofthe report or specified proposed findings or recommendations
to which objection is made." 28 U.S.C. § 636(b)(1). "The filing of objections to a magistrate's

report enables the district judge to focus attention on those issues—^factual and legal—that are at
the heart ofthe parties' dispute." Thomas v. Arn, 474 U.S. 140,147 (1985). In the absence of a
specific written objection, this Court may adopt a magistrate judge's recommendation without
conducting a de novo review. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,
316 (4th Cir. 2005).
III.

RIDEOUT'S AMENDED 8 2254 PETITION

Instead of filing objections, Rideout filed an Amended § 2254 Petition. In his Amended
§ 2254 Petition, Rideout adds no new claims. Instead, Rideout appears to drop Claim Two fi-om

his § 2254 Petition, and claims to "provide more factual clarification and amplification of his
original federal petition" because he has now "discovered significant prejudice by his trial

counsel" for Claims One and Three. (Mot. Amend. 1.)' Rideout contends that his "amended
petition affirms that the conduct of Sgt. Anders was not properly investigated by Mr. DuVal.
This was deficient performance. This performance prejudice[d] Rideout." {Id.) For the sake of
clarity, the Court maintains the numbering from the original § 2254 Petition and refers to Ground

Two from the Amended § 2254 Petition (Am. § 2254 Pet. 12), as Claim Three. Despite any

^Inaddition tothe corrections tocapitalization, the Court corrects the spelling and
spacing in quotations from Hideout's submissions. The Court employs the pagination assigned
by the CM/ECF docketing system for citations to Rideout's submissions.
12

attempt byRideout to "provide more factual clarification," little discussion isneeded here
because his claims lack merit for the same reasons identified by the Magistrate Judge.

In amended Claim One, Rideout argues thathe'Vas denied effective assistance of

counsel during the suppression hearing, when counsel failed to properly raise a procedural due

process challenge toobtainment ofevidence, and stipulate[ed] the computer was the front door."
(Am. § 2254 Pet. 6.) Rideout states that his "claim isthat... trial counsel did not conduct a
reasonable pre-trial investigation into the actions of the police inobtaining a warrant." (Id.)
Rideout again argues thatcounsel failed to investigate "what information was contained in
Rideout's Router (D-Link wireless router), which contained its own security protocol and

firewall." {Id.) Rideout contends thathe"had a right to a private enclave where hecould live a
private life" {id.), and "the firewall of [hi]s router afforded seclusion and privacy." {Id. at 7.)
Rideout's newsupporting argument does not substantially change his claim. He posits arcane
andtechnical ways his attorney should have tried to suppress evidence thatdo not affect
consideration of his claim. Accordingly, the Magistrate Judge's conclusion thatRideout fails to
demonstrate that counsel rendered ineffective assistance remains in full force.

Asthe Supreme Court of Virginia andthe Magistrate Judge explained, Rideout's counsel
raiseda FourthAmendment challenge to the warrantless searchof Rideout's computer. The

Circuit Court and Court of Appeals of Virginia determined thatRideout "hadno reasonable
expectation of privacy when he installed a software program onhis computer which hasthe
primary purpose to share information among computer users." (ECF No. 7-2, at 4; see also id.
at 8-9.) WhileRideoutargues that "[c]ounsel could have arguedthat Rideouthad an expectation

in privacy behind a secured router protected by a firewall" or that counsel "should have asked
Sgt. Anders why he only retrieved one file on three separate occasions, when all files ... were
available" {id. at 8), Rideoutfails to demonstrate any deficiency of coimsel or resulting
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prejudice. Despite counsel's efforts to suppress the files obtained by police prior to obtaining
and executing the search warrant, and in light ofthe fact that Rideout installed a file sharing
device, the Vu-ginia trial court and Court ofAppeals ofVirginia were unconvinced by Hideout's

argument that he had no intention to share the files with anyone based on certain protections he
claims he installed. (See supra 4-7.) Thus, Rideout fails to demonstrate that any further

arguments about his subjective expectation ofprivacy would have prevailed. To the extent that
Rideout faults counsel for failing to raise a due process challenge, the Magistrate Judge

appropriately concluded, "counsel reasonably eschewed advancing the due process challenge
Rideout advances here, instead prudently raising the stronger Fourth Amendment challenge to

the warrantless search." (Supra at 10 &n.8.) The Court agrees with the Magistrate Judge and
finds thatRideout fails to demonstrate any deficiency of counsel or resulting prejudice.
Accordingly, Claim One will be DISMISSED.

Inamended Claim Two, Rideout again argues thathe "was denied effective assistance of
counsel when counsel failed to challenge the chain of custody of the obtainment of the computer

and its contents." (Am. §2254 Pet. 13.) Rideout claims that the chain ofcustody was broken
because "Sgt. Anders entered Rideout's residence with his own personal computer and
connected to Rideout's computer outside ofa forensic laboratory." (Id) This is the same claim
Rideout raised in his original § 2254 Petition. Rideout offers nothing new in his ramblmg

explanation ofthis claim that would alter the Magistrate Judge's conclusion that, because "the
resolution of Rideout's claim of ineffective assistance of counsel is once again highly dependent

on Virginia law, Rideout fails to demonstrate any prejudice." (Supra at 11 (citing Richardon v.
Branker, 668 F.3d 128,141 (4th Cir. 2012).) The Court agrees with theMagistrate Judge and
fmds that Rideoutfails to demonstrate any deficiency of counsel or resulting prejudice from
counsel's actions. Accordingly, Claim Two will be DISMISSED.
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IV.

CONCLUSION

Rideout's Motion for Leave (ECF No. 14) filed prior to theentry of theReport and
Recommendationwill be DENIED. Rideout's Motion for Leave (ECF No. 21) and Motion to

Amend (ECF No. 22) will be GRANTED. Rideout's §2254 Petition (ECF No. 1) and Amended
§2254 Petition (ECF No. 22-1) will beDENIED. The Report and Recommendation (ECF
No. 18) will be ACCEPTED and ADOPTED. The Motion to Dismiss (ECF No. 5) will be
GRANTED. Rideout's claims and the action will be DISMISSED.

An appeal may not be taken from the final order ina §2254 proceeding unless ajudge
issues a certificate ofappealability ("COA"). 28 U.S.C. §2253(c)(1)(A). A COA will not issue
unless a prisoner makes "a substantial showing ofthe denial ofa constitutional right." 28 U.S.C.
§ 2253(c)(2). A petitioner satisfies this requirement only when "reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a different
manner orthat the issues presented were 'adequate to deserve encouragement to proceed
further.'" Slack v. McDaniel, 529 U.S. 473,484 (2000) (quoting Barefootv. Estelle,463 U.S.

880, 893 n.4 (1983)). Rideout fails to meet this standard. A certificate of appealability will
therefore be DENIED.

Anappropriate Order will accompany thisMemorandum Opinion.

.ck'' a/

M. Haimah Lauck

United States District Judge

Date: FEB 2 8 2017
Richmond, Virginia

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