Hargrove v. USA

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATION adopting 4 Report and Recommendation; and denying and dismissing with prejudice 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by John E. Hargrove. This matter is ORDERED STRICKEN from the active docket of this Court. Clerk to enter judgment in favor of United States of America. Signed by Chief Judge John Preston Bailey on 11/22/2013. Copy mailed to pro se petitioner by CMRR.(cwm) (Additional attachment(s) added on 11/22/2013: # 1 Certified Mail Return Receipt) (cwm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
JOHN E. HARGROVE,
Petitioner,
v.
Civil Action No. 3:12-CV-124
Criminal Action No. 3:07-cr-58
(BAILEY)
UNITED STATES OF AMERICA,
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation of United States Magistrate Judge David J. Joel. Pursuant
to this Court’s Local Rules, this action was referred to Magistrate Judge Joel for submission
of a proposed report and a recommendation (“R&R”). Magistrate Judge Joel filed his R&R
on September 18, 2013 [Civ. Doc. 4, Crim. Doc. 449]. In that filing, the magistrate judge
recommended that this Court deny and dismiss this § 2255 petition. As set forth below, this
Court agrees with the magistrate judge and adopts his R&R over petitioner’s objections.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo
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review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984). Here, objections to Magistrate Judge Kaull’s R&R were due within
fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the
Federal Rules of Civil Procedure. Upon petitioner’s motion [Doc. 451], this Court granted
petitioner an extension of time to file his objections, permitting same to be filed on or before
November 6, 2013. [Doc. 452]. Petitioner’s objections [Doc. 456] were untimely filed on
November 12, 2013, as even with the three additional days added by Federal Rule of Civil
Procedure 6(d) and the extension of time provided by Rule 6(a)(1)(C) for periods ending
in a Saturday or Sunday, petitioner’s deadline functionally expired on November 11, 2013.
Although petitioner’s objections nowhere indicate the date that the objections
entered the prison mail system, this Court anticipates that, as with petitioner’s original,
untimely § 2255 motion and his amended, untimely § 2255 motion, the lateness of the
present filing likely resulted from delays in the prison mail system. Accordingly, this Court
will conduct a de novo review of the portions of the magistrate judge’s R&R to which the
petitioner objects. See, e.g., Austin v. Cuyler, 499 F. Supp. 1116, 1116 (E.D. Pa. 1980).
The remainder of the R&R will be reviewed for clear error.
I.

Petitioner’s Claims of Ineffective Assistance Lack Merit
In order to determine whether a convicted defendant’s claims of ineffective

assistance warrant the reversal of his conviction, the defendant must satisfy a two-pronged
test, articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984):
first, the defendant must show that counsel’s performance was deficient, and second, the
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defendant must show that counsel’s deficiency prejudiced the defense. Id. at 687. These
two prongs are known as the “performance” and “prejudice” prongs. Fields v. Att’y Gen.
of Md., 956 F.2d 1290, 1297 (4th Cir. 1992).
In order to satisfy the “performance” prong, the defendant must show that “counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the
Sixth Amendment.” Strickland, 466 U.S. at 687. Further, the defendant must overcome
the strong presumption that counsel’s performance “f[ell] within the wide range of
professionally reasonable assistance.” Carter v. Lee, 283 F.3d 240, 249 (4th Cir. 2002).
In order to satisfy the “prejudice” prong, the defendant must show that counsel’s errors
affected the ultimate outcome of trial; a mistake, even if professionally unreasonable, “does
not warrant setting aside the judgment of a criminal proceeding if the error had no effect
on the judgment.” Strickland, 466 U.S. at 691. If a defendant cannot show prejudice,
performance need not be considered by a reviewing court. Fields, 956 F.2d at 1297.
A.

Failure to Pursue Defense Strategies Suggested by Petitioner

Petitioner first objects to the R&R’s determination that his ineffective assistance
claims are meritless by arguing that counsel failed to pursue a defense strategy suggested
by petitioner. Specifically, petitioner asserts that counsel should have argued that petitioner
lacked criminal intent because “during his initial conversations with the minors [petitioner]
told them that there would be ‘NO’ sex until they were old enough.” [Doc. 456 at 6–7]. This
argument is unavailing not only because decisions regarding trial strategy are tactical
decisions, for which great deference is afforded to counsel’s superior skill, see Sexton v.
French, 163 F.3d 874, 885 (4th Cir. 1998), but also because even if counsel’s decision not
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to pursue petitioner’s suggested strategy could, somehow, have been error, consideration
of the totality of evidence presented regarding petitioner’s criminal intent would render any
such error nonprejudicial. See Strickland, 466 U.S. at 693 (“[T]he question is whether
there is a reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.”).
B.

Failure to Call Witnesses

Petitioner’s second ineffective-assistance objection concerns counsel’s failure to
secure funds to ensure the presence of certain witnesses at trial, including petitioner’s
girlfriend, Jessica Cummings, Mark Lovejoy, and Michelle Lanier. Petitioner, however, was
representing himself during the period of time when arrangements should have been made
for the transportation of witnesses; his attorney, Robert Barrat, was acting merely as
standby counsel. There is no constitutional right to effective assistance of standby counsel.
E.g., United States v. Windsor, 981 F.2d 943, 947 (7th Cir. 1992). Mr. Barrat was not
designated as petitioner’s trial counsel until the second day of the jury trial. [Doc. 262 at
3:17–4:12]. It was thus petitioner’s duty, not Mr. Barrat’s, to arrange for the appearance
of witnesses, and petitioner failed to do so.
C.

Failure to Investigate Certain Potential Defenses

Petitioner next argues ineffective assistance on grounds that counsel failed to
investigate certain potential defenses.

Counsel “has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations
unnecessary,” and courts must afford “a heavy measure of deference” to counsel’s
judgment with respect to investigation. Strickland, 466 U.S. at 690–91. A decision not to
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investigate is assessed for reasonableness under the totality of the circumstances. Id.
In the opinion of this Court, counsel’s alleged decisions not to investigate petitioner’s
theories were reasonable under the circumstances. Specifically, petitioner argues that
(1) counsel did not contact the Romney School for the Deaf and Blind to ascertain whether
petitioner contacted school authorities to report that “Melissa” was an “at-risk” child, and
(2) counsel failed to investigate whether the government altered the date and timestamps
on certain chat logs between petitioner and “Melissa.” Neither argument has merit.
First, as noted by the United States in is response, petitioner raises the argument
that he allegedly contacted the Romney School for the first time in his § 2255 motion. It is,
therefore, not clear when petitioner expected counsel to investigate that theory. Even if
petitioner had contacted the Romney School, moreover, it is the opinion of this Court that
such evidence would not have affected the outcome of this case, as the overwhelming
weight of the evidence clearly controverts any alleged isolated act suggesting that petitioner
had “Melissa’s” best interests at heart.
Second, despite the total lack of factual support in the record for petitioner’s claim
of government tampering with the chat logs, counsel in fact elicited testimony regarding the
possibility for tampering with the chat logs, [Doc. 263 at 242:17–25, 243:1–4], and again
directed the jury’s attention to that issue in his closing argument. [Doc. 264 at 32:19–22].
Counsel’s conduct with respect to investigating these matters, thus plainly falls within the
range of professionally reasonable conduct.
D.

Failure to Tell Petitioner About Renewed Plea Bargain Offer

Petitioner claims that although “counsel was told by the government on the morning
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of [his] trial that it was re-offering [him] the same binding plea bargain” that petitioner
previously accepted and then withdrew, “counsel never said a word to [him] about this until
three days later when I was in the holding cell awaiting the verdict of the jury.” [Doc. 456
at 15]. There is no evidence in the record supporting this allegation, and petitioner has
raised no set of facts which would lend credibility to same.
II.

Petitioner’s Claims of Prosecutorial Misconduct Lack Merit
While petitioner’s arguments are difficult to discern, he appears to claim that the

government coached “S.M.,” a female minor whom petitioner was grooming to become part
of petitioner’s “[sex-]slave family,” to lie while giving testimony, both about whether she
created sexually explicit photographs of herself at petitioner’s direction, and about whether
she sent petitioner sexually explicit pictures of herself at all. [Doc. 456 at 13]. Petitioner
further argues that the government wrongfully withheld certain chat logs, allegedly
discovered on a computer belonging to “S.M.” Neither argument has merit.
As a threshold matter, petitioner procedurally defaulted on these issues by failing
to raise them on appeal. In order to obtain collateral relief on procedurally defaulted issues,
the movant must ordinarily show cause excusing the default and actual prejudice. Spencer
v. United States, 894 F. Supp. 2d 721, 724 (E.D. Va. 2012) (citing United States v.
Frady, 456 U.S. 152 (1982)). Here, petitioner has failed to make either showing, as both
of his misconduct allegations have no basis in fact.
Contrary to petitioner’s assertion, there was, in fact, no testimony at all from S.M.
regarding whether she created the photographs for petitioner. This Court refused to allow
counsel for the petitioner to pursue that line of questioning. During S.M.’s direct
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examination at trial, counsel for the petitioner approached the bench and requested leave
to ask S.M. whether she took the explicit photos of herself at petitioner’s behest. During
the bench conference, the following exchange took place between counsel for the United
States and this Court:
MR. PERRI: Your Honor, [S.M.] testified that [the explicit photos] were either
taken when she was still 14 or when she had turned 15, depending on
whether it was before or after November 6, 2006. She testified that she took
them herself. The United States did not open the door as to who directed her
to take those pictures. We deliberately stayed away from that given the
Court’s prior order.
THE COURT: I’m not going to allow that question.
[Doc. 263 at 187:21–188:24]. S.M. gave no testimony concerning whether petitioner asked
her to create the explicit photos, and petitioner’s argument must therefore be rejected.
Petitioner’s allegations regarding withholding of evidence also lack a factual basis.
No chat logs were recovered from “S.M.’s” computer, and petitioner conceded as much at
the pre-trial conference. See [Doc. 259 at 17:3–10] (“[E]xamination of Ms. S.M.’s hard
drive didn’t reveal any chat logs whatsoever.”).

Petitioner’s claims of prosecutorial

misconduct lack merit.
III.

Petitioner’s Unlawful Search Claim Lacks Merit
Finally, petitioner renews his oft-asserted argument that his rented Hewlett-Packard

Pavilion computer was unlawfully seized and searched by the FBI. He claims that during
his incarceration at the Eastern Regional Jail, FBI Agent Floznec showed petitioner “a set
of pictures on a disk,” one of which was a photograph “of a girl in a black bikini.” According
to petitioner, he “did not meet this girl until after the feds seized all [his] computers”; he

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claims that because he never saved that image to a disk, the image “therefore could only
have come off of the Pavilion.” [Doc. 456 at 10].
First, there was no unlawful seizure, as petitioner admitted that he voluntarily gave
the Pavilion computer to FBI agents. [Doc. 125 at 82:1–4]. Second, petitioner’s claims
related to the specific image described above are raised for the first time in his instant
objections, and directly controvert his previous testimony, in which petitioner admitted that
he did not know whether any evidence was actually recovered from the Pavilion computer.
Id. at 83:23–84:7. This Court thus finds no merit in petitioner’s allegations that an illegal
search took place.
CONCLUSION
Upon careful review, it is the opinion of this Court that the magistrate judge’s Report
and Recommendation [Civ. Doc. 4, Crim. Doc. 449] should be, and is, hereby ORDERED
ADOPTED for the reasons more fully stated in the magistrate judge’s report. As such, the
petitioner’s Objections [Crim. Doc. 456] are OVERRULED.
Accordingly, this Court hereby DENIES and DISMISSES with prejudice the
petitioner’s amended § 2255 petition [Civ. Doc. 1, Crim. Docs. 416, 405] and this matter
is ORDERED STRICKEN from the active docket of this Court. As such, this Court
DIRECTS the Clerk to enter judgment in favor of the respondent.
Consequently, petitioner’s Motion for Injunctive Relief [Crim. Doc. 349], Motion for
Information [Crim. Doc. 395], Motion for Documents [Crim. Doc. 401], Motion to File
Enclosed Exhibit [Crim. Doc. 443], Motion for Production of Document [Crim. Doc. 445],

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Motion for Subpoena for Face Book, Inc. [Crim. Doc. 446], and Motion for Subpoena
Against Yahoo, Inc. [Crim. Doc. 447] are hereby DENIED AS MOOT.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record and to
mail a copy to the pro se petitioner.
DATED: November 22, 2013.

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