United States v. Thomas

          REPORT AND RECOMMENDATION AND ORDER (DOCS. 148, 173)

          John M. Conroy, United States Magistrate Judge

         Derek Thomas, proceeding pro se, moves under 28 U.S.C. § 2255 to vacate, set aside, or correct the judgment imposed on him in this district in 2014. (Doc. 148.) On December 16, 2013, Thomas pleaded guilty to one count of production of child pornography, a violation of 18 U.S.C. § 2251(a), pursuant to a conditional plea agreement that permitted appeal of the district court's denial of his motions to suppress evidence seized in the execution of a search warrant. (Docs. 117, 140.) Thomas was sentenced to a term of imprisonment of 180 months, to be followed by an eight-year term of supervised release. (Docs. 133, 138.) On appeal, the Second Circuit affirmed; and the Supreme Court subsequently declined to issue a writ of certiorari. United States v. Thomas, 788 F.3d 345, 354 (2d Cir. 2015), cert. denied, 136 S.Ct. 848 (2016) (mem.).

         In his § 2255 Motion, Thomas raises “a total of forty-one issues, ” which he argues entitle him to vacatur of his conviction and immediate release from federal custody. (Doc. 148 at 14.) These allegations encompass claims of prosecutorial misconduct (Doc. 148-1 at 52), judicial misconduct (id. at 68), “abandonment” by defense counsel (id. at 41), ineffective assistance of counsel (IAC) before both the district court (id. at 26) and the Second Circuit (id. at 56), and cumulative error (id. at 71).

         In response to Thomas's Motion, the government successfully sought an order compelling affidavits from Thomas's defense attorneys, Michael Desautels and Elizabeth Mann. (Docs. 160, 162, 163.) Relying in part on these affidavits, the government argues that Thomas's claims are meritless and thus that the court should deny his Motion. (Doc. 164.)

         Subsequent to the government's responsive filing, Thomas filed a Motion seeking leave to exceed the page limit in his reply. (Doc. 173.) In the same Motion, Thomas also seeks the appointment of counsel. (Id. at 2.)

         For the reasons stated below, I find that Thomas has failed to establish that the performance of either Attorney Desautels or Attorney Mann was objectively deficient, or that Thomas suffered any prejudice as a result of the alleged deficient performance. I further conclude that Thomas's other claims are waived or procedurally barred or both. I therefore recommend that Thomas's § 2255 Motion (Doc. 148) be DENIED. Additionally, although Thomas's request to exceed the page limit in his reply (Doc. 173) is GRANTED, his request to appoint counsel (id.) is DENIED as moot.

         Factual and Procedural Background

         The following facts are derived from the records of this court, including: the October 15, 2012 Opinion and Order denying Thomas's pretrial Motion to Suppress (Doc. 41), the November 8, 2013 Opinion and Order denying Thomas's pretrial Motions to Suppress (Doc. 113), the March 2014 Presentence Investigation Report, the transcripts of the change-of-plea hearing and the sentencing hearing (Docs. 138, 140), and the Second Circuit Court of Appeals' June 2015 Opinion affirming Thomas's conviction, United States v. Thomas, 788 F.3d 345 (Doc. 144).

         I. Offense Conduct, Pretrial Motions, and Plea of Guilty

         Following the filing of the Criminal Complaint in this matter on March 2, 2012 (Doc. 1), the Office of the Federal Public Defender was appointed to represent Thomas (Doc. 4). On March 8, 2012, the grand jury returned a one-count Indictment charging Thomas with knowingly possessing child pornography on or about March 2, 2012, in violation of 18 U.S.C. § 2252(a)(4)(B). (Doc. 7.) On October 25, 2012, the grand jury returned a Superseding Indictment charging Thomas with two additional counts. (Doc. 43.) Count One charged him with knowingly producing child pornography from in or about February 2012 to on or about March 2, 2012, in violation of 18 U.S.C. § 2251(a). (Id. at 1.) Count Two charged him with knowingly producing child pornography on or about February 15, 2012, also in violation of 18 U.S.C. § 2251(a). (Id. at 2.) Count Three charged Thomas with knowingly possessing child pornography on or about March 2, 2012, in violation of 18 U.S.C. § 2252(a)(4)(B). (Id. at 3.)

         Thomas's case was one of several cases filed in this district in 2012 as part of “Operation Greenwave, ” a joint investigative effort by federal and state law enforcement to identify Vermont perpetrators of child pornography-related crimes. (Doc. 113 at 2; see Doc. 160 at 2-3.) Investigators used a suite of computer forensic tools called the Child Protection System (CPS) to automate their search of peer-to-peer (P2P) file-sharing networks for users offering to share files previously flagged by law enforcement as “child notable, ” meaning containing child pornographic content. (Doc. 99 at 49-50, 52, 64, 83-84.) The CPS produces to law enforcement officers trained in its use, reports of jurisdictionally relevant internet protocol (IP) addresses, which have offered to share child-notable files on P2P networks. (Id. at 62-63.)

         Operation Greenwave investigators learned that an individual associated with an IP address registered to a home in Colchester, Vermont had offered to share several files previously flagged as child notable. (Doc. 28.) Law enforcement submitted a search warrant application for the Colchester address, accompanied by an affidavit by Homeland Security Investigations Special Agent (SA) Seth Fiore. (Doc. 33-1.) A search warrant was issued by the Magistrate Judge (Doc. 115 at 3), and in the subsequent search of the residence, law enforcement officers conducted a “forensic preview” of Thomas's laptop, which revealed hundreds of videos and images that were presumptively classified as child pornography. (Id. at 4.) They seized the laptop and several other pieces of technology, and arrested Thomas. (Id.) The March Indictment followed. (Doc. 7.)

         Further investigation revealed that Thomas's illicit activities had not been limited to downloading and sharing child pornography through P2P networks. The government discovered that Thomas had been “actively involved in the grooming and seduction of a real minor child . . . as well as the solicitation of child pornography using this [c]hild.” (Doc. 14 at 1-2.) Posing as a teenage boy, Thomas employed various cell phone applications, such as “KIK” and “Text Me” (id. at 2), to communicate with the 12-year-old daughter of an intimate partner, coercing and threatening the young girl into sending him sexually explicit videos of herself. (Doc. 140 at 17-18.) The discovery of this evidence led to the Superseding Indictment. (Doc. 43.)

         On behalf of Thomas, Federal Public Defender Michael Desautels filed two Motions to Suppress. The first motion challenged whether the search warrant for the Colchester residence was supported by probable cause. (Doc. 28.) The second alleged the CPS software had “accessed hidden, non-public system files” in Thomas's computer “and was therefore an illegal search.” (Doc. 47 at 1.) On September 20, 2012, the court held a hearing on the first Motion; and SA Fiore and one defense witness, Tor Borgestrom, testified. (Doc. 40.) The court denied that Motion in an Opinion and Order on October 15, 2012. (Doc. 41.)

         In November 2012, Thomas filed a Motion requesting appointment of new counsel, and a hearing was held on the matter in December 2012. (Doc. 56; see Doc. 63.) Soon thereafter, then-Attorney Elizabeth Mann^[1] was appointed as counsel for Thomas under the Criminal Justice Act, 18 U.S.C. § 3006A. (See Doc. 65.)

         On March 25, 2013, Judge Mann filed two more Motions to Suppress. (Docs. 83, 84.) Because Thomas raised issues concerning the CPS forensic tool, similar to those advanced by two other Operation Greenwave defendants, and the affidavits underlying the three challenged search warrants “used a common template” (Doc. 113 at 10), the court consolidated the Motions and held three days of common evidentiary hearings on April 17 and July 30-31, 2013, with testimony by law enforcement officers and expert witnesses (id. at 1). Thomas, through counsel, filed post-hearing memoranda (Docs. 104, 110), as did the government (Doc. 107). On November 8, 2013, the court denied all three of Thomas's Motions to Suppress, holding that the affidavits underlying each search warrant were sufficient as a matter of law. (Doc. 113 at 38.) On December 10, 2013, the court issued another opinion denying suppression based on Thomas's separate “unanticipated guest” argument. (Doc. 115.)

         Thomas then entered into a written Plea Agreement with the government in which he agreed to plead guilty to Count One of the Superseding Indictment, charging him with the production of child pornography in violation of 18 U.S.C. § 2251(a). (Doc. 117.) In turn, the government agreed to move to dismiss the remaining two counts of the Superseding Indictment at the time of sentencing and consented to Thomas pleading guilty while reserving the right to appeal the district court's denial of his Motions to Suppress. (Id. at 7-8.) In the Plea Agreement, Thomas acknowledged that he understood the nature of the offense to which he would plead guilty and that he understood his constitutional rights, which he would waive by his plea of guilty. (Id. at 2, ¶ 5.) Thomas stated he was pleading guilty because he was, in fact, guilty of the offense of production of child pornography. (Id. at 1, ¶ 3.) Thomas acknowledged his understanding that he would plead guilty to an offense that required the imposition of a 15-year mandatory minimum term of imprisonment. (Id., ¶ 2.)

         On December 16, 2013, Thomas appeared at his change-of-plea hearing. The court engaged in the complete colloquy required by Rule 11 of the Federal Rules of Criminal Procedure. Thomas stated under oath that he had had a full opportunity to review the Superseding Indictment and Plea Agreement and to discuss the charges and any defenses he might have with his attorney. (Doc. 140 at 6-7.) To the question posing if he was satisfied with his attorney's representation of him, he responded: “Yes, I am.” (Id. at 7:8.) Upon further inquiry, Thomas indicated that he fully understood the Plea Agreement and that he had not been coerced into entering into it. (Id. at 7-10.) He verified his reservation of the right to seek appellate review of the court's adverse determinations in its opinions and orders denying his Motions to Suppress. (Id. at 8-9.)

         The court then reviewed the elements of the offense charged in Count One and explained the minimum and maximum penalties Thomas faced as a consequence of his guilty plea. (Id. at 15-16.) Thomas assented to the government's characterization of the relevant facts, ^[2] including its proffer that he “persuaded, induced[, ] and enticed the victim by, for instance, promising her presents and threatening to tell certain information to her friends if she did not comply to engage in sexually explicit conduct.” (Id. at 17.) The government attested that forensic examination of Thomas's telephone and the minor victim's telephone provided ample evidence of this conduct. (Id. at 18.) Thomas conceded the government could prove the elements of the offense beyond a reasonable doubt. (Id. at 16.) At the conclusion of the government's proffer, the court read Thomas the charge:

From in or about February[] 2012 to [o]n or about March 2, 2012, in the District of Vermont and elsewhere, the defendant Derek Thomas did knowingly employ, use, persuade, induce, entice[, ] and coerce a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct knowing and having reason to know that such visual depictions would be transmitted using a means and facility of interstate commerce and thereafter the visual depiction was so transmitted in violation of 18 U.S.C.[] Section 2251(a)[.]

(Id. at 22.) When asked for his plea to the accusation, Thomas responded, “Guilty.” (Id.)

         The court concluded that Thomas was fully competent and capable of entering an informed plea; that Thomas was aware of the nature of the charge and the consequences of the plea; and that the plea was knowing and voluntary, supported by an independent basis in fact. Accordingly, the court accepted the plea of guilty, and Thomas was adjudged guilty of the offense. (Id.)

         II. Sentencing

         The Presentence Investigation Report (PSR) prepared by the United States Probation Office determined that, with respect to the advisory Sentencing Guidelines, the total offense level was 33, and Thomas's criminal history category was III. The resulting imprisonment range under the advisory Sentencing Guidelines ordinarily would have been 168-210 months. However, as the offense of conviction carried a mandatory minimum 15-year sentence, the sentencing range became 180-210 months.

         On March 31, 2014, Thomas appeared in the district court for sentencing, and the court adhered to the general sentencing requirements under Fed. R. Crim. P. 32(i) in conducting the hearing. (Doc. 138.) Following argument of counsel and allocution by Thomas, the court set forth detailed reasons for the sentence under 18 U.S.C. § 3553(a) and sentenced Thomas to the mandatory minimum term of 180 months' imprisonment, to be followed by an eight-year term of supervised release. (Docs. 133, 138 at 36-53.) Thomas was advised of his right to a direct appeal (Doc. 138 at 53-54), and the government's Motion to Dismiss Counts Two and Three of the Superseding Indictment was granted (id. at 57). Judgment was entered against Thomas the same day. (Doc. 133.)

         III. Direct Appeal

         On April 8, 2014, Thomas, still represented by Judge Mann, filed a Notice of Appeal exercising the right, reserved in the Plea Agreement, to appeal the denial of two of his Motions to Suppress. (Doc. 136.) Therein, Thomas raised two claims: (1) that the search warrant affidavit did not support a finding of probable cause; and (2) that “the warrant, if valid, did not authorize the search of his computer because he was an ‘unanticipated guest' in the home where the search occurred.” Thomas, 788 F.3d at 350 n.7.

         The Second Circuit Court of Appeals rejected these claims, determining that “probable cause was sufficiently established in the affidavit at issue.” Id. at 353. The court summarily dismissed Thomas's “unanticipated guest” argument, noting that “agents confirmed before seizing Thomas's computer [that he] had been staying at the address listed on the affidavit for [ten] months, ” and finding that, if accepted, Thomas's argument would require the court to adopt “a novel interpretation of the Fourth Amendment.” Id. at 350 n.7.

         Thereafter, Judge Mann withdrew from her representation of Thomas (see Doc. 148-1 at 59), and Thomas filed an appeal to the Supreme Court, which declined to issue a writ of certiorari, Thomas, 136 S.Ct. 848.

         Analysis

         I. 28 U.S.C. § 2255 Motion

         On December 27, 2016, Thomas filed his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct the judgment imposed upon on him. (Doc. 148.) Under § 2255(a), “a prisoner in custody” may collaterally attack his sentence on the ground that it “was imposed in violation of the Constitution or laws of the United States.” The statute provides relief “only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (internal quotation marks omitted). As summarized above, Thomas claims multiple grounds for relief in his Motion, including prosecutorial misconduct, abandonment of defense counsel, ineffective assistance of counsel before both the district court and the appellate court, and cumulative error. (See Doc. 148-1.) As the petitioner, Thomas bears the burden of establishing his claim under § 2255 by a preponderance of the evidence. See Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000); Napoli v. United States, 45 F.3d 680, 683 (2d Cir. 1995).

         Section 2255 petitioners face two major procedural hurdles. First, a § 2255 motion cannot be used to relitigate claims previously raised and decided on direct appeal. See, e.g., Yick Man Mui v. United States, 614 F.3d 50, 53-54 (2d Cir. 2010); Reese v. United States, 329 Fed.Appx. 324, 326 (2d Cir. 2009); United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001). A district court should dismiss a § 2255 motion raising claims already litigated on direct appeal, unless “there has been an intervening change in the law and the new law would have exonerated [the] defendant had it been in force before the conviction was affirmed on direct appeal.” Chin v. United States, 622 F.2d 1090, 1092 (2d Cir. 1980). Conversely, under the “procedural default rule, ” a § 2255 motion cannot take the place of a direct appeal. Bousley v. United States, 523 U.S. 614, 621-22 (1998); see United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998). Claims not raised on direct appeal are subject to dismissal for procedural default. However, the procedural default rule does not apply to IAC claims not raised on appeal. Massaro v. United States, 538 U.S. 500, 509 (2003); see also Yick Man Mui, 614 F.3d at 54.

         A. Waiver and Procedural Default

         “It is well settled that a defendant's plea of guilty admits all of the elements of a formal criminal charge, and, in the absence of a court-approved reservation of issues for appeal, waives all challenges to the prosecution except those going to the court's jurisdiction.” Hayle v. United States, 815 F.2d 879, 881 (2d Cir. 1987) (citation omitted). Here, Thomas's Plea Agreement reserved only the denial of two of his Motions to Suppress for challenge on appeal. (Doc. 117 at 8, ¶ 14.) Accordingly, by his plea of guilty, Thomas has waived any pre-plea, non-jurisdictional claims, with the exception of his claims of ineffective assistance of counsel, which may be raised for the first time in his § 2255 Motion, Massaro, 538 U.S. 500 at 509.

         Further, a claim not raised on direct appeal is subject to procedural default and generally may not be considered on collateral review. United States v. Frady, 456 U.S. 152, 165 (1982); Harrington v. United States, 689 F.3d 124, 129 (2d Cir. 2012) (noting “a § 2255 motion is not a substitute for direct appeal”). Accordingly, Thomas's claims of prosecutorial misconduct, judicial misconduct, abandonment of defense, and cumulative error, were therefore waived as a consequence of his plea of guilty, and are barred by Thomas's procedural default as they were not raised on direct appeal. See Hayle, 815 F.2d at 88; see also McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 Fed.Appx. 69, 72 n.1 (2d Cir. 2011) (noting that cumulative-error claims are procedurally barred where their component claims are procedurally barred).

         Thomas also challenges the district court's use of a post-plea psychosexual evaluation at sentencing. Notwithstanding Thomas's guilty plea, this claim is not considered as having been waived because it arose after the guilty plea. Though Thomas entered a conditional guilty plea, he could have raised the issue on direct appeal as a sentencing issue. Because Thomas could have raised the issue of the district court's use of a post-plea psychosexual evaluation at sentencing in his direct appeal, but failed to do so, the claim is procedurally defaulted.

         Furthermore, relief under § 2255 is “generally available . . . only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). To obtain relief under § 2255 for a constitutional error, Thomas must prove the error had substantial and injurious effect or influence on the criminal proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). To obtain relief under § 2255 for a non-constitutional error, Thomas must demonstrate “a fundamental defect [in the criminal proceedings] which inherently result[ed] in a complete miscarriage of justice.” Reed v. Farley, 512 U.S. 339, 348 (1994) (internal quotation marks omitted); Hill, 368 U.S. at 428. Here, Thomas received the mandatory minimum sentence under the offense of conviction. Clearly, Thomas cannot show error of constitutional or non-constitutional magnitude in the court's review of the evaluation.

         A § 2255 movant may overcome procedural default of his claims by showing “(1) good cause to excuse the default and ensuing prejudice, or (2) actual innocence.” Harrington, 689 F.3d at 129. Aside from his IAC claims, Thomas has made no attempt to establish cause or ...