United States District Court, D. Vermont
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
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