JOHN E. STEELE, District Judge.
This matter comes before the Court on Petitioner Andrew Belitsky's (petitioner or Belitsky) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Cr. Doc. #290; Cv. Doc. #1)
For the reasons set forth below, petitioner's § 2255 motion is denied.
On March 18, 2009, a federal grand jury in Fort Myers, Florida, returned a two-count Indictment against petitioner. (Cr. Doc. #3). Count One charged Belitsky with knowingly possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). (
Belitsky pled not guilty and proceeded to a jury trial in February 2010. (Cr. Doc. #88). Because the jury could not reach a unanimous verdict, the Court granted Belitsky's motion for a mistrial. (Cr. Doc. #93). A second jury trial began on August 17, 2010 (Cr. Doc. #141), and on August 20, 2010, Belitsky was convicted of both counts. (Cr. Doc. #148).
On September 1, 2010, Belitsky, through counsel, filed a Motion for Judgment of Acquittal and Motion for New Trial, arguing that the evidence at trial was insufficient to support his convictions. (Cr. Doc. #155). On September 3, 2010, Belitsky, through counsel, filed a Supplemental Motion asserting additional facts. (Cr. Doc. #156). On September 10, 2010, Belitsky filed a
Attorney Walsh notified the Court that his relationship with Belitsky was "beyond repair." (Cr. Doc. #163, p. 1). After conducting a hearing on November 16, 2010, the Court granted Walsh's Motion to Withdraw. (Cr. Doc. #167). The Court then appointed Attorney John Mills to represent Belitsky. (Cr. Doc. #169)
On February 9, 2011, the Court denied Belitsky's Motion for Judgment of Acquittal and Motion for New Trial, and scheduled an evidentiary hearing on Belitsky's claims of ineffective assistance of trial counsel asserted in his
On January 17, 2012, Belitsky was sentenced to 84 months in prison. (Cr. Docs. #236, #241). Belitsky filed a direct appeal (Cr. Doc. #242), and on May 14, 2014, the Eleventh Circuit affirmed his convictions and the Court's denial of Belitsky's motions for a new trial. (Cr. Doc. #284);
The government concedes that Belitsky's May 8, 2015, motion was timely filed (Cv. Doc. #7, pp. 17-18), and the Court agrees.
Petitioner raises claims of ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and an erroneous jury instruction by the trial court.
Belitsky again requests appointment of counsel in this collateral proceeding.
A district court shall hold an evidentiary hearing on a habeas corpus petition "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. . . ." 28 U.S.C. § 2255(b). "[I]f the petitioner alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim."
To establish entitlement to an evidentiary hearing, petitioner must "allege facts that would prove both that his counsel performed deficiently and that he was prejudiced by his counsel's deficient performance."
The legal standard for ineffective assistance of counsel claims in a habeas proceeding is well established. To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must demonstrate both that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness, and (2) prejudice resulted because there is a reasonable probability that, but for the deficient performance, the result of the proceeding would have been different.
The proper measure of attorney performance is "simply reasonableness under prevailing professional norms" considering all the circumstances.
The same deficient performance and prejudice standards apply to appellate counsel.
The government asserts that many of petitioner's claims were addressed on direct appeal, and thus are already adjudicated. (Cv. Doc. #7, pp. 18-23). The Court agrees.
It is well settled that a "district court is not required to reconsider claims of error that were raised and disposed of on direct appeal."
On appeal, the Eleventh Circuit held that trial counsel was not deficient in failing to move to: (1) exclude evidence because the warrant actually described Belitsky's neighbor's house, (2) suppress evidence on the basis of FBI tampering, (3) compel production of the original computer hard drives, and (4) assert prosecutorial misconduct on the basis of denial of access to the original hard drives.
Because the Eleventh Circuit has already rejected many of petitioner's arguments in Grounds One, Three, and Four, he cannot re-litigate those claims.
The government also argues that Belitsky's other claims are procedurally defaulted because he failed to assert them on direct appeal. (Cv. Doc. #7, pp. 21-22). The Court disagrees and finds that petitioner's ineffective assistance of counsel claims are not defaulted.
Belitsky alleges that trial counsel provided ineffective assistance when counsel: (1) failed to move to exclude evidence based on an invalid search warrant; (2) failed to move to dismiss the Indictment on the basis of government misconduct; and (3) entered stipulations at trial without Belitsky's consent. (Cr. Doc. #290, pp. 4-5; Cv. Doc. #1, pp. 4-5).
Belitsky asserts that trial counsel's performance was deficient because he failed to move to exclude evidence seized during the execution of an invalid warrant. (Cv. Doc. #8, pp. 2-8). Belitsky argues that the warrant is invalid because (1) images of child pornography were never on his computer; (2) agents seized his gun safe, which was not identified in the warrant as an item to be seized; and (3) Agent Cecchini lied in the search warrant affidavit when he stated he was located in Oklahoma City, Oklahoma. (
To succeed on an ineffective assistance of counsel claim premised on a violation of the Fourth Amendment, a petitioner must prove that his underlying Fourth Amendment claim is meritorious.
Belitsky argues that the search warrant is invalid because there were no images of child pornography ever on his computer. (Cv. Doc. #8, pp. 3-6). This is essentially a challenge to the sufficiency of the evidence at trial, which was addressed at the close of the government's case and on direct appeal. The Eleventh Circuit held that the evidence at trial was sufficient to support Belitsky's convictions.
Belitsky also contends that the agents exceeded the scope of the search of his home when they seized his gun safe, which was not described in the search warrant. (Cv. Doc. #8, pp. 6-8). He maintains that trial counsel should have filed a motion to exclude evidence.
The Court has reviewed the search warrant as provided by Belitsky. (Cv. Doc. 8-5, pp. 19-24). The search warrant included various items to be searched and seized, including "books and magazines" and "originals, copies and negatives" of child pornography. (Cv. Doc. 8-5, p. 33). Thus, the search warrant certainly authorized the officers to search the contents of the safe, which obviously could have contained such items. The Eleventh Circuit summarized the applicable precedent in
In addition, Belitsky did not suffer prejudice because there was no evidentiary value to the gun safe. The gun safe issue was discussed at trial and subject to direct- and cross-examination. (Cr. Docs. #176, p. 118-120; #177, pp. 10-11, 23-27, 35). As the Court stated previously, the issue of the seizure of the gun safe had always been merely a "red herring" at trial. (Cr. Doc. #219, p. 174). Trial counsel did not violate the Sixth Amendment by failing to file a motion to suppress on the basis of the seizure of the safe.
Lastly, Belitsky argues that the search warrant is invalid because Agent Cecchini lied in the search warrant affidavit that he was located in Oklahoma City, Oklahoma, but at trial, testified that he was located in Tulsa, Oklahoma. (Cv. Doc. 8, p. 5). Belitsky mischaracterizes Agent Cecchini's testimony. At trial, Agent Cecchini testified that, although he works out of the Oklahoma City FBI field office, he is also assigned to the Tulsa sub-office. (Cr. Doc. #176, p. 4). Thus, because Belitsky's allegation is unfounded, the Court finds that no reasonable counsel would have filed a motion asserting such a claim.
Belitsky argues that trial counsel provided ineffective assistance by failing to file a motion to dismiss the Indictment as being the product of perjured testimony. (Cv. Doc. #8, pp. 8-9). In support, he asserts that (1) Officer Nahmens falsely misrepresented the number of child pornography images initially downloaded from Belitsky's computer; (2) the government misled the grand jury as to the facts supporting the distribution charge; and (3) the government misled the grand jury as to the reason it took nearly a year to indict him. (
To succeed on a claim that counsel was deficient by failing to file a motion to dismiss an indictment, petitioner "would have to show a reasonable probability that, had a motion to dismiss the indictment been made, it would have been granted."
Petitioner has not come near satisfying the required standard. As the Eleventh Circuit summarized in Akel:
Belitsky asserts that Officer Nahmens' failure to recall the exact number of child pornography files initially recovered from Belitsky's computer amounted to perjury. (Cv. Doc. #8, pp. 8-9). The Court has reviewed the relevant grand jury testimony as provided by Belitsky (Cv. Doc. #8-6, p. 2), and finds there was no perjury and no prejudice to petitioner. There is no showing that Officer Nahmens willfully intended to falsify the number of files recovered, and the testimony merely shows that Officer Nahmens had a faulty memory as to the exact number of files recovered. This is insufficient to rise to the level of perjury. In addition, the number of files was not material, since knowing possession of any amount of child pornography is illegal. Nothing about this information would suggest to a reasonably competent attorney that a motion to dismiss the indictment was appropriate under the relevant legal standard. Counsel did not render deficient performance by failing to file such a motion.
Belitsky also argues that his attorney should have asserted that the government lied to the grand jury about which evidence supported the charge for distribution of child pornography. (Cv. Doc. #8, p. 9). But the record does not support this argument. (Cv. Doc. #8-6, pp. 6-9). A review of the grand jury testimony provided by Belitsky shows that the distribution charge was based on the fact that Belitsky utilized a peer-to-peer file sharing program — namely, LimeWire — to store files of child pornography and that the government was able to access these files. (
Finally, Belitsky asserts that trial counsel should have filed a motion to dismiss the Indictment because the government misled the grand jury as to the reason it took nearly a year to receive forensic evidence and indict him. (Cv. Doc. #8, pp. 9-10). Belitsky does not allege that his Indictment was untimely (nor could he), but rather that the government was not forthcoming with the grand jury about the timing of the investigation. While petitioner sees a government conspiracy, the record establishes that computer forensic investigations take time, and the length is affected by the volume and priority of cases and lack of available FBI personnel. (Cv. Doc. #8-6, pp. 18-20). There was no credible evidence which would have allowed a reasonably competent attorney to file a motion to dismiss the Indictment on this basis.
Belitsky has not shown any basis upon which a reasonably competent defense counsel should have challenged the Indictment in this case. Counsel was not deficient in failing to move to dismiss Belitsky's Indictment, and petitioner suffered no prejudice because any such motion would have been denied as without merit.
Belitsky alleges that trial counsel rendered ineffective assistance of counsel when he entered into "false" stipulations without Belitsky's consent. (Cr. Doc. #290, p. 5; Cv. Doc. #1, p. 5; Cv. Doc. #8, p. 16). The Court disagrees.
There were two stipulations made at trial. First, Belitsky and his counsel signed a written stipulation, which was admitted into evidence, that the images in the government's exhibits depicted child pornography. (Trial Ex. 18-21, 27). Second, trial counsel stipulated that the images moved in interstate commerce. (Cr. Doc. #147, p. 11).
Trial counsel is permitted to make strategic decisions that effectively waive a defendant's constitutional rights.
As the Eleventh Circuit seemed to suggest, trial counsel was not deficient in agreeing to stipulate that the images depicted child pornography. (Trial Ex. 18-21).
Trial counsel's strategic decision to stipulate to the commerce element was objectively reasonable, and Belitsky cannot show prejudice. By stipulating to this technical element, counsel could focus on petitioner's theory of the case, that the child pornography images found on Belitsky's computer were planted by a virus or another individual. Additionally, Belitsky has not shown that any prejudice resulted from the stipulation. The evidence was overwhelming that the images on the computer did impact commerce.
This is not a case in which counsel conceded Belitsky's guilt.
In Ground Two, Belitsky asserts that his appellate counsel rendered ineffective assistance of counsel when he: (1) failed to assert Belitsky's claims of ineffective assistance of trial counsel on direct appeal; (2) advised Belitsky that his claims would be best asserted in a § 2255 motion; and (3) filed a voluntary dismissal of the appeal without his consent. (Cr. Doc. #290, pp. 6-7; Cv. Doc. #1, pp. 6-7). The Court finds that none of these claims establish ineffective assistance of appellate counsel.
On January 24, 2012, Belitsky filed a Notice of Appeal. (Cr. Doc. #242). After this Court granted Attorney Mycki Ratzan's Motion to Withdraw (Cr. Doc. #250), Attorney Gilbert Schaffnit (Schaffnit) entered his appearance as appellate counsel. (Cr. Doc. #254; Appearance of Counsel Form,
On January 22, 2013, Schaffnit filed a motion to voluntarily dismiss Belitsky's appeal with prejudice. (Mot. to Dismiss Appeal with Prejudice,
On March 25, 2013, Belitsky filed a
On May 1, 2013, the Eleventh Circuit granted Belitsky's Motion for Reconsideration, vacated its Order, and reinstated his appeal. (Order on Mot. for Recons.,
After Belitsky informed the Eleventh Circuit that he had terminated Schaffnit, the Court of Appeals construed his communication as a motion to discharge and proceed
Belitsky argues that Schaffnit was deficient by (a) failing to raise claims of ineffective assistance of trial counsel — as asserted in Ground One of the § 2255 motion — on direct appeal, and (b) advising him that the claims were best raised in a § 2255 proceeding. (Cr. Doc. #290, p. 6; Cv. Doc. #1, p. 6). The Court finds no basis for ineffective assistance of appellate counsel, and denies Ground Two.
Belitsky has not shown that Schaffnit was deficient or that prejudice occurred. First, for the reasons stated earlier, none of the issues Belitsky raises have merit, and an appellate attorney is not ineffective in failing to raise meritless issues on appeal.
Belitsky asserts that Schaffnit rendered ineffective assistance of counsel when he filed an
In Ground Three, Belitsky further contends that trial counsel was ineffective because he failed to object to multiple instances of egregious conduct by the prosecutor and, thus, petitioner was denied a fair trial. (Cr. Doc. #290, pp. 8-9; Cv. Doc. #1, pp. 8-9; Cv. Doc. #8, pp. 18-32). Belitsky alleges that the government: (1) withheld exculpatory evidence
Belitsky contends that counsel failed to object to the government's withholding of evidence. (Cr. Doc. #290, p. 8; Cv. Doc. #1, p. 8; Cv. Doc. #8, p. 18-19). He alleges that the government withheld from him: (a) the second page of a fax exhibit that was used during the testimony of Comcast employee, Karen Webb; (b) the judicial signature page of the search warrant; and (c) until the morning of the second trial, data sheets from Belitsky's computer. (Cv. Doc. #8, p. 18-19).
The government has a constitutional obligation to disclose exculpatory evidence in its possession to a defendant.
Belitsky has not provided any credible showing of a
Belitsky contends that the prosecutor, his first defense counsel, and an FBI agent altered discovery material. (Cv. Doc. #8, pp. 19-20). Belitsky raised this exact argument in his
Belitsky asserts that trial counsel was deficient in failing to assert prosecutorial misconduct when the prosecutor solicited and used perjured testimony from Comcast employee, Karen Webb, Officer Nahmens, and Agents Cecchini and Arndt at trial. (Cv. Doc. #8, pp. 20-22). "To establish prosecutorial misconduct for the use of false testimony, a defendant must show the prosecutor knowingly used perjured testimony, or failed to correct what he subsequently learned was false testimony, and that the falsehood was material."
Belitsky asserts that the prosecutor knew that he did not have images of child pornography on his computer and conspired with Agents Cecchini and Arndt to "fool the jury" in order to obtain a conviction. (Cv. Doc. #8, pp. 5, 19, 21-22). There is no evidence from which a reasonably competent defense lawyer could draw any such conclusion. Belitsky identifies allegedly false statements by Karen Webb, Agent Cecchini, and Agent Arndt, asserting that the prosecutor submitted screen captures that were not from his computer and he contends that the Comcast fax used at trial was not generated by Comcast but a "cut and paste that was made at someone's desk." (
The Court finds that there was no basis for trial counsel to assert a claim for prosecutorial misconduct, and therefore no ineffective assistance occurred.
Belitsky argues that trial counsel "sealed [his] conviction at closing." (Cv. Doc. #8, p. 30). Specifically, he asserts counsel performed deficiently during closing arguments by: (1) bolstering Agent Cecchini's character; (2) bolstering the prosecutor's character; (3) focusing the jury's attention on damaging evidence to the defense; and (4) admitting that the government did not plant the pornography on Belitsky's computer. (
The Court's scrutiny is highly deferential to counsel and, thus, there is a strong presumption that counsel's performance is reasonable professional assistance.
Belitsky alleges that trial counsel bolstered Agent Cecchini's character by stating he was a "nice guy . . . doing a wonderful job" and held "a very laudable goal" of protecting child pornography victims. (Cv. Doc. #8, p. 25). In addition, he asserts that trial counsel bolstered the prosecutor's character by stating, "Miss Viacava's integrity is beyond reproach." (Cr. Doc. #190, p. 35; Cv. Doc. #8, p. 27-28). A review of the record refutes Belitsky's claims. First, with regard to Agent Cecchini, while counsel did not attack the Agent personally, the overall theme of the closing argument was to attack the Agent's (and FBI's) handling of the investigation. (Cr. Doc. #190, pp. 22-23). Trial counsel repeatedly argued that the government's evidence failed to show that Belitsky "knowingly" possessed child pornography. Turning to counsel's comments about the prosecutor, he explained:
(Cr. Doc. #190, pp. 35-36). Counsel attacked the integrity of the case — not the government actors personally — and placed blame on the government's mishandling of the investigation. (
Next, Belitsky argues that counsel rendered deficient performance by focusing the jury's attention on the timing of the pornography downloads, which was damaging evidence to the defense. (Cv. Doc. #8, p. 26). Rather, the record shows that counsel attempted to diminish the value of this evidence by arguing that the government failed to conduct "little old-fashioned police work" by setting up a "ghost watch" to identify the true individual or virus behind the downloads. (Cr. Doc. #190, p. 25). Counsel's argument was a reasonable, tactical approach to combat the government's case, and therefore he did not perform deficiently.
Lastly, Belitsky argues that counsel was deficient because he told the jury that the government did not plant pornography on Belitsky's computer. (Cv. Doc. #8, p. 29). The Court finds that this does not amount to ineffective assistance of counsel. Trial counsel's theme was not that the government conspired against Belitsky but that its investigation was "lazy, incompetent, inept" and "irrelevant," and therefore it could not show that he "knowingly" possessed pornography. (Cr. Doc. #190, pp. 28-29, 44). His theme was "reasoned" and "rational" given the weight of the evidence against Belitsky.
Because counsel "presented a reasoned and rational theme to the jury during closing argument," the Court finds that he did not render ineffective assistance of counsel.
Belitsky asserts that counsel performed deficiently because he sent the FBI to threaten defense witness, Christopher Long, with an arrest for downloading child pornography. (Cv. Doc. #8, pp. 28-29). He argues that this alleged threat caused Long's trial testimony to change. (
Belitsky argues that this Court erred by instructing the jury that, because the parties stipulated that the images depicted child pornography and had traveled in interstate commerce, it could treat those facts as proven. (Cr. Doc. #290, p. 9; Cv. Doc. #1, p. 9; Cv. Doc. #8, p. 32-40). In doing so, Belitsky asserts that the Court usurped the role of the jury as finders of fact.
Belitsky made this exact argument on appeal, and the Eleventh Circuit held that, because trial counsel agreed to the proposed instruction at the pre-trial conference and stipulated to the facts, the invited-error doctrine precluded review of the jury instructions.
Accordingly, it is hereby
