BERNARD A. FRIEDMAN, Senior District Judge.
This matter is before the Court on petitioner Kenneth Gourlay's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, petitioner challenges his convictions for two counts of child sexually abusive activity, Mich. Comp. Laws § 750.145c(2); two counts of using a computer to communicate with another to commit child sexually abusive activity, id. § 750.145d(2)(f); two counts of distributing or promoting child sexually abusive material, id. § 750.145c(3); two counts of using a computer to communicate with another to commit distribution of child sexually abusive material; id. § 750.145d(2)(d); third-degree criminal sexual conduct ("CSC"), id. § 750.520d(1)(a); and soliciting a child for immoral purposes, id. § 750.145a.
The trial court sentenced petitioner to concurrent prison terms of six to twenty years for the child sexually abusive activity and using a computer to communicate with another to commit child sexually abusive activity convictions; three to seven years for the distributing or promoting child sexually abusive material convictions, four to ten years for the using a computer to communicate with another to commit distribution of child sexually abusive material convictions, five to fifteen years for the CSC conviction, and 145 days for the soliciting a child conviction. For the reasons that follow, the petition for a writ of habeas corpus is denied.
Petitioner was convicted on March 9, 2007, following a jury trial in the Washtenaw County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).
People v. Gourlay, No. 278214, 2009 WL 529216, at *1B2 (Mich. Ct. App. Mar. 3, 2009).
The Court adds these additional facts from the record:
Petitioner grew Berry's child pornography business from a home-based, part-time site to a 24/7 operation. The record contains an abundance of evidence consisting of chats between Berry and petitioner showing that petitioner was sexually and romantically attracted to Berry. (March 6, 2007, T. pp. 178, 220-22, 235, 236-37.)
Petitioner persuaded Berry to continue producing his child pornography because it was "lucrative," and that Berry should "milk" it for all it was worth. (March 7, 2007, T. pp. 234-35.) While petitioner claims that Berry had many other legitimate web sites on petitioner's internet server, Berry's Mexicofriends.com web site accounted for 51% of petitioner's Internet traffic on his server. (March 6, 2007, T. pp. 22-23, 24.) Furthermore, child pornographic images from Berry's web sites were found on petitioner's hard drive under a folder labeled "Ken."
Petitioner has filed a habeas petition seeking relief on the following claims:
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), imposes the following standard of review for habeas cases:
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 410-11. "[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103. In other words, a habeas petitioner should be denied relief as long as it is within the "realm of possibility" that fairminded jurists could find the state court decision reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
Petitioner contends that he was denied a substantial defense because the trial court judge failed to instruct the jury on 47 U.S.C. § 230, which provides civil immunity to internet service providers who do not create the child pornographic content at issue, and that his counsel was ineffective for failing to request this instruction. Though respondent contends that petitioner's first claim is procedurally defaulted because trial counsel failed to request such instruction or object, the Court will decide this claim on the merits.
Petitioner's claim is meritless because the jury instructions given accurately reflected Michigan law regarding production and distribution of child pornography, and a § 230 instruction would have been inapplicable.
The Michigan Court of Appeals, too, held against petitioner on this instructional claim:
Gourlay, 2009 WL 529216, at * 2B3 (some internal citations omitted). In other words, the Michigan Court of Appeals found that § 230 does not apply to petitioner. Section 230 provides general civil liability for internet service providers who simply make others' content available. Otherwise, it does not "prevent any State from enforcing any State law that is consistent with this section." § 230(e)(3). The Michigan Court of Appeals held that because the criminal laws at issue punish the intentional actions of internet service providers rather than the mere facilitation protected by § 230, they are not inconsistent with § 230. The Court, having reviewed § 230 and the briefing, agrees.
The question is whether the lack of an inapplicable § 230 instruction had a substantial and injurious effect or influence on the jury's verdict. See Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008). An omission or incomplete instruction is less likely to be prejudicial than a misstatement of the law. Henderson v. Kibbee, 431 U.S. 145, 154-55 (1977). The question must be considered in the context of the entire jury charge. Jones v. United States, 527 U.S. 373, 391 (1999). The nature of which jury instructions the trial court judge gives is a matter of state law, and a federal court may not grant a writ of habeas corpus simply because it dislikes the state court's decision. Newton v. Million, 349 F.3d 873, 879 (6th Cir. 2003).
Here, the Michigan Court of Appeals thoroughly articulated the elements necessary to convict a defendant of child sexually abusive activity and of distributing or promoting child sexually abusive material under the criminal laws at issue. See Gourlay, 2009 WL 529216, at * 4-5. The jury instructions, when viewed in their entirety, adequately informed the jury. The trial court judge instructed them that they were required to find that petitioner "persuaded, induced, enticed, coerced, caused or knowingly allowed a child to engage in child sexually abusive activity. And second, that the child sexually abusive activity was for the purpose of producing child sexually abusive material." The jury was instructed on each count which required a finding that petitioner intentionally accosted, enticed, or solicited a child for immoral purposes to produce sexually abusive materials or used a computer in the making of such materials. (March 9, 2007, T. pp. 213-21). And omitting the § 230 instruction does cause a substantial and injurious effect or influence on the jury's verdict because § 230 is inapplicable. This Court defers to the Michigan Court of Appeals' holding. See Seymour v. Walker, 224 F.3d 542, 558 (6th Cir. 2000).
Petitioner further contends that his trial counsel was ineffective by failing to request that the jury be instructed "regarding federal law which affords immunity to web hosts who do not create pornographic content." (Am. Habeas Br. p. 18.) This claim is meritless because petitioner was not entitled to the § 230 instruction. See Mathews v. United States, 485 U.S. 58, 63 (1988); Williams v. Kentucky, 124 F.3d 201, 202 (6th Cir. 1997).
To show that he was denied effective assistance of counsel, petitioner must satisfy a two-prong test. First, he must demonstrate that counsel's performance was so deficient that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, petitioner must show that his counsel's performance prejudiced his defense. Id. However, "[o]mitting meritless arguments is neither professionally unreasonable nor prejudicial." Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013).
Here, petitioner's trial counsel made a logical decision not to request an inapplicable, meritless jury instruction. This was not prejudicial to petitioner's defense, so his ineffective assistance of counsel argument also fails.
Petitioner alleges that he was improperly denied a new trial that he requested based on newly discovered evidence of PayPal payments. Further, he alleges that the prosecution failed to disclose payments made to Berry by reporter Kurt Eichenwald and emails between them about child pornography. Petitioner submits that this failure affected his Confrontation Clause rights.
Regarding the PayPal payments, Petitioner is not entitled to habeas relief on this newly discovered evidence claim. Freestanding claims of actual innocence based on newly discovered evidence are not cognizable on federal habeas review, absent independent allegations of constitutional error at trial. See Cress v. Palmer, 484 F.3d 844, 854-55 (6th Cir. 2007) (collecting cases). Petitioner is not entitled to relief for his newly discovered evidence claim under Supreme Court precedent. See Wright v. Stegall, 247 F. App'x 709, 711 (6th Cir. 2007).
Regarding petitioner's failure-to-disclose argument, he asserts that the prosecution conspired to keep hidden payments from Eichenwald to Berry, emails about child pornography, and Eichenwald's memory loss problems, in violation of Brady v. Maryland, 373 U.S. 83 (1963). There are three elements to a Brady claim: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). This "is a difficult test to meet." Jamison v. Collins, 291 F.3d 380, 388 (6th Cir. 2002).
The Court denies relief for two reasons: First, the PayPal payments had no connection to the JFWY and mexicofriends websites; they therefore were not directly relevant to whether petitioner committed the charged offenses. See Gourlay, 2009 WL 529216, at *6. Because petitioner has failed to offer any evidence or argument to show that the payments contained exculpatory material, petitioner is not entitled to relief.
Second, any additional impeachment evidence in connection with the PayPal payments would have been cumulative of the extensive evidence that was admitted at trial to impeach Eichenwald's credibility. The record reflects extensive testimony pertaining to the $2,000 payment. (See March 8, 2007, T. pp. 87-104.) The record also reflects that testimony was elicited to discredit Eichenwald in an attempt to show he was motivated by greed. (Id. at 84-87.)
Neither is petitioner entitled to relief on his Confrontation Clause sub-claim. There is no Confrontation Clause problem when the witness testifies at trial and is subject to unrestricted cross-examination. See United States v. Owens, 484 U.S. 554, 560 (1988), and Crawford v. Washington, 541 U.S. 36, 59, n.9 (2004). See also California v. Green, 390 U.S. 149, 162 (1970) ("Where the declarant is not absent, but is present to testify and to submit to cross examination, our cases, if anything, support the conclusion that the admission of his out of court statements does not create a confrontation clause problem."). Because Berry and Eichenwald testified at petitioner's trial and were subject to cross-examination, petitioner's Confrontation Clause rights were not violated. Petitioner is not entitled to habeas relief on his second claim.
Petitioner alleges that his trial counsel was ineffective for failing to investigate and present available exculpatory physical evidence from a computer hard drive to show that the child pornography was not knowingly in his possession or distributed over the internet. Petitioner also claims that trial counsel was ineffective for failing to call an expert witness to testify that the three pornographic videos could have been loaded by other means onto petitioner's hard drive other than petitioner.
A habeas petitioner's claim that trial counsel was ineffective for failing to call an expert witness cannot be based on speculation. See Keith v. Mitchell, 455 F.3d 662, 672 (6th Cir. 2006). Petitioner offers no evidence to support his claim that someone other than petitioner loaded the videos onto his hard drive. Further, a claim "based on counsel's failure to call or interview witnesses must present this evidence in the form of the actual testimony by the witness or affidavits." United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991); Harrison v. Quarterman, 496 F.3d 419, 428 (5th Cir. 2007); Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000). Petitioner has failed to provide the names of potential witnesses or supporting affidavits of the content of their presumed testimony. Consequently, petitioner fails to show that trial counsel was ineffective and is not entitled to relief on his third claim.
Based upon the foregoing,
IT IS ORDERED that the petition for a writ of habeas corpus is denied.
IT IS FURTHER ORDERED that a certificate of appealability is denied because petitioner has failed to make a substantial showing of the denial of a federal constitutional right, and leave to appeal in forma pauperis is denied because the appeal would be frivolous. See Dell v. Straub, 194 F.Supp.2d 629, 659 (E.D. Mich. 2002).
