ELIZABETH A. PRESTON DEAVERS, Magistrate Judge.
Petitioner, a federal prisoner, brings the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the Motion and Memorandum in Support, ECF No. 137, 143; Respondent's Answer and Supplemental Answer in Opposition, ECF No. 142, 147; Petitioner's Reply, ECF No. 148; and the exhibits of the parties. For the reasons that follow, the Magistrate Judge
Petitioner's request for an evidentiary hearing and the appointment of counsel are
A jury convicted William Conner of four counts of receipt of visual depictions of child pornography and one count of possession of child pornography. The Court entered judgment and sentenced him to 360 months in prison. ECF No. 116, 117. On April 11, 2013, the United States Court of Appeals for the Sixth Circuit affirmed the judgment of this Court. ECF No. 135.
On June 26, 2014, Petitioner filed the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. He asserts that he was denied a fair trial because he was clothed in jail garb and visibly shackled during trial; that his convictions on four counts of receipt of visual depictions of child pornography violate the Double Jeopardy Clause; and that he was denied the effective assistance of counsel based on his attorneys' failure to object to prosecutorial misconduct and the search of his home. It is the position of the Respondent that Petitioner has procedurally defaulted his claims and that they are without merit.
To obtain relief under 28 U.S.C. § 2255, a defendant must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal court imposes a sentence in violation of the Constitution or laws of the United States or the trial court was without jurisdiction or the sentence is in excess of the maximum sentence allowed by law, or is "otherwise subject to collateral attack." United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991). Apart from constitutional error, the question is "whether the claimed error was a `fundamental defect which inherently results in a complete miscarriage of justice.'" Davis v. United States, 417 U.S. 333, 346 (1974)(quoting Hill v. United States, 368 U.S. 424, 428-429 (1962); see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). Claims of a nonconstitutional dimension that are not raised at trial or on direct appeal are waived for collateral review except where the errors amount to something akin to a denial of due process.
It is well-established that a § 2255 motion "is not a substitute for a direct appeal." Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (quoting Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). Accordingly, claims that could have been raised on direct appeal, but were not, will not be entertained via a motion under § 2255 unless the petitioner shows cause and actual prejudice to excuse his failure to raise the claims on direct appeal or that he is "actually innocent" of the crime. Ray, 721 F.3d at 761 (citing Bousley v. United States, 523 U.S. 614, 622 (1998) (internal citations omitted)). "To obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." Frady, 456 U.S. at 166.
Petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to object to prosecutorial misconduct and failed to properly argue the motion to suppress evidence. To the extent that Petitioner was represented by counsel at the time of the filing of the motion to suppress evidence, the Court will consider that issue below. The former claim, however, is waived because Petitioner elected to exercise the right of self-representation. The United States Supreme Court noted in Faretta v. California, 422 U.S. 806, 834 n.46 (1975), that "a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of the effective assistance of counsel." See also McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984); United States v. McDowell, 814 F.2d 245, 251 (6th Cir. 1987); Lawton v. Ludwick, No. 2:10-cv-10048, 2015 WL 400788, at *6 (E.D. Mich. Jan. 28, 2015).
Petitioner argues, however, that he did not knowingly and intelligently relinquish his right to counsel. Reply, ECF No. 148, PageID# 1608-09. The Court first turns to this issue.
"The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel[.]" Faretta, 422 U.S. at 807. The government, however, cannot force an attorney to represent a criminal defendant who wants to conduct his own defense. Id.
Id. at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350-351 (1970) (Brennan, J., concurring) (footnote omitted). Because an accused who chooses the right of self-representation thereby relinquishes many of the benefits associated with the right to counsel, he must knowingly and intelligently waive the right to counsel. Id. at 835. "Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose selfrepresentation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'" Id. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)).
The Supreme Court's analysis in Faretta is instructive. There, the Supreme Court noted that Faretta had knowingly and intelligently waived his right to counsel where, "weeks before trial, Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel." The record showed that Faretta was literate, competent and understanding, and was voluntarily exercising his informed free will. The trial court warned Faretta that it thought it was a mistake and that Faretta would be required to follow the rules of procedure. Id. Such are the circumstances here.
The Court appointed the Office of Federal Public Defender to represent Petitioner. In February 2011, Petitioner requested the appointment of new counsel referring to a break-down in the attorney-client relationship. ECF Nos. 28, 29. Petitioner complained that his attorney, the Federal Public Defender Steven Nolder, "insisted" that he plead guilty and urged Petitioner to view a VHS tape depicting child pornography that would be submitted as evidence against him. Reply, ECF No. 148, PageID# 1608. The Court granted Petitioner's request for new counsel and appointed Kort Gatterdam
PageID# 1566. The Court informed Petitioner that his attorney was experienced and competent, "what I consider to be one of the best attorneys, whether the attorney is hired or appointed[.]" PageID# 1567-68. After being provided a recess to discuss the matter with counsel, however, Petitioner refused representation by counsel. PageID# 1569. He again stated that he wanted to represent himself, despite the Court's repeated admonitions against doing so. PageID# 1569-70. Petitioner admitted that no one had coerced him into the decision. PageID# 1571. After a lengthy discussion, the Court found that Petitioner had knowingly and voluntarily waived his right to counsel. Id. Petitioner refused the appointment of stand-by counsel. PageID# 1571-72. The Court again warned Petitioner against exercising the right of self-representation.
PageID# 1573.
On August 29, 2011, after the government's opening statement, Petitioner stated that he had changed his mind. ECF No. 127, PageID# 955. "I would like to have my attorney back. I didn't think it was going to be this complicated[.]" Id. The Court denied Petitioner's request. "You can't stop the proceedings in the middle of it and try to say now that you wish to have an attorney. It's too late." PageID# 957. The Court, however, arranged for and appointed standby counsel in less than two hours of Petitioner's request. PageID# 962.
Although a defendant's decision to exercise his right to self-representation is not "a choice cast in stone," the right to counsel—once waived—is no longer absolute, and may be denied where further delays would prejudice court, the parties, or the witnesses. McCormick v. Adams, No. CIVS-05-0735 JAM GGH, 2008 WL 2561101, at *12 (E.D. Cal. June 24, 2008)(citing Menefield v. Borg, 881 F.2d 696, 700 (9th Cir. 1989)). "There are times when the criminal justice system would be poorly served by allowing the defendant to reverse his course at the last minute and insist upon representation by counsel." Menefield, 881 F.2d at 700 (citing United States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986); United States v. Leavitt, 608 F.2d 1290, 1293 (9th Cir. 1979)). "The right of self- representation is not a license to abuse the dignity of the courtroom." Faretta, 422 U.S. at 834 n.46.
United States v. Condor, 423 F.2d 904, 907-08 (6th Cir. 1970)(citations omitted).
Here, after being well advised of the dangers and pitfalls of self-representation, the seriousness of the charges and potential sentence he faced, Petitioner knowingly and intelligently, with eyes wide open, chose to exercise his right to self-representation. Faretta, 422 U.S. at 835. The Court repeatedly warned Petitioner against exercising his right to selfrepresentation, and urged him to reconsider the decision prior to trial. As an indigent defendant, Petitioner does not have a Sixth Amendment right to be represented by his counsel of choice. Bullock v. Jackson, No. 1:07-cv-392, 2008 WL 4921355, at *6 (S.D. Ohio Aug. 26, 2008)(citing Wilson v. Parker, 515 F.3d 682, 696 (6th Cir. 2008) (citing Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989); Morris v. Slappy, 461 U.S. 1, 14 (1983)); see also Daniels v. Lafler, 501 F.3d 735, 739 (6th Cir. 2007)(same). Petitioner had explicitly rejected the services of three attorneys. He waited until after the jury had been selected and the Prosecutor made his opening statement to say that he had changed his mind. Although the Court rejected Petitioner's demand for an attorney, the Court appointed stand-by counsel who joined Petitioner in the courtroom within minutes of his request. Petitioner's attempted revocation of his decision to represent himself mid-trial does not undermine the fact that he knowingly and intelligently waived his right to counsel. Therefore, he cannot now claim the denial of the effective assistance of counsel in this regard.
Petitioner asserts that he was denied a fair trial because he was clothed in jail garb and visibly shackled during trial. He also maintains that the charges against him were multiplicitous and therefore violate the Double Jeopardy Clause. Petitioner has waived these claims by failing to raise them on appeal. Thus, these claims are procedurally defaulted. Petitioner therefore must establish cause and prejudice to obtain review of these claims. See Murray v. Carrier, 477 U.S. 478, 485 (1986) ("A federal habeas petitioner who fails to raise claims on direct appeal is required to demonstrate both cause and prejudice to excuse procedural default."); Massaro, 538 U.S. 500, 504 (2003)(citing United States v. Frady, 456 U.S. at 167-68)). As cause for his procedural default, Petitioner asserts the denial of the effective assistance of appellate counsel. He argues that his appellate counsel should have raised these issues on appeal.
"In all criminal prosecutions," the Sixth Amendment affords "the accused . . . the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. "Only a right to `effective assistance of counsel' serves the guarantee." Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011) (citation omitted). The United States Supreme Court set forth the legal principals governing claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a petitioner claiming ineffective assistance of counsel to demonstrate that his counsel's performance was deficient and that he suffered prejudice as a result. 466 U.S. at 687; Hale v. Davis, 512 F. App'x 516, 520 (6th Cir. 2013). A petitioner "show[s] deficient performance by counsel by demonstrating `that counsel's representation fell below and objective standard of reasonableness." Poole v. MacLaren, No. 12-1705, 547 F. App'x 749, 2013 WL 6284355, at *5 (6th Cir. Dec. 5, 2013) (quoting Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (internal quotation marks omitted) and citing Strickland, 466 U.S. at 687)). To make such a showing, a petitioner "must overcome the `strong [ ] presum[ption]' that his counsel `rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Poole, 2013 WL 6284355 at *5 (quoting Strickland, 466 U.S. at 687). "To avoid the warping effects of hindsight, [courts must] `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Bigelow v. Haviland, 576 F.3d 284, 287 (6th Cir. 2009) (quoting Strickland, 466 U.S. at 689).
The Strickland test applies to appellate counsel. Burger v. Kemp, 483 U.S. 776 (1987). Counsel must provide reasonable professional judgment in presenting the appeal. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). "`[W]innowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). The Court must assess the strength of the claim appellate counsel failed to raise. Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008). "[P]rejudice is shown if there is a reasonable probability that, but for his counsel's failings, the defendant would have prevailed on his appeal." Simmons v. Howes, No. 1:09-cv-708, 2012 WL 4372889, at *5 (W.D. Mich. Aug. 21, 2012)(citing Evans v. Hudson, 575 F.3d 560, 564 (6th Cir. 2009 (internal citation omitted)). "Counsel's failure to raise an issue on appeal could only be ineffective assistance if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal." McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004)(citation omitted).
Petitioner's assertion that his appellate counsel was ineffective for failing to assert these issues on appeal clearly lacks merit. Petitioner agreed to be visibly shackled and handcuffed during trial. Further, the Court provided him the opportunity to appear in the clothing of his choice. On August 25, 2011, at the pre-trial conference, the Court asked Petitioner whether he intended to wear jail garb or street clothes during trial. ECF No. 141, PageID# 1440. Petitioner acknowledged that his attorney had advised him against appearing before the jury in his jail clothing. Petitioner, however, declined to accept this advice and questioned why he should "lie" to the jury. "I don't feel that I should be lying to the jury by coming in here being false pretense like I ain't arrested." Id. The Court told Petitioner to decide what he wanted to do so that he could make arrangements for clothes to be available. PageID# 1441. On the first day of trial, Petitioner indicated that his sister had provided street clothes for him to wear but that they were at the Franklin County Jail. The Court provided a thirty minute recess so that the Marshals could obtain the clothing. ECF No. 127, PageID# 924-26.
Petitioner's assertions regarding the physical restraints he wore during the trial likewise are unavailing. At the final pretrial conference, the Court advised Petitioner that the United States Marshal's Office intended to use an electronic restraint device (stun belt) throughout the duration of the trial. PageID# 1442. The Court explained to Petitioner that, to accommodate Petitioner's self-representation, his shackles and handcuffs would be removed, but a stun belt would be placed around his belt area underneath his clothes where it would not be visible to the jury. PageID# 1443. If, however, Petitioner acted in a threatening manner, the Marshals would activate the stun belt. PageID# 1443-44. Petitioner indicated that he understood and that it did not matter to him. Id. He was "fine" with the use of handcuffs and shackles. "I'm comfortable in these one way or the other. I can wear these." PageID# 1450. COURT: What I'm trying to say is this: When you appear in court in jail clothes and in physical restraints that are visible, it might give the wrong impression to the jury —
PageID# 1452-53. Petitioner reiterated that he wanted to wear handcuffs and shackles, and the Court took the matter under advisement.
Petitioner now claims that he only chose to appear in handcuffs and shackles because he felt he had no choice. He now contends that he was afraid of wearing a stun belt due to a heart condition. Reply, ECF No. 148, PageID# 1606. Petitioner made the same assertion on the first day of trial. ECF No. 127, PageID# 927. He indicated again at that time that he understood he had the right to the use of a stun belt but nevertheless declined to exercise that right. PageID# 928.
The record fails to support Petitioner's claim that he had no choice but to proceed to trial wearing handcuffs and shackles. The Court plainly informed Petitioner that the stun belt would only be used if Petitioner acted disruptively. Petitioner nonetheless chose not to avail himself of this alternative means of maintaining courtroom security. The Court urged Petitioner to reconsider his decision, and provided him with the opportunity to wear the clothing of his choice at trial with the belt beneath his shirt and out of view of the jury. Petitioner now asserts that the Court lacked grounds on which to justify the use of restraints. Reply, ECF No. 148, PageID# 1611. Even if that argument had merit, again, the Court need not address this issue as it pertains to ineffective assistance because Petitioner knowingly exercised the right to self-representation. Petitioner plainly agreed to wear shackles and handcuffs at trial. Further, the record demonstrates that Petitioner was not otherwise impeded in his ability to present his defense. Petitioner cannot now complain of an alleged error he created on his own behalf.
Fields v. Bagley, 275 F.3d 478, 485-86 (6th Cir. 2001). For all of the foregoing reasons, Petitioner has failed to establish the denial of the effective assistance of appellate counsel based on his attorney's failure to raise these issues on appeal. Consequently, he has procedurally defaulted these claims.
Petitioner asserts that appellate counsel in a constitutionally ineffective manner by failing to raise an issue that the Superseding Indictment was multiplicitous and that his convictions on four counts of receipt of visual depictions of child pornography violate the Double Jeopardy Clause. This claim plainly lacks merit.
"An indictment is multiplicitious if it charges a single offense in more than one count." United States v. Schaffner, 715 F.2d 1099, 1102 (6th Cir. 1983) (citing United States v. Robinson, 651 F.2d 1188, 1194 (6th Cir. 1981)). "A multiplicitous indictment violates Double Jeopardy by subjecting the Defendant to punishment for the same crime more than once." United States v. Adkins, Nos. 5:03-cr-102, 6:08-cv-7033, 2012 WL 1068762, *9 (E.D. Ky. Feb. 22, 2012)( citing United States v. Menichino, Nos. 93-1674, 93-1675, 32 F.3d 569, at *2 (6th Cir. July 20, 1994)(unpublished)). Different depictions of child pornography downloaded on different days, however, do not involve a single act or transaction and therefore do not implicate double jeopardy concerns. Id. (citing United States v. Huber, 414 F. App'x 826, 827 (6th Cir. 2011)); see also United States v. Starr, No. 5:04-091-DCR, 2013 WL 1644867, at *5 (E.D. Ky. April 16, 2013)(possession of multiple, distinct images of child pornography supports separate charges regardless of the date the images are downloaded); United States v. Richards, 659 F.3d 527, 549 n.13 (6th Cir. 2011)(citing United States v. Esch, 832 F.2d 531, 541-42 (10th Cir.1987)(each sexually explicit photograph of children amounted to a separate and distinct sexual exploitation. . . and, therefore, an indictment charging separate counts for each photograph was not multiplicitous, even though the photos depicted the same children and were produced in the same photo session)).
Here, the Superseding Indictment charged Petitioner with four counts of the receipt of visual depiction of child pornography in violation of 18 U.S.C. § 2252(a)(2), (b)(1). Superseding Indictment, ECF No. 77, Counts 1-4. The charges involved four separate acts, alleged to have occurred on four separate dates, May 9, 2009, March 31, 2010, April 3, 2010, and April 7, 2010, respectively, and involved four separate images. The charge on possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), involved Petitioner's alleged possession, on November 5, 2010, of a VHS video tape. PageID# 428. Thus, the charges do not involve the same pornographic material or contain the same underlying acts. As such, the charges do not concern a single act or transaction and are not constitutionally prohibited by the Double Jeopardy Clause. Petitioner has failed to establish that his appellate counsel performed ineffectively for failing to raise this claim on appeal.
Petitioner argues at length that his attorneys performed in a constitutionally ineffective manner in regard to the filing of a motion to suppress evidence. Memorandum in Support, ECF No. 143, PageID# 1532-40. Defense counsel filed a motion to suppress evidence for which the Court held a hearing. ECF Nos. 47, 60, 61, 72, 73. That the Court denied the matter does not constitute the constitutionally ineffective assistance of counsel. Furthermore, appellate counsel raised the issue on appeal. The United States Court of Appeals for the Sixth Circuit affirmed the Court's denial of Petitioner's motion to suppress evidence, concluding that Petitioner had no reasonable expectation of privacy in the peer-to-peer file sharing service:
Petitioner's request for an evidentiary hearing and the appointment of counsel are
If any party objects to this Report and Recommendation, that party may, within fourteen days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. 636(B)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
