JOHN J. MCCONNELL, JR., United States District Judge.
Adam Cobb files his petition for post-conviction relief after having plead guilty to a one-count Information alleging that he had distributed child pornography in violation of 18 U.S.C. § 2252(a)(2). He claims ineffective assistance of counsel. Finding no basis for granting the extraordinary relief, the Court DENIES his Motion to Vacate. ECF No. 64.
Adam Cobb is a former professor at the Naval War College. He was 47 years old at all relevant times. He plead guilty to having been involved in sending, receiving and producing lascivious photographs of naked minor children.
Mr. Cobb agreed to the truth of these facts at his change of plea:
ECF No. 60 at 13-17.
Mr. Cobb was arrested and charged by complaint with Distribution and Receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2). ECF No. 3. On that same day, two experienced criminal defense attorneys entered their appearances for Mr. Cobb. ECF Nos. 5 and 6. The Court at first detained Mr. Cobb but the Magistrate Judge later released him on $1,000,000 full surety.
The Government filed a series of motions to extend the 30-day time to indict under the Speedy Trial Act, 18 U.S.C. § 3161(b), under the tolling provisions in 18 U.S.C. § 3161(h). The parties stated they needed time to engage in plea negotiations, as well as to view and digest the complex evidence accumulated against Mr. Cobb during the investigation. Mr. Cobb's attorneys met with the prosecutor to review evidence and discuss the case. After seeing the evidence amassed against Mr. Cobb, those attorneys proposed a guilty plea by Mr. Cobb.
Mr. Cobb then fired these attorneys and retained new counsel. Much of the pretrial work therefore began anew. ECF Nos. 25 and 26.
Mr. Cobb's new attorney met with the Government who again reviewed the evidence against Mr. Cobb, including the digital evidence and the images seized from Mr. Cobb's electronic devices. As with Mr. Cobb's first attorneys, his new attorney reasonably pursued a strategy of trying to minimize his ultimate sentence.
Meanwhile, Mr. Cobb had collected several unauthorized electronic devices while on pretrial release without Probation's approval. He also had renewed contact with the victim and admitted he had violated his bail conditions. The Magistrate Judge ordered him detained. ECF No. 33.
After further extensive negotiations between the parties, the Government then filed an agreed-to one-count Information and plea agreement. ECF Nos. 37 and 38. Mr. Cobb appeared before the Magistrate Judge, who questioned him thoroughly before accepting his waiver of indictment. ECF Nos. 39 and 62. Mr. Cobb then pleaded guilty to the Information before this District Judge. ECF No. 60. During the change-of-plea hearing, Mr. Cobb told this Court that he understood the rights he was waiving by pleading guilty, and that he was fully satisfied with the advice his attorneys had given him. Id. at 5 ("THE COURT: Are you fully satisfied with the representation that you've received from your counsel in this case, Mr. Cobb? THE DEFENDANT: I am."). Mr. Cobb admitted that the facts the Government had recited were true. Id. at 12-17.
The Court sentenced Mr. Cobb according to the parties' joint recommendation of 60 months of incarceration followed by ten years of supervised release and a $25,000 fine. In sentencing Mr. Cobb, the Court stated:
ECF No. 63 at 16-17.
A year later, Mr. Cobb filed this Motion to Vacate
Section 2255 provides for post-conviction relief if a court sentenced a petitioner in violation of the Constitution or if the sentence is otherwise subject to collateral attack. United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979); David v. United States, 134 F.3d 470, 474 (1st Cir. 1998). In seeking to attack collaterally his sentence, the petitioner bears the burden of proving "exceptional circumstances" that warrant redress under § 2255. See Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Mack v. United States, 635 F.2d 20, 26-27 (1st Cir. 1980). For example, an error of law must constitute a "fundamental defect which inherently results in a complete miscarriage of justice." Hill, 368 U.S. at 428, 82 S.Ct. 468; accord David, 134 F.3d at 474.
The Sixth Amendment guarantees defendants the right to effective assistance of counsel. Lema v. United States, 987 F.2d 48, 51 (1st Cir. 1993) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Even so, "[t]he Constitution does not guarantee a defendant a letter-perfect defense or a successful defense; rather, the performance standard is that of reasonably effective assistance under the circumstances then obtaining." United States v. Natanel, 938 F.2d 302, 309-10 (1st Cir. 1991).
A defendant who claims that he was deprived of his Sixth Amendment right to effective assistance of counsel must prove:
Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. 2052; see also United States v. Manon,
Strickland instructs, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. 2052. The court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 S.Ct. 83 (1955)). Moreover, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691, 104 S.Ct. 2052. Finally, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689, 104 S.Ct. 2052.
These same principles apply in the context of guilty pleas. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The Hill Court held that "the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Id. at 58, 106 S.Ct. 366; see also Padilla v. Kentucky, 559 U.S. 356, 371 n.12, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ("In Hill, the Court recognized—for the first time—that Strickland applies to advice respecting a guilty plea."). In the context of guilty pleas, the first prong of the Strickland test is just a restatement of the standard of attorney competence described above. Hill, 474 U.S. at 58, 106 S.Ct. 366.
Id. at 59, 106 S.Ct. 366; see also Lafler v. Cooper, 566 U.S. 156, 163, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) ("In the context of
Because the need for finality has "`special force with respect to convictions based on guilty pleas,'" a guilty plea may be attacked on collateral review only in "strictly limited" circumstances. Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979)). In particular, "a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). Thus, when a defendant files a Section 2255 motion to challenge the validity of a conviction under a guilty plea, "the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary." United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989).
Mr. Cobb in large measure asserts that his attorneys were ineffective for several reasons, including failing to object to delays pre-indictment, failing to challenge the constitutionality of various searches, and misadvising him to waive his right to a grand jury indictment and to plead guilty.
The Court first determines if Mr. Cobb's attorneys' performance fell below an objective standard of reasonableness, and if so, whether the outcome would have been different.
Mr. Cobb's primary claim is that his guilty plea was rendered defective through the alleged failure of his counsel to investigate the reasons for the 10-month period from his arrest until he pleaded to the Information. Mr. Cobb argues that the prosecution's "failure" to secure an indictment during this time shows that the Government had a weak case, and indeed could not generate sufficient evidence to obtain an Indictment. ECF No. 70 at 44-47.
Mr. Cobb's analysis and conclusions are flawed. It contains unsupported innuendoes, conspiracy theories, and speculation about the reasons for the delay in presenting this case to the grand jury. As set forth in the facts to which Mr. Cobb voluntarily admitted at his change of plea, the Government possessed overwhelming evidence of Mr. Cobb's guilt, which, if presented to a grand jury, would have likely resulted in an indictment for various offenses. The Government's evidence included various sexually explicit images—some which show Mr. Cobb producing those images —of two separate minors. ECF No. 60 at 14-17.
Thus, Mr. Cobb's attorney's "failure to investigate" this delay, was not a failure at all, but the result of an apparent strategy to deal with the overpowering evidence before him to minimize his client's ultimate sentence by negotiating with the Government and counseling his client to accept responsibility. Counsels' pre-indictment work to minimize Mr. Cobb's sentence was a strategy ultimately successful. Instead of quickly getting an easily-obtained indictment,
Most important, the delay allowed his attorneys to negotiate with the prosecution to forego charging him with manufacturing child pornography—a charge that would have imposed a 15-year mandatory minimum sentence. There was sufficient evidence to have supported a manufacturing charge. Moreover, even without the mandatory minimum for manufacturing, Mr. Cobb was facing a Sentencing Guidelines range of 121-151 months.
Mr. Cobb's attorneys' strategy was reasonable, as evidenced when he obtained the lowest possible sentence under law, despite a Guideline range twice as high as the sentence he obtained, and even though the Court said it concluded the jail sentence negotiated between the parties would have been longer but for their negotiated agreement. ECF No. 63 at 16-17.
Thus, Mr. Cobb's attorneys' performance exceeded the standards under Strickland's first prong. The agreed-to delay in presenting this case to the grand jury was a smart, appropriate, and effective means to minimize Mr. Cobb's prison exposure. Because Mr. Cobb's attorneys negotiated a significantly reduced sentence in the face of overwhelming culpable evidence, potentially triple mandatory minimum, and higher Guideline range, there certainly was no prejudice to him by the delay in indicting him, or the waiver of his right to indictment.
Mr. Cobb faults his attorney for failing to investigate suppression issues arising from the border seizure of his iPhone at the Dallas-Fort Worth airport. See ECF No. 70 at 21-23, 32-35.
"When a petitioner alleges that counsel was ineffective for failing to move to suppress evidence, we require him to `prove the motion was meritorious.'" Long v. United States, 847 F.3d 916, 920 (7th Cir. 2017) (quoting United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005)); see also Jaynes v. Mitchell, 824 F.3d 187, 196 (1st Cir. 2016) (holding that a claimant must show that underlying proposed suppression motion must be meritorious); Koons v. United States, 639 F.3d 348, 351-52 (7th Cir. 2011) (holding that where defendant consented to search, ineffective assistance of counsel claim fails as any motion to suppress would have been defeated). Mr. Cobb cannot show that any motion to suppress the fruits of the border search would have been meritorious.
First, the general rule is that there is a significant lower threshold for searches made at the border. United States v. Montoya de Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) ("Consistently, therefore, with Congress' power to protect the Nation by stopping and examining persons entering this country, the Fourth Amendment's balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant ..."); see also Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Here, there was only a seizure of the phone; authorities did not search the
Second, even if a cell phone seizure such as occurred here at the border requires reasonable suspicion, investigators possessed —at a minimum—reasonable suspicion that Mr. Cobb's phone might contain child pornography. The search of Mr. Cobb's computer under the state warrant revealed sexually explicit images of the U.K. victim. The search also revealed that these images were sent via the internet from overseas. ICAC members are aware of the cell phone use in distributing child pornography; indeed, as shown in the cell phone affidavit, several cell phones had already been seized under the state warrant. ECF No. 4 at 35, ¶ 15. Accordingly, investigators had, at a minimum, reasonable suspicion to search Mr. Cobb's phone for child pornography.
Finally, even if the Fourth Amendment makes demands that are more stringent on border searches, the search here—only conducted under a search warrant—was conducted in good faith. United States v. Leon, 468 U.S. 897, 923-25, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
Mr. Cobb, for his part, puts forth no facts on which a hypothetical motion to suppress would have succeeded as required when alleging ineffective assistance of counsel in this context. Long, 847 F.3d at 921. Counsel's decision not to pursue potential suppression remedies "was within the `wide range of reasonable professional assistance.'" United States v. Ortiz, 146 F.3d 25, 27 (1st Cir. 1998) (decision not to pursue suppression motion not ineffective) (quoting Strickland, 466 U.S. at 686-87, 104 S.Ct. 2052).
Mr. Cobb also brings claims alleging prosecutorial misconduct, judicial error, violations arising from the conduct of law enforcement, and speedy trial violations.
Mr. Cobb plead guilty to the charges brought against him. The U.S. Supreme Court instructs that "[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). The First Circuit has "assiduously followed the letter and spirit of Tollett, holding with monotonous regularity that an unconditional guilty plea effectuates a waiver of any and all independent non-jurisdictional lapses that may have marred the case's progress up to that point ..." United States v. Cordero, 42 F.3d 697, 699 (1st Cir. 1994). The inquiry into Mr. Cobb's other claims, therefore ends here.
Adam Cobb has failed to show any reason this Court should disregard his plea of guilty. He claims ineffective assistance of counsel as a basis, but a review of the facts establishes that just the opposite is true. Mr. Cobb faced a mandatory minimum of 15 years of imprisonment, a Sentencing Guideline range of over ten years, and a sentencing judge that felt that the negotiated jail time was insufficient. Both sets of attorneys represented Mr. Cobb well by expertly negotiating a shorter time in prison in the face of overwhelming evidence of
IT IS SO ORDERED.
