United States District Court, D. Arizona
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Richard Larry Self, also known as, Richard Self, Petitioner (3:13-cv-08199-DGC), Pro se, LITTLETON, CO.
For USA, Respondent (3:13-cv-08199-DGC): Heather H Sechrist, LEAD ATTORNEY, U.S. Attorneys Office - Tucson, AZ, Tucson, AZ.
For USA, Plaintiff (3:10-cr-08036-DGC-1): Heather H Sechrist, U.S. Attorneys Office - Tucson, AZ, Tucson, AZ; Roger W Dokken, U.S. Attorneys Office - Phoenix, AZ, Phoenix, AZ.
Report & Recommendation on Motion to Vacate, Set Aside or Correct Sentence
James F. Metcalf, United States Magistrate Judge.
I. MATTER UNDER CONSIDERATION
Movant, following his conviction in the United States District Court for the District of Arizona, filed on July 29, 2013 a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) and Memorandum in Support (Doc. 2). On March 19, 2014, Respondent filed its Response (Doc. 15). Movant filed a Reply on June 16, 2014 (Doc. 21). On September 29, 2014, Petitioner re-filed (Doc. 24) his Memorandum in Support of his Petition because of a defect in the electronically filed version.
The Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
In his Motion to Suppress, Movant described the factual background as follows:
This investigation began on November 5, 2008, when the Child Exploitation Section of the ICE (Immigration and Customs Enforcement) Cyber Crimes Center received information regarding a website containing child pornography, known as DreamZone. ICE agents verified that the website contained pornography and that the website could be accessed by " members" to the website for a monthly fee. ICE agents accessed this site for a monthly fee of $99.00 after an agent completed the transaction with an undercover identity and credit card. The undercover agent received a user name and password, accessed the website, and found child pornography within the site. ICE then obtained the web access logs from November 11, 2008, through November 20, 2008, and matched IP addresses with specific image files that were accessed from each IP address. Pursuant to this search warrant, ICE identified the e-mail ad
dress of richardrimrock@AOL.com (" Rimrock IP" ) as one of the IP addresses that accessed the DreamZone website on November 18, 2008. The logs further showed that on this date the Rimrock IP downloaded numerous images of child pornography from the website.
Pursuant to further subpoenas to AOL, ICE determined that, as of January 30, 2009, the account holder for the Rimrock IP was Richard Self at a P.O. Box in Rimrock, Arizona, and that the relevant phone number was assigned to Richard Self through a Verizon account that had been effective since April 15, 2008, with the same P.O. Box in Rimrock. In May of 2009, ICE reviewed the motor vehicle database for records of Richard Self and identified a residential address on Desert Pine Road in Rimrock, Arizona.
On November 15, 2009, ICE agents conducted surveillance at the Desert Pine address and observed a motor vehicle that was registered to Mr. Self at the Desert Pine address. In December of 2009, ICE obtained another subpoena for the AOL account holder information, and it was the same as the January 2009 information for Mr. Self.
Based on this information alone, the ICE agent avowed that he believed Richard Self spent money to purchase a membership to a website devoted to child pornography and thus that Mr. Self has a sexual interest in children. Further, the application for the search warrant states that the agent believes that Mr. Self accessed and downloaded child pornography on November 18, 2010, from the DreamZone website. Thus, the agent concluded there was probable cause to believe that there was child pornography at the residence.
The application for the search warrant also contains a boilerplate section regarding " common characteristics" of persons who collect child pornography. Among other things, the application states that " [t]hese collections [of child pornography] are often maintained for several years and are kept close by, usually at the collector's residence, to enable the individual to view the collection, which is valued highly."
The search warrant was executed at the residence on February 8, 2010. Defendant was not present at his residence during the execution of the warrant. Mr. Self's step-son, who lived next door and allowed the agents into the residence, told the agents that Mr. Self had left on February 6, 2010, with his wife on a business trip driving his company's semi-tractor/truck to Florida. At the residence, agents found computer generated printouts that contained photographs of child pornography. Also, agents found several hundred pages of print documents containing narratives describing sexual conduct with children. Agents also found documents indicating the purchase of a Verizon wireless mobile broadband device, but did not find the broadband device or a laptap computer. Agents did find two older-model tower computers that did not appear to contain any child pornography but did contain website advertising banners related to child pornography sites.
Based on the above information, another search warrant was obtained to search the semi-tractor/truck that Mr. Self was driving. This warrant was executed on February 18, 2010, pursuant to a traffic stop of the vehicle. Mr. Self and his wife were in the vehicle. During the search of the vehicle, the agents found two laptops, one of which it was later determined contained images of child pornography. The agents also found several thumb drives and other electronic material containing child pornography. An indictment was obtained
against Mr. Self for possession of child pornography, and he was arrested on March 14, 2009, pursuant to a traffic stop. The agents searched the vehicle and found electronic material that later was determined to contain documents that contained narratives describing sexual activity with children, similar to the documents obtained from Mr. Self's residence.
(CR-10-8036-PCT-DGC Doc. 47 at 3-6 (citations omitted).) (Documents filed in the criminal case, CR-10-8036-PCT-DGC, are referenced hereinafter as " CR Doc. ." )
B. PROCEEDINGS AT TRIAL
On March 9, 2010, Movant was indicted (CR Doc. 1) in the District of Arizona case CR-10-8036-PCT-DGC on four counts of Possession of Child Pornography, with forfeiture allegations. Counsel was appointed. (CR Doc. 5, M.E. 3/15/10.)
On September 21, 2010, a Superseding Indictment was filed (CR Doc. 35), charging Movant with 3 counts of Transportation of Child Pornography, 3 counts of Possession of Child Pornography, and forfeiture allegations.
Counsel filed a Motion to Suppress (CR Doc. 47) seeking to suppress evidence seized at Movant's home on January 27, 2010 for lack of probable cause to support the warrant, and evidence seized in the ensuing searches of his truck and car, as fruits of the poisonous tree. The motion was denied. (CR Doc. 69, Order 11/12/10.)
Movant proceeded to a jury trial on November 17, 2010. (CR Doc. 78, M.E. 11/17/10.) He was found guilty as charged. (CR Doc. 90, Verdict.)
Counsel moved for a downward depart and variances in sentencing. (CR Doc. 93.) The motion was denied, and on March 14, 2011 Movant was sentenced to concurrent terms of 135 months on the transportation charges, and concurrent terms of 120 months on the possession charges, for an effective sentence of 135 months. (CR Doc. 95, M.E. 3/14/11; CR Doc. 97, Judgment.)
C. PROCEEDINGS ON DIRECT APPEAL
Movant filed a direct appeal, appealing the denial of his motion to suppress on the basis that the lapse of time between the first lead and the search warrant was so long as to render the information stale and prevent a finding of probable cause. Movant also challenged his sentence. The Ninth Circuit Court of Appeals rejected his arguments, and affirmed the convictions and sentences. (CR Doc. 117, Memorandum Decision.)
D. PRESENT FEDERAL HABEAS PROCEEDINGS
Motion -- Movant commenced the current case by filing Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on July 29, 2013 (Doc. 1). Movant asserts the following eight grounds for relief:
(1) Movant's counsel was ineffective in failing to investigate the validity of three search warrants;
(2) Movant's counsel was ineffective in allowing Movant to be indicted, tried, and convicted in violation of Movant's right to be free from double jeopardy;
(3) Movant's counsel was ineffective for failing to challenge prosecutorial misconduct;
(4) Movant's counsel was ineffective for failing to object to irrelevant evidence of prior bad acts;
(5) Movant's counsel was ineffective when she failed to introduce evidence that others lived in Movant's household, had access to Movant's AOL account and use of the computer, and that of the five computers seized, " only one was dirty" ;
(6) Movant's counsel was ineffective because counsel refused to let the probation officer interview Movant, members of Movant's family, or any of Movant's friends;
(7) Movant's counsel was ineffective by failing to present evidence that someone else could have committed the crime; and
(8) The Court abused its discretion by failing to resolve the conflict between Movant and Movant's counsel and for not appointing new counsel.
(Doc. 4, Service Order.)
Response - On March 19, 2014, Respondent filed its Response (Doc. 15). Respondent argues that the first seven grounds, asserting ineffective assistance, are without merit. Respondent argues that Ground Eight is procedurally defaulted for failing to raise it on direct appeal.
Reply - Movant filed a Reply on June 16, 2014 (Doc. 21), addressing the merits of his ineffective assistance claims, and arguing that his Ground 8 is not procedurally defaulted.
Supplement -- Upon reviewing the filed record, the Court observed that the electronically filed version of Movant's Memorandum in Support (Doc. 2) had become partially unreadable, and no paper versions were available. Movant was directed to re-file his Memorandum in Support and attached exhibits. (Order 9/15/14, Doc. 23.) On September 29, 2014, Movant complied and again filed his Memorandum in Support and exhibits (Doc. 24).
III. APPLICATION OF LAW TO FACTS
A. GROUNDS 1-8: INEFFECTIVE ASSISTANCE CLAIMS
Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on such a claim, Petitioner must show: (1) deficient performance - counsel's representation fell below the objective standard for reasonableness; and (2) prejudice - there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88. Although the petitioner must prove both elements, a court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697.
1. Ground 1: Ineffective Assistance re Search Warrant
In his Ground 1, Movant asserts that counsel was ineffective in failing to adequately investigate the validity of the three search warrants. (Motion, Doc. 1 at 5; Memorandum, Doc. 2 at 1-4.) Movant asserts four specific defects in the searches and warrants, addressed hereinafter as subparts (a) through (d). Respondent argues that defense counsel adequately investigated, and filed a motion to suppress the evidence seized during the searches.
a. Ground 1(a): I.A.C. re No New Probable Cause to Search Home
Movant argues that trial counsel should have challenged the search of the home on the basis that there was no new probable cause asserted to support the second warrant to search the home which was issued
after the first warrant expired unserved. Respondent argues that the motion to suppress addressed the staleness and lack of probable cause to support the search of the home, and that no new statement of probable cause was required to support the warrant. Moreover, Respondent argues this issue was addressed by the Ninth Circuit in Movant's direct appeal. (Response, Doc. 15 at 16-17.) Movant replies that the second warrant amounted to an improper reissuance of the first warrant based upon a stale statement of probable cause. (Reply, Doc. 21 at 2-3.)
Respondent appears to conflate the staleness of the information in the probable cause statement used to support a warrant, with the staleness of the statement or affidavit itself. The former was addressed by the Ninth Circuit in Movant's direct appeal (and may not be revisited in this proceeding). (CR Doc. 117, Mem. Dec. at 4.) The latter is the argument Movant now makes.
In support of his contention that a new probable cause statement was required, Petitioner cites to U.S. v. Lacy, 119 F.3d 742 (9th Cir. 1997), U.S. v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006), and Sgro v. U.S., 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). Nothing in these cases suggests that a new affidavit must be submitted when an expired warrant is being reissued. These cases simply stand for the proposition that affidavits in support of warrant requests " must be based on facts " so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time." " U.S. v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997) (indirectly quoting Sgro, 287 U.S. at 210). At best, Sgro held that an expired warrant may not simply be reissued without a new finding of probable cause, based upon timely affidavits.
The issue of a second warrant is essentially a new proceeding which must have adequate support...The statute in terms requires him before issuing the warrant to take proof of probable cause. This he must do by examining on oath the complainant and his witness and requiring their affidavits or depositions. The proof supplied must have appropriate relation to the application for the new warrant and must speak as of the time of the issue of that warrant. The commissioner has no authority to rely on affidavits which have sole relation to a different time and have not been brought down to date or supplemented so that they can be deemed to disclose grounds existing when the new warrant is issued.
287 U.S. at 211. Thus, Sgro did not mandate new affidavits or statements, merely timely information.
Moreover, Sgro did not establish any time limit on when the affidavits have come to " have sole relation to a different time." In Lacy, the court observed that such a determination is a fact specific inquiry.
However, " [t]he mere lapse of substantial amounts of time is not controlling in a question of staleness." " We evaluate staleness in light of the particular facts of the case and the nature of the criminal activity and property sought." The information offered in support of the application for a search warrant is not
stale if " there is sufficient basis to believe, based on a continuing pattern or other good reasons, that the items to be seized are still on the premises."
Lacy, 119 F.3d at 745-46 (internal citations omitted). Of course, in this case, the question whether the information was stale has been decided by the Ninth Circuit on Movant's direct appeal.
Movant fails to establish new affidavits or statements of probable cause were mandatory, despite the freshness of the information contained in the original. The undersigned has found no such requirement.
Thus, the undersigned concludes that an attack based on the reliance on the same affidavits in issuing the second warrant would have been without merit. " The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel." Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982). Accordingly, Ground 1(a) is without merit.
b. Ground 1(b): I.A.C. re Warrant on Home Not Properly Served
Movant argues that trial counsel should have challenged the search of the home on the basis that the search warrant for the home was not properly served because the attachments and affidavit were not served, and the warrant was not served at the outset of the search on his son-in-law, the caretaker of the property. Respondent argues that presentation of the warrant is not required at the outset of the search, and that the affidavit or other supporting exhibits need not be presented at all. (Response, Doc. 15 at 17-18.) Respondent further argues that a warrant need not be served on a non-occupant caretaker when a residence is unoccupied at the time the warrant is executed, and that in any event copies were left at the home, and may have been shown to the son-in-law before entry was gained. ( Id. at 18, and n. 7.) Movant replies that it is unclear whether service of the warrant is required. (Reply, Doc. 21 at 3-4.)
In support of his argument that service of the warrant at the outset of the search is required, Movant relies upon U.S. v. Gantt, 194 F.3d 987 (9th Cir. 1999), U. S. v. Hector, 474 F.3d 1150, 1154 (9th Cir. 2009), and the separate opinion of Justices Souter, Stevens and Ginsburg in U.S. v. Grubbs, 547 U.S. 90, 99, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006). (Reply, Doc. 21 at 3-4.)
In Gantt, the Ninth Circuit held that Federal Rule of Criminal Procedure 41(d) (now at Fed. R. Crim. P. 41(f)) required that a search warrant be served at the outset of a search. 194 F.3d at 1001-1002. Seven years later, the majority opinion in Grubbs appeared to have rejected that holding:
In fact, however, neither the Fourth Amendment nor Federal Rule of Criminal Procedure 41 imposes such a requirement. " The absence of a constitutional requirement that the warrant be exhibited at the outset of the search, or indeed until the search has ended, is ... evidence that the requirement of particular description does not protect an interest in monitoring searches." The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the " deliberate, impartial judgment of a judicial officer ... between the citizen and the police," and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages.
Grubbs, 547 U.S. at 99.
Movant suggests that the special concurrence in Grubbs leaves the question open. And indeed, Justice Souter asserted that prior decisions of the Court left open the question whether there was a " right of an owner to demand to see a copy of the
warrant before making way for the police," " and it remains undetermined today." 547 U.S. at 101. Indeed, in U.S. v. Hector, the Ninth Circuit addressed the decision in Grubbs, and concluded: " It is not clear whether [ Grubbs ] overrules the Ninth Circuit's precedent on the requirement to present a copy of the warrant to the owner of the premises at the time of the search." 474 F.3d 1150, 1154 (9th Cir. 2007). But see U.S. v. Miller, 2013 WL 4805616, *5 (D.Ariz. 2013) (report and recommendation concluding that Grubbs overrules Gantt ) (issue avoided in Order modifying, 2013 WL 4026851, *3 (D.Ariz. 2013). At a minimum, the Ninth Circuit has recognized the Grubbs decision effectively reduces the " legitimate interest served by the presentation of a warrant" to be " head[ing] off breaches of the peace by dispelling any suspicion that the search is illegitimate." U.S. v. Hector, 474 F.3d 1150, 1155 (9th Cir. 2007). That interest is not affected when a search warrant is executed when the premises are vacant.
Movant also complains that the affidavit and other attachments were not included with the copy of the warrant eventually left at the premises. However, Rule 41 does not mandate the delivery of anything other than the warrant and a receipt for the property taken. There is no " constitutional mandate that an executing officer possess or exhibit the affidavit or any other document incorporated into the warrant at the time of the search in order for the warrant to be valid." U.S. v. Hurwitz, 459 F.3d 463, 472 (4th Cir. 2006). See also Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco and Firearms, 452 F.3d 433, 444 (6th Cir. 2006) (no constitutional requirement or requirement under Rule 41 to leave incorporated affidavits, etc.).
Even if there were some basis to assert an obligation to serve the warrant and/or the affidavits or attachments, a motion to suppress founded upon such a service requirement would have been futile for two reasons. First, even when applying Gantt, the Ninth Circuit has held that suppression for violations of Rule 41 are only appropriate where:
1) the violation rises to a " constitutional magnitude; " 2) the defendant was prejudiced, in the sense that the search would not have occurred or would not have been so abrasive if law enforcement had followed the Rule; or 3) officers acted in " intentional and deliberate disregard" of a provision in the Rule.
U.S. v. Williamson, 439 F.3d 1125, 1133 (9th Cir. 2006). Grubb establishes that there is no violation of a constitutional magnitude. Petitioner has not proffered any prejudice in the form of the search resulting from the failure to serve the warrant at the outset. And, there is no indication that the officers acted deliberately in disregard of the rule. See e.g. Williamson, 439 F.3d at 1133-1134 (failure to serve not deliberate violation, even though intentional, when based on misunderstanding of requirement).
Second, Movant was not present when the warrant was executed, and thus cannot complain of the lack of service of the warrant. " Just as a person who is somewhere else cannot benefit from the 'assurance provided by the showing of a warrant, an absent person has no present stake in the contemporaneous opportunity to monitor the search for compliance with the warrant. Thus the interest in the 'notice' that showing a warrant provides, likewise, does
not run to someone who is not there and who cannot exercise that option." U.S. v. Silva, 247 F.3d 1051, 1059 (9th Cir. 2001).
Accordingly, any attempt to mount challenges to the timing or lack of service of the warrant or its attachments, supporting affidavits, etc. would have been futile, and failure to do so would not have been ineffective assistance. Baumann, 692 F.2d at 572.
Therefore, Ground 1(b) is without merit.
c. Ground 1(c): I.A.C. re Warrant on Truck Not Properly Served
Movant argues that trial counsel should have challenged the search of the truck on the basis that the search warrant for the truck was not properly served because the attachments and affidavit were not served, and the serving agent refused to provide a copy of the warrant at the outset of the search.
As discussed hereinabove, with regard to the execution of the warrant on Movant's home (with the exception of the distinction that Movant was present when the vehicle was searched), any argument based upon the timing or lack of delivery of the warrant to search the truck would be without merit. The fact of Movant's presence would give him standing to mount the objection, but even if Gantt survives Grubbs, Movant fails to establish a constitutional violation (and cannot under Grubbs ), asserts no prejudice, and fails to proffer anything to establish a deliberate violation of the Rule. Accordingly, this claim would also be without merit, and cannot support a claim of ineffective assistance. Baumann, 692 F.2d at 572.
Therefore, Ground 1(c) is without merit.
d. Ground 1(d): I.A.C. re Improper Search and Seizure of Movant and Wife
Movant argues that trial counsel should have challenged the search of his truck on the basis that Movant and his wife were searched, his effects were seized, and they were locked in a law enforcement vehicle during the search of his vehicle, all without Miranda warnings, even though the warrant did not extend to them or their effects. Respondent argues that the detention of occupants during a search is permitted, and no Miranda warnings are required. Respondent argues there is no evidence that Movant was searched, he cannot complain of the search of his wife, and no evidence from such searches was presented at trial, precluding a finding of prejudice. (Response, Doc. 15 at 18-19.) Movant replies that the authorities relied on by Respondent with regard to the detention and ensuing search are distinguishable on the basis that the warrants were for evidence, not contraband, and that the searches of Petitioner's effects did not occur until the conclusion of the search of the vehicle. (Reply, Doc. 21 at 4-6.)
Movant's Wife - Movant has no standing to complain about the detention and search of his wife. " Fourth Amendment rights are personal rights which...may not be vicariously asserted...No rights of the victim of an illegal search are at stake when the evidence is offered against some other party." Alderman v. U.S., 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Consequently, any challenges by counsel on this point would have been without merit.
Detention - Movant attempts to distinguish cases relied upon by Respondents, e.g. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), to justify detention during a search. He does so on the basis that the cases cited deal with searches for contraband, while the search of Movant was simply for evidence.
In a footnote, the Summers Court indicated they did " not decide whether the same result would be justified if the search warrant merely authorized a search for
evidence." 452 U.S. at 705, n. 20. In Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), however, the Court applied Summers where the search was for " deadly weapons and evidence of gang membership." Id. at 94-95. Moreover, this contraband/evidence distinction was explicitly rejected by the Ninth Circuit in Dawson v. City of Seattle, 435 F.3d 1054 (2006). " Thus, the doctrine of Michigan v. Summers, permitting police officers to detain individuals during a search, and the principle of Muehler, holding that the authority to detain incident to search is categorical, apply to all searches upon probable cause, not just to searches for contraband." Dawson, 435 F.3d at 1066.
Even assuming that this remained a significant distinction, Movant's factual premise is flawed. Here, the warrant to search the vehicle included not only evidentiary types of things (correspondence, records, etc.), but " images of child pornography and files containing images of child pornography." (CR Doc. 47, Mot. to Supp. at Exhibit B, Warrant, at Attachment B, at 56.) Such images would be contraband the same as the narcotics being searched for in Summers.
Accordingly, any challenge based upon the detention would have been without merit.
Miranda Warnings - Movant complains that he was not given Miranda warnings. Respondent properly argues that Miranda only applies to " custodial interrogation", but makes the logical jump that Movant's Summers detention during the search did not require the warnings. (Response, Doc. 15 at 19.) However, in U.S. v. Kim, 292 F.3d 969 (9th Cir. 2002) the court explicitly rejected an argument by the government that the principles of Summer " support the conclusion that police officers executing a search warrant ...