MATTHEW G. CLARK, Movant,
UNITED STATES OF AMERICA, Respondent
Defendant MATTHEW G CLARK represented by MATTHEW G CLARK, THEODORE GRISWOLD FLETCHER.
Plaintiff USA represented by MARGARET D. MCGAUGHEY, CRAIG M. WOLFF, RICHARD W. MURPHY
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION
John C. Nivison U.S. Magistrate Judge
Petitioner Matthew G. Clark filed, pursuant to 28 U.S.C. § 2255, a motion to vacate, set aside or correct his sentence following his conviction of possession of child pornography. (ECF No. 111.) Petitioner was convicted, following a bench trial, of two counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5) and (b)(2). The Court sentenced Petitioner to 210 months of imprisonment, which sentence was at the low end of the applicable sentencing guidelines range. On appeal, the First Circuit upheld the conviction and sentence. United States v. Clark, 685 F.3d 72 (1st Cir. 2012). In Petitioner’s section 2255 motion, he asserts eleven numbered grounds. Petitioner’s motion is focused in part on two successive searches of a house that he shared with his mother, Fern Clark, who was eventually convicted in state court of fifteen counts of cruelty to animals. Id. at 74 n.2. The government has requested a summary dismissal. The recommendation is that relief be denied and Petitioner’s motion be dismissed without a hearing.
I. Factual and Procedural Background
Petitioner was indicted in April 2010 for possession of child pornography that was alleged to have occurred on January 19, 2008. (ECF No. 1.) In Count I of the indictment, the government alleged possession of videotape, and in Count II, the government alleged possession of a computer. According to the government, both devices contained images of child pornography that had been transported in interstate commerce and that had been produced using materials that had been transported in interstate commerce. Law enforcement obtained the items during two searches at Petitioner’s home.
In July 2010, Petitioner moved to suppress the evidence that had been found in the first and second searches. (ECF No. 23.) Both searches occurred at Petitioner’s home in Somerville, Maine, on the same day in January 2008. Clark, 685 F.3d at 74 & n.1. The first was executed pursuant to a warrant to search the home of Petitioner and his mother (Fern Clark) for evidence of the crime of animal cruelty and of a civil violation for the operation of an unlicensed breeding kennel. Id. at 74. The warrant was based on a state veterinarian’s affidavit that was later reviewed on appeal by the First Circuit, which upheld the District Court’s determination that the affidavit established probable cause to justify the issuance of the warrant. Clark, 685 F.3d at 75-79. The Maine Supreme Judicial Court, in Fern Clark’s appeal of her state conviction, also concluded that the veterinarian’s affidavit established probable cause. State of Maine v. Clark, Mem-10-68 (Me. May 18, 2010). (ECF No. 30-7.)
In conducting the first search, members of the search team found a notepad near a computer work station in Petitioner’s room. The notepad contained a handwritten list of web sites suggestive of child pornography. Clark, 685 F.3d at 74. They also found photographs of nude underage males. Id. They halted the search and sought an additional warrant authorizing a search for child pornography. Id. After obtaining the warrant, law enforcement seized the evidence that formed the basis for the indictment of Petitioner. Id.
Petitioner filed a motion to suppress the evidence found in the search, arguing that: (1) his living quarters were separate from his mother’s, and probable cause was lacking because there was no evidence of animal cruelty or neglect in his living quarters and no evidence that he had either sold animals or participated in his mother’s breeding kennel; (2) the photographs and lists of web sites were not in plain view during the search for paperwork related to unlicensed kennel operations; (3) the second warrant was derived from the illegal first warrant; and (4) probable cause was lacking to search for evidence of animal cruelty or an unlicensed breeding kennel. (ECF No. 23.)
The magistrate judge held an evidentiary hearing and recommended denial of the motion to suppress. (ECF Nos. 46, 52.) United States v. Clark, 2010 WL 4365562, 2010 U.S. Dist. Lexis 115048 (D. Me. Oct. 27, 2010) (recommended decision). The Court affirmed the recommended decision. (ECF No. 60.) The Court found that “the defendant’s bedroom was not, as a matter of law, a separate dwelling within the Clark residence and that searchers acquired no information, before or during the execution” of the first warrant that would have put them on notice that it was a separate dwelling. (Recommended Decision at 24-25.) 2010 WL 4365562, at *15, 2010 U.S. Dist. Lexis 115048, at *43. The Court also found that the web site list and photographs of child pornography that the search team found among other papers were in plain view, given that the warrant permitted a search of paperwork for evidence of kennel operations. (Recommended Decision at 27-28.) 2010 WL 4365562, at *17, 2010 U.S. Dist. Lexis 115048, at *48-49.
After the Court denied the motion to suppress, Petitioner waived his right to a jury trial during a hearing before the Court. (ECF No. 63, 64, 102.) The Court granted Petitioner’s motion in limine to exclude evidence of his four prior criminal convictions as part of the government’s case-in-chief (Motion, ECF No. 68; Order, ECF No. 72), and the Court denied a motion in limine to exclude evidence of the list of web sites. (Motion, ECF No. 69; Order, ECF No. 73.) After a four-day bench trial in January 2011 (ECF Nos. 97-100), the Court found Petitioner guilty on both counts of the indictment. (ECF No. 86.) At Petitioner’s request, the Court issued findings of fact pursuant to Fed. R. Civ. P. 23. (ECF No. 87.) United States v. Clark, 762 F. Supp. 2d 203');"> 762 F. Supp. 2d 203 (D. Me. 2011) (findings of fact). The Court then sentenced Petitioner to a term of imprisonment of 210 months on Count I and 210 months on Count II, to be served concurrently, followed by a life term of supervised release on each of the counts, to be served concurrently. (ECF No. 93.)
Petitioner filed a notice of appeal from his conviction and sentence. (ECF No. 94.) The First Circuit affirmed both the judgment and the sentence, and issued its mandate on August 7, 2012. (ECF Nos. 106-08.) Petitioner did not file a petition for a writ of certiorari. In accordance with 28 U.S.C. § 2255, Petitioner subsequently filed this motion to vacate his sentence, in which motion Petitioner alleged numerous grounds, including ineffective assistance of counsel. The government does not dispute that Petitioner’s section 2255 motion was filed timely.
A. Standard of Review
Pursuant to 28 U.S.C. § 2255(a), a prisoner in custody under a federal sentence may move to vacate his sentence on four different grounds: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States”; (2) “that the court was without jurisdiction” to impose its sentence; (3) “that the sentence was in excess of the maximum authorized by law”; or (4) that the sentence “is otherwise subject to collateral attack.” Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994) (quoting section 2255). Although the fourth category is “rather general,” it is only implicated “if the claimed error is ‘a fundamental defect which inherently results in a complete miscarriage of justice’ or ‘an omission inconsistent with the rudimentary demands of fair procedure.’” Id. (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). The burden is on the section 2255 movant to make out a case for section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998).
A habeas petition is not a substitute for an appeal. Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002). “Accordingly, a defendant’s failure to raise a claim in a timely manner at trial or on appeal constitutes a procedural default that bars collateral review, unless the defendant can demonstrate cause for the failure and prejudice or actual innocence.” Id. An allegation of ineffective assistance of counsel can excuse a procedural default, but only if the movant shows that counsel’s representation fell below an objective standard of reasonableness and prejudiced the movant’s defense. Owens v. United States, 483 F.3d 48, 63 (1st Cir. 2007). Procedural default is an affirmative defense. Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010).
To succeed on an ineffective assistance of counsel claim, a petitioner “must establish both that counsel’s representation fell below an objective standard of reasonableness and that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)). The two prongs of the ineffective assistance test are commonly referred to as the “cause” and “actual prejudice” tests. Bucci v. United States, 662 F.3d 18, 29 (1st Cir. 2011). A district court reviewing such claims need not address both prongs of the test because a failure to meet either prong will undermine the claim. Strickland, 466 U.S. at 697.
As for the “cause” test, the court must be “fairly tolerant” of counsel’s performance because the Constitution does not guarantee a perfect defense. Moreno-Espada v. United States, 666 F.3d 60, 65 (1st Cir. 2012) (quoting Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994)). The issue is whether counsel’s performance was “‘within the wide range of reasonable professional assistance’ that a competent criminal defense counsel could provide under ‘prevailing professional norms.’” Bucci, 662 F.3d at 30 (quoting Strickland, 446 U.S. at 688-89). “Judicial scrutiny of the defense counsel’s performance is ‘highly deferential,’ and the defendant must overcome a ‘strong presumption . . . that, under the circumstances, the challenged action might be considered sound trial strategy.’” Id. (quoting Strickland, 446 U.S. at 689).
The “actual prejudice” test requires a showing “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The court must consider “the totality of the evidence before the judge or jury” when measuring the prejudicial effect. Stephens v. Hall, 294 F.3d 210, 218 (1st Cir. 2002). Factors that are commonly considered include the strength of the prosecution’s case, the effectiveness of the defense presented at trial, and the potential for new evidence and new avenues for cross-examination to undermine the credibility of government witnesses. Turner, 699 F.3d at 584. In determining whether an evidentiary hearing is required, the court must “take as true the sworn allegations of fact set forth in the petition ‘unless those allegations are merely conclusory, contradicted by the record, or inherently incredible.’” Owens, 483 F.3d at 56 (quoting Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002)). Summary dismissal of a motion is permitted when the allegations are “‘vague, conclusory, or palpably incredible,’” even “‘if the record does not conclusively and expressly belie [the] claim.’” David, 134 F.3d at 478 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). It is appropriate to expect the petitioner to supply the court with salient details of his claim prior to permitting discovery or a hearing. Id. (holding that “the district court did not abuse its discretion in refusing to license a fishing expedition”).
B. Grounds Asserted and Analysis
1. Ground One: Claim of Lack of Sufficient Nexus to Interstate Commerce
Petitioner argues that relief is warranted because the government could not as a matter of law satisfy the interstate commerce element of the charges. First, Petitioner contends that the statute of limitations regarding the computer-related charges involving interstate commerce expired because his computer was manufactured in the early 1990s. Second, he asserts that the government did not prove how the computer and tapes came into his possession through interstate commerce. Third, he asserts the Court expressed uncertainty about its finding of interstate commerce. The government contends that this claim is ...