United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION
JOHN C. NIVISON, Magistrate Judge.
In this action, Petitioner Thomas King moves, pursuant to 28 U.S.C. §2255, to vacate, set aside or correct his sentence. (Motion, ECF Nos. 123, 123-1.) Petitioner pled guilty to the possession of a computer that contained child pornography, which Petitioner had produced by surreptitiously videotaping his 12-year old step-daughter in a family bathroom. (Judgment, ECF No. 102; Prosecution Version, ECF No. 22 at 2-3.) See 18 U.S.C. § 2252A(a)(5)(B), (b)(2).
The Court sentenced Petitioner to a prison term of 72 months, followed by five years of supervised release. ( Id. ) At sentencing, because the Court found that Petitioner had falsely denied relevant conduct, namely, that he had possessed CDs containing child pornography in addition to the pornography that was the subject of the charge, the Court denied Petitioner a reduction in the offense level for acceptance of responsibility, pursuant to U.S.S.G. §3 E1.1. Petitioner appealed from the sentence, and argued that the sentence was substantively unreasonable; the First Circuit affirmed the sentence. United States v. King, 741 F.3d 305 (1st Cir. 2014).
In Petitioner's section 2255 motion, he claims ineffective assistance of counsel, citing counsel's failure to argue at sentencing that the child pornography on the CDs was not relevant conduct for purposes of determining whether Petitioner had accepted responsibility for the offense for which he was convicted. The Government moved for summary dismissal of the motion. (Response, ECF No. 133.)
After a review of Petitioner's motion and the Government's request for dismissal, the recommendation is that the Court grant the Government's request and dismiss Petitioner's motion.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner was indicted in July 2011 on a single count for the possession of a computer that contained child pornography. (Indictment, ECF No. 1.) The following facts are from the prosecution version, which Petitioner admitted in his plea hearing was true. (Plea Tr., ECF No. 114 at 19.)
In approximately January 2009, Petitioner's then wife found a box for a clock that contained a hidden camera, and she confirmed that the clock was located on a window sill in a bathroom generally used by Petitioner's step-daughter and Petitioner's children in the home of Petitioner and his then wife. (Prosecution Version at 1-2.) Petitioner initially admitted to her that he had purchased the clock camera and placed it in the bathroom, but he denied that he activated it. ( Id. )
On January 25, 2011, a detective with the Maine State Police Computer Crimes Unit interviewed Petitioner at his home in Ellsworth, Maine. ( Id. at 1.) During that interview, Petitioner admitted that in approximately January 2009, he purchased the clock camera and placed it in the bathroom generally used by his step-daughter, but he denied that he activated it. ( Id. at 1-2.) He gave permission to a detective to take his desktop and laptop computers for forensic review. ( Id. at 2.) A forensic analyst found in the allocated, or undeleted, portion of the hard drive of the desktop computer still images and two videos of a child later confirmed to be Petitioner's step-daughter. ( Id. ) The camera angle on the video was consistent with a window sill placement of the clock camera. ( Id. ) The forensic analyst also found that one of the two videos on the desktop was also on the hard drive of the laptop computer. ( Id. )
In an interview on January 26, 2011, Petitioner confessed that he had purchased the clock camera, placed it in the bathroom that the step-daughter used, downloaded the clock camera software to his desktop computer, and downloaded the images taken by the clock camera to his desktop computer. ( Id. at 2-3.) Petitioner admitted that he had viewed the videos of the child and that he had masturbated while watching the videos. ( Id. at 3.) Petitioner was indicted and arrested in July 2011. (Indictment, ECF No. 1; Arrest Warrant Return, ECF No. 8.)
At a change of plea hearing in October 2011, the Court found that Petitioner entered his guilty plea knowingly and voluntarily. The Court thus accepted the guilty plea. (Plea Tr. at 22-23.)
Petitioner argued in his sentencing memorandum, filed in February 2012, that the sentencing guidelines overstated the seriousness of the offense because the offense did not involve trafficking or trading of images, and because the images did not portray a sex offense against the victim. (Petitioner's Sentencing Memorandum, ECF No. 55 at 3-5.) Petitioner maintained that the offense, although reprehensible, was more in the nature of an invasion of privacy, in which the harm is embarrassment and betrayal, and not a sexual act upon a child. ( Id. at 8.) Petitioner argued against the enhancements discussed in the revised presentence investigation report, including the enhancement of two levels for the use of a computer, pursuant to U.S.S.G. § 2G2.2(b)(6); five levels for a pattern of activity involving sexual abuse or exploitation of a minor, pursuant to section 2G2.2(b)(5); and three levels for the number of images, pursuant to section 2G2.2(b)(7)(B). ( Id. at 5-8.) In support of his argument, on two occasions, Petitioner asserted in his sentencing memorandum that he had no other collection of child pornography. ( Id. at 5, 8.)
The Government maintained that a reduction for acceptance of responsibility should not apply given Petitioner's "continued minimization of both the egregiousness of his crime and the trauma he has caused this victim." (Government's Sentencing Memorandum, ECF No. 59 at 1, 5-8.) The Government argued in favor of each of the enhancements ( Id. at 3-5.), and recommended a sentence at the high end of the guidelines range. ( Id. at 1.)
The Probation Office submitted a second revised presentence investigation report in July 2012, i.e., several months after the parties' sentencing memoranda were filed. The report states: "Due to the discovery of additional materials after the disclosure of the presentence report, the report was revised to include the information contained in paragraph 10A. The Probation Office wishes to preserve a possible objection to this information by the defendant." Paragraph 10A of the report states that in May 2012, the Maine State Police Computer Crime Lab analyzed twenty-two CDs that Petitioner's then wife discovered in the home that she had previously shared with Petitioner. According to the report, the forensic analyst found that the CDs contained multiple images of child pornography. Despite the discovery of the images on the CDs, the Probation Office discussed a three-point reduction for Petitioner's acceptance of responsibility.
Petitioner's sentencing hearing was held in August 2012. (Sentencing Tr., ECF No. 116 at 1.) At the hearing, Petitioner did not object to the second revised presentence investigation report. ( Id. at 5-6.) The Court noted that the Government had provided images from CDs found in the garage of Petitioner's former home; some of the images were not pornographic, some consisted of adult pornography, and 16 of the images consisted of child pornography. ( Id. at 12-13.) Petitioner did not object to the introduction under seal of four CDs containing the child pornography. ( Id. at 13.)
At the sentencing hearing, Petitioner testified that in 2004 and/or 2005, he downloaded child pornography from the Internet, as he was collecting adult pornography from the Internet and gathering various non-pornographic images from other sources, which images included family photographs. ( Id. at 19-27.) Petitioner acknowledged the following: that he had amassed the collection of pornography by obtaining photos from various profiles of persons who posted pictures, that he downloaded the photos in groups, that he placed them in the "my pictures" folder of his desktop hard drive, and that he burned the images onto CDs. ( Id. at 19-26.) He testified that he did not review the pornography on the CDs because he was "finding more on the Internet." ( Id. at 20-22.) On cross-examination, Petitioner testified that he downloaded Internet-derived images "numerous" times, and that he was not aware that approximately twenty of the images on the CDs were of the same child. ( Id. at 23-24.) Counsel represented, and the Government did not object to the representation, that the child pornography comprised somewhat less than two percent of the images on the CDs. ( Id. at 21.) In argument, counsel characterized Petitioner's testimony as follows: "[W]hat [Petitioner] has said here is he didn't knowingly download it." ( Id. at 48.)
Petitioner's computer technician and forensics expert, who reviewed the CDs, explained that downloading files from the Internet onto the computer is an action distinct from and unrelated to burning the files from the computer onto a CD. ( Id. at 39.) He also testified that depending on the Petitioner's computer settings, it would have been possible to download groups of photographs that Petitioner found on the Internet without looking at the content of the photos. ( Id. at 31-33.) He testified that unless the computer settings had been changed, the photographs would have been stored in the "my pictures" section of the hard drive; the expert did not know whether Petitioner's computer settings were set to the default setting. ( Id. at 31, 38; 43-44.) Petitioner's expert further testified that the question of whether certain images had been downloaded individually could be determined with a more thorough investigation. ( Id. at 37-38, 44.)
The Court calculated the sentence contemplated by the advisory guidelines as follows: the base offense level of 18, under U.S.S.G. § 2G2.2(a)(1), to which three enhancements were added: two levels for use of a computer, under section 2G2.2(b)(6); five levels for a pattern of abuse or exploitation, under section 2G2.2(b)(5); and three levels because the offense involved at least 150 images but fewer than 300 images, under section 2G2.2(b)(7)(B). ( Id. at 56.)
In considering whether to apply a reduction in the offense level for Petitioner's acceptance of responsibility, the Court discussed Petitioner's collection of child pornography downloaded from the Internet. ( Id. at 16-17.) The Court noted:
I realize his position is that he did not intentionally collect the child pornography - -but if I come to the conclusion that that is inaccurate, that the government hasd proven it more likely than not that he did, in fact, collect the child pornography, then he has, it seems to me, falsely denied relevant conduct.
( Id. ) Counsel responded: "I'm aware of that, Your Honor." ( Id. at 17.) Counsel argued that Petitioner was unaware that he was downloading child pornography. ( Id. at 46-48.)
For several reasons, the Court found it "more likely than not the defendant knew that there were images of child pornography on the CDs that he burned, " and, therefore, the Court declined to apply a three-level reduction for acceptance of responsibility. ( Id. at 53-56.) The Court found that (1) there was a significant amount of non-pornographic content on the CD. girls about the same age as the victim of Petitioner's videotaping; (2) there were no images of babies, infants, or very young children, thereby reflecting that Petitioner intentionally downloaded images of girls around the victim's age; (3) Petitioner created four CDs, all of which contained child pornography, and Petitioner likely was not mistaken on four occasions; and (4) one burns a CD to refer to it in the future, and, therefore, Petitioner likely ...