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Hoover v. United States

United States District Court, D. Maine

December 21, 2016



          John C. Nivison U.S. Magistrate Judge.

         In this action, Petitioner Wade Robert Hoover moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 65; Attachments, ECF Nos. 65-1 to 65-12.) Following a guilty plea, Petitioner was convicted of sexual exploitation of two minors to create a visual depiction of the conduct, and possession of child pornography. (Judgment, ECF No. 38 at 1.) The Court sentenced Petitioner to 480 months in prison. (Id. at 2.) Petitioner appealed from the sentence, and the First Circuit affirmed. United States v. Hoover, No. 13-1886 (1st Cir. June 25, 2014). The Supreme Court denied Petitioner's petition for a writ of certiorari. Hoover v. United States, 135 S.Ct. 299 (2014).

         Petitioner asserts the following grounds, each of which appears to include a related allegation of ineffective assistance of counsel: (1) federal jurisdiction is lacking; (2) Petitioner's initial detention on state charges violated his federal statutory and constitutional pre-trial rights; (3) the Government pursued the charges knowing they were based on false information; (4) Petitioner did not knowingly and intelligently waive indictment or plead guilty; (5) the sentence was based on an unreasonable determination of the facts; (6) the sentencing judge was biased against Petitioner because the victims were male children; (7) the Court erred in finding that a victim of the possession crime met the causation requirement for a grant of restitution; and (8) the cumulative errors violated due process and resulted in a fundamental miscarriage of justice.

         The Government filed a response, through which response the Government moved for summary dismissal. (Response, ECF No. 85 at 1.) Petitioner subsequently filed a reply in opposition to the request for dismissal. (Reply, ECF No. 91 at 1.)

         Following a review of Petitioner's motion and reply, the Government's request for dismissal, and the record, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.

         I. Factual Background and Procedural History

         The following is a summary of the Government's version of the offense, which version Petitioner told the Court at his plea hearing was true to the best of his knowledge. (Prosecution Version, ECF No. 23; Transcript of Initial Appearance, Waiver of Indictment, Arraignment, and Guilty Plea (“Plea Tr.”), ECF No. 47 at 19.)

         Law enforcement, while monitoring a peer-to-peer network in August and September 2012, identified known child pornography videos associated with a computer at an internet protocol address that law enforcement tracked to Petitioner's then employer, an organization with an office in Augusta, Maine. (Prosecution Version at 1.) Law enforcement visited the location on October 3, 2012. (Id.) A personal laptop computer in Petitioner's office had an assigned internal internet protocol address that matched the one identified by law enforcement. (Id.) Petitioner was excused from a meeting, and, after law enforcement explained to him that he was not under arrest and not obligated to answer questions, Petitioner admitted that he had logged onto a peer-to-peer network and downloaded child pornography to his personal laptop computer while at work. (Id. at 1-2.)

         Petitioner consented to a preview of his laptop computer; officers used a mobile forensic laboratory at the scene, and they found twelve still images and one video depicting a young boy's genitals and a man sexually abusing the boy. (Id. at 2.) The officers spoke again with Petitioner; the interview and a subsequent investigation revealed that Petitioner had sexually abused a male minor in April 2012. (Id.) Petitioner photographed the abuse with an Olympus digital camera and stored the pictures on a laptop hard drive. (Id.) Two external hard drives also seized from Petitioner on October 3, 2012, and searched pursuant to warrants, contained images and movies, which Petitioner made, that depicted him sexually abusing a different male minor on various occasions from 2008 to 2011. (Id. at 2-3.)

         The computer and external hard drives also contained other images, not made by Petitioner, that depicted minors engaged in sexually explicit conduct. (Id. at 3.) The images included videos that law enforcement had identified through the peer-to-peer network monitoring conducted in August and September 2012. The camera, computer, and external hard drives were manufactured outside Maine. (Id.)

         According to the presentence investigation report, which Petitioner told the Court at sentencing was accurate, the State of Maine arrested Petitioner on October 3, 2012, and charged him in Kennebec County with possession of sexually explicit material depicting a minor, and the State charged him on April 2, 2013, in Somerset County with gross sexual assault. (Sentencing Tr., ECF No. 48 at 3-4.)

         On October 5, 2012, law enforcement filed a one-count criminal complaint in this Court, charging Petitioner with sexual exploitation, pursuant to 18 U.S.C. § 2251(a), (c). (Complaint, ECF Nos. 1, 7 (redacted version) at 1.) According to the presentence investigation report, the State dismissed the charge of possession of sexually explicit material on December 7, 2012, in lieu of the federal prosecution. On December 10, 2012, Petitioner waived a preliminary hearing on the federal charge, and the Court ordered Petitioner detained pending trial. (Waiver, ECF No. 14; Order, ECF No. 15.)

         On February 5, 2013, Petitioner was charged, by a two-count information, with sexual exploitation of two minor children, 18 U.S.C. § 2251(a), (e), and with possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B). (Information, ECF No. 19.) At a hearing in February 2013, Petitioner waived indictment, and, following a plea hearing conducted pursuant to Fed. R. Crim. P. 11, he pled guilty to both counts. (Plea Tr. at 9, 24.)

         At the sentencing hearing, held in July 2013, the Court made the following sentencing guidelines calculations: As to one of the victims (Male Minor Child “A”), the base offense level was 32, pursuant to U.S.S.G. § 2G2.1(a), to which level the following were added: four levels because the victim was younger than twelve years, pursuant to U.S.S.G. § 2G2.1(b)(1)(A); two levels because Petitioner subjected the victim to anal sex, pursuant to U.S.S.G. § 2G2.1(b)(2)(A); four levels because Petitioner produced videos in which he anally penetrated the victim with his penis, pursuant to U.S.S.G. § 2G2.1(b)(4); and two levels because the minor victim spent the night at Petitioner's house and elsewhere and was in his care and custody, pursuant to U.S.S.G. § 2G2.1(b)(5). (Sentencing Tr. at 38-39.) The resulting adjusted offense level was 44. (Id. at 39.)

         As to the other victim (Male Minor Child “B”), the calculations were the same, but the four-level enhancement for the victim, pursuant to U.S.S.G. § 2G2.1(b)(4), was based on the Court's finding that Petitioner penetrated the victim anally with Petitioner's penis and fingers, and with two unidentified objects. (Id.) The resulting adjusted offense level was 44. (Id. at 39.)

         As to the possession of child pornography count, the base offense level was 18, pursuant to U.S.S.G. § 2G2.2(a)(1), to which level the following were added: two levels because the victims were prepubescent minors, pursuant to U.S.S.G. § 2G2.2(b)(2); two levels because Petitioner distributed the pornography, pursuant to U.S.S.G. § 2G2.2(b)(3)(F); four levels because Petitioner possessed images of child pornography that portrayed sadistic or masochistic conduct, or other depictions of violence, pursuant to U.S.S.G. § 2G2.2(b)(4); five levels because Petitioner engaged in a pattern of activity involving sexual abuse or exploitation of a minor, pursuant to U.S.S.G. § 2G2.2(b)(5); two levels because Petitioner used a computer, pursuant to U.S.S.G. § 2G2.2(b)(6); and five levels because Petitioner possessed 600 or more images, pursuant to U.S.S.G. § 2G2.2(b)(7). (Id. at 40.) The resulting adjusted offense level was 38. (Id.)

         The Court determined that the multiple count adjustment raised the offense level by three to 47, pursuant to U.S.S.G. § 3D1.4, and the Court raised the level by five to 52, pursuant to U.S.S.G. § 4B1.5(b)(1). (Id. at 40-41.) The Court reduced the offense level by three to 49 because Petitioner accepted responsibility, pursuant to U.S.S.G. § 3E1.1. (Id. at 41.) The Court then concluded that the total offense level was 43 rather than 49, because 43 is the highest offense level recognized in the sentencing guidelines table. (Id.)

         The Court determined that Petitioner's criminal history placed him in Category I, which, combined with a total offense level of 43, yielded an applicable sentencing guidelines range of life. (Id.) The Court concluded that the statutory maximum applied because it was less than the guidelines range, and, therefore, the guidelines range was determined to be 480 months of incarceration. (Id.) The guidelines range for supervised release was five years to life. (Id.) The Court noted Petitioner's objections to the presentence investigation report; Petitioner objected to the four-level increase for sadistic behavior, and to the cross-reference set forth in U.S.S.G. § 2G2.2(c).[1] (Id. at 41-42; Petitioner's Sentencing Memorandum, ECF No. 29 at 4-8.)

         The Court then considered the sentencing factors, particularly the history and characteristics of Petitioner, the nature and circumstances of the offense, and the need to protect the public, pursuant to 18 U.S.C. § 3553(a). (Sentencing Tr. at 42.) Ultimately, the Court sentenced Petitioner to 360 months on Count 1 and to 120 months on Count 2, to be served consecutively, for a total term of 480 months of imprisonment. (Id. at 51.) The Court imposed a life term of supervised release. (Id.)

         Petitioner appealed from the sentence on grounds that it was unreasonable and an abuse of discretion. (Petitioner's Appellate Brief at 5.) The First Circuit concluded that the Court's “sentencing determination was procedurally and substantively sound and that the district court did not abuse its discretion.” Hoover, No. 13-1886 (1st Cir. June 25, 2014).

         In July 2014, Petitioner moved to dismiss the waiver of indictment. (Motion, ECF No. 53.) The Court dismissed the motion without prejudice. (Order, ECF No. 58.)

         The Supreme Court denied certiorari on October 6, 2014. Hoover, 135 S.Ct. 299. The section 2255 motion was filed timely on September 29, 2015.[2]

         II. Discussion

         A. Legal Standards

         A person may move to vacate his or her sentence on one of 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.” 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).

         The burden is on the section 2255 petitioner to establish by a preponderance of the evidence that he or she is entitled to section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978). When “a petition for federal habeas relief is presented to the judge who presided at the petitioner's trial, the judge is at liberty to employ the knowledge gleaned during previous proceedings and make findings based thereon without convening an additional hearing.” United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).

         A collateral challenge is not a substitute for an appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002). “[I]ssues disposed of in a prior appeal will not be reviewed again by way of a 28 U.S.C. § 2255 motion.” Singleton v. United States, 26 F.3d 233, 240 (1st Cir. 1994) (quotation marks omitted).

         “[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.” Berthoff, 308 F.3d at 127-28. Procedural default is an affirmative defense. Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010). The First Circuit has recognized that “federal courts have the authority to consider procedural default sua sponte.Rosenthal v. O'Brien, 713 F.3d 676, 683 (1st Cir. 2013) (citing Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997)); see also Daniels v. United States, 532 U.S. 374, 382-83 (2001) (recognizing that “procedural default rules developed in the habeas corpus context apply in § 2255 cases”) (citing Frady, 456 U.S. at 167-68).

         An allegation of ineffective assistance of counsel can excuse a procedural default, but only if the petitioner demonstrates both that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced the petitioner's defense. Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)); Owens v. United States, 483 F.3d 48, 63 (1st Cir. 2007). That counsel's strategy may have proven unsuccessful does not in itself render counsel's performance deficient. Strickland, 466 U.S. at 699. A district court reviewing a claim of ineffective assistance of counsel 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. If a petitioner's “claims fail on the merits, his related claims that counsel rendered ineffective assistance in failing to press the claims at trial or on appeal must also fail.” Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002) (per curiam).

         “Evidentiary hearings on § 2255 petitions are the exception, not the norm, and there is a heavy burden on the petitioner to demonstrate that an evidentiary hearing is warranted. An evidentiary hearing ‘is not necessary when a [§] 2255 petition (1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.'” Moreno-Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003) (citation omitted) (quoting DiCarlo, 575 F.2d at 954 (quotation marks omitted)). 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 57 (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)). The Court can reasonably require a petitioner to supply the Court with salient details of the 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. Claims and Analysis

         1. Claim that jurisdiction is lacking as to Count 1

         Petitioner argues that because the Government did not prove that he sent across state lines the pornographic material he produced, the Government failed to prove the jurisdictional element of interstate commerce set forth in 18 U.S.C. § 2251(a). (Attachments, ECF Nos. 65-1 at 3-4; 65-8.) Petitioner includes a related claim of ineffective assistance of counsel. (Attachments, ECF Nos. 65-1 at 3-4; 65-5 at 1.) Petitioner maintains that the mere fact that the equipment used to produce child pornography was manufactured outside Maine is insufficient to meet the element of interstate commerce. (Attachment, ECF No. 65-8.)

         First, the argument is procedurally defaulted because Petitioner did not assert it at trial or on appeal.[3] See Frady, 456 U.S. at 165; Berthoff, 308 F.3d at 127.

         In addition, had the claim not been procedurally defaulted, Petitioner would not have succeeded. Section 2251(a) applies if the pornographic material was produced using materials that have traveled in interstate commerce. 18 U.S.C. § 2251(a).[4] “The term ‘jurisdictional element' refers to a statutory provision that limits (or, more commonly, justifies) the reach of a federal statute by linking the offense to conduct that involves ‘at least some explicit connection with or effect on interstate commerce.'” United States v. Burdulis, 753 F.3d 255, 261 (1st Cir. 2014) (discussing 18 U.S.C. § 2252(a)(4)(B) and holding that, as a matter of law, pornographic images were produced when they were copied onto a thumb drive, and that such a device, made in China, satisfied the jurisdictional requirement).[5]

         Petitioner does not contest that the computer, camera, and external hard drives involved in Count 1, the production offenses, were all manufactured outside Maine.[6] (Prosecution Version at 2-3; Plea Tr. at 19.) On that basis, Petitioner's jurisdictional argument that he should not have been found guilty lacks merit. See Burdulis, 753 F.3d at 261-62. Because the underlying argument lacks merit, the ineffective assistance claim also fails. See Tse, 290 F.3d at 465.

         2. Claim regarding pre-trial detention

         Petitioner contends his due process rights were violated during the federal pre-trial process. (Attachments, ECF Nos. 65-1 at 3; 65-6; 65-9.) Petitioner argues specifically that a federal detainer impeded his ability to make bail on state charges, and he was denied his right to a speedy and public trial on the federal charges. (Attachments, ECF Nos. 65-1 at 2; 65-6.) Petitioner alleges that the state charges were brought as a sham prosecution to hold Petitioner pending initiation of the federal charges. (Attachment, ECF No. 65-6.)

         Petitioner's claim is procedurally defaulted, and it fails on the merits because Petitioner pled guilty unconditionally.

We have previously held that, by waiving the right to a trial through a guilty plea, the defendant waives all nonjurisdictional defenses. We now join with our sister circuits and hold that a claim under the Speedy Trial Act is a ...

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