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Hitchcock v. United States

United States District Court, D. Maine

January 5, 2018

CHRISTOPHER HITCHCOCK, Petitioner,
v.
UNITED STATES OF AMERICA Respondent

          ORDER AFFIRMING RECOMMENDED DECISION

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         After performing a de novo review, the Court affirms the Magistrate Judge's recommendation that an inmate's habeas corpus petition be denied because the fact that after the imposition of the federal sentence, the state dismissed then pending state charges would not have changed the Court's sentence and the Court properly considered the then pending state charges at the sentencing hearing.

         I. BACKGROUND

         A. Procedural Background

         On February 7, 2013, a federal grand jury indicted Christopher Hitchcock for knowingly transporting child pornography, a violation of 18 U.S.C. § 2252A(a)(1).[1]On November 13, 2013, Mr. Hitchcock pleaded guilty to Count One of the indictment and admitted the contents of the Revised Prosecution Version of the offense. Min. Entry (ECF No. 41); Revised Prosecution Version (ECF No. 40). On April 28, 2014, the Court sentenced Mr. Hitchcock to 240 months of incarceration, twenty years of supervised release, and a $100 special assessment. Min. Entry (ECF No. 50); J. (ECF No. 54). On April 30, 2014, Mr. Hitchcock filed a notice of appeal to the Court of Appeals for the First Circuit, appealing his sentence. Notice of Appeal (ECF No. 56). On June 25, 2016, the First Circuit affirmed his sentence. J. (ECF No. 62) (First Circuit J.).

         On February 5, 2016, Mr. Hitchcock, acting pro se, filed a motion to vacate, set aside or correct his sentence purportedly pursuant to Federal Rule of Civil Procedure 60(b). Mot. for Relief (ECF No. 68) (Pet'r's Mot.). On March 31, 2016, the Government filed a motion to comply with Castro v. United States, 540 U.S. 375, 377 (2003), seeking to have the Court warn Mr. Hitchcock that it was going to recharacterize his Rule 60(b) motion as a habeas corpus petition under 28 U.S.C. § 2255, that he would be subject to the restrictions on successive collateral challenges, and that he had the opportunity to withdraw or amend his pleading. Gov't's Mot. to Comply with Castro v. United States at 1 (ECF No. 74). Mr. Hitchcock objected to the Castro notice. Pet'r's Obj. to Gov't's Mot. to Comply with Castro v. United States (ECF No. 75). On August 4, 2016, the Magistrate Judge issued a recommended decision in which he recommended that the Court grant the Government's Castro motion. Recommended Decision on Gov't's Mot. to Comply (ECF No. 77). On September 2, 2016, the Court affirmed the recommended decision. Order Affirming the Recommended Decision of the Magistrate Judge (ECF No. 78).

         Due to a clerical mistake, Mr. Hitchcock's petition became inactive for a time and on March 31, 2017, the Court, prompted by his inquiry, issued an order for the Government to respond to his petition. Order on Status of Case (ECF No. 81). On April 21, 2017, the Government filed its response. Gov't Mot. for Summ. Dismissal of Mot. to Vacate, Set Aside, or Correct Sent. Pursuant to 28 U.S.C. § 2255 (ECF No. 82) (Gov't's Opp'n). On May 3, 2017, Mr. Hitchcock filed a reply. Reply to Gov't's Mot. for Summ. Dismissal of 28 U.S.C. § 2255 Mot. (ECF No. 83). On June 12, 2017, the Magistrate Judge issued a recommended decision, recommending that the Court deny Mr. Hitchcock's petition. Recommended Decision on 28 U.S.C. § 2255 Mot. (ECF No. 85) (Recommended Decision). On June 26, 2017, Mr. Hitchcock objected to the recommended decision. Pet'r's Obj. to Magistrate[']s Report and Recommended Decision (ECF No. 86) (Pet'r's Obj.). On July 10, 2017, the Government filed its response. Gov't's Resp. to Pet'r's Obj. to Magistrate's Report and Recommended Decision (ECF No. 87) (Gov't's Resp. to Obj).

         B. Factual Background

         1. The Crime

         In August of 2010, the FBI was investigating an individual (Individual One) who was trading child pornography via Yahoo! email. Revised Prosecution Version at 1 (ECF No. 40). After executing a search warrant at Individual One's residence, he agreed to allow investigators to take over his online presence. Id. Investigators discovered that on August 8, 2010, an individual with the Yahoo! email username “avalee6969” sent via email twenty-six images of child erotica and child pornography to Individual One. Id. These images were of the same female child. Id. Two such images admitted under seal as Exhibits A and B depict a prepubescent female lying on her back. Id. The female has her legs spread and is holding them apart with her hands. Id. The focal point of the image is the vagina of the female child. Id. The girl in this image was identified as a real child by the National Center for Missing and Exploited Children. Id. Photographs of her abuse were taken in the Netherlands when she was between eight and thirteen. Id. The defendant possessed and transported images of this girl at the age she appears in Exhibit A and B. Id.

         The FBI determined that the IP address assigned to the user “avalee6969” at the time and date the images were sent to Individual One resolved to the defendant's parent's house in Fort Fairfield, Maine. Id. at 1-2. On May 31, 2011, a search warrant was executed at the defendant's parent's house in Fort Fairfield, Maine. Id. at 2. Investigators then went to the defendant's residence but were told he was at work. Id. Later in the afternoon on the day the search warrant was executed, the defendant showed up at the Presque Isle Police Department. Id. He agreed to speak to investigators. Id. He admitted that the “avalee6969” Yahoo! email account belonged to him. Id. He also admitted that he had used his father's computer at his parent's residence in Fort Fairfield, Maine to access his Yahoo! email account while he lived there. Id. He acknowledged that he had emailed images of child pornography to multiple other users using his Yahoo! email account with the username “avalee6969.” Id. Defendant admitted that he transported child pornography images of the female child in Exhibit A & B but stated that he was not the only person with access to the Yahoo! email account. Id.

         The defendant agreed to allow law enforcement to access the Yahoo! email account with the username “avalee6969” and to assume the identity on the account. Id. He signed a consent form agreeing to this and he provided a password to the account. Id. A review of the defendant's email account corroborated his statement to law enforcement. Id. In the Sent Items folder of the “avalee6969” Yahoo! email account, investigators found 128 emails that contained a total of 704 child erotica and 2586 child pornography images. Id. at 2-3. The majority of these sent images were the same as the original twenty-six images that were sent to Individual One. Id. at 3.

         At the November 13, 2013 Rule 11 hearing, Mr. Hitchcock admitted the truth of the contents of the Prosecution Version as revised, including that he recognized the girl whose images appeared in Exhibits A and B and that the images were child pornography. Tr. of Proceedings, Rule 11 Proceedings 15:23-18:3 (ECF No. 61). Mr. Hitchcock expressly admitted that the information contained in the Prosecution Version as revised was true to his personal knowledge. Id. 17:14-16.

         2. The ...


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