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Millette v. United States

United States District Court, D. Maine

June 26, 2018

KEVIN MILLETTE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE.

         In this action, Petitioner Kevin Millette moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 40.) Following a guilty plea, Petitioner was convicted of possession of child pornography; the Court sentenced Petitioner to 120 months in prison, to be followed by seven years of supervised release. (Judgment, ECF No. 37 at 1-3.)

         In Petitioner's section 2255 motion, he contends he is entitled to section 2255 relief based on an alleged Fourth Amendment violation, citing United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016).[1] (Motion at 13-15.) Petitioner also alleges, in a motion to supplement filed more than a year after his judgment became final, that counsel failed adequately to advise him, before he pled guilty, on his right to be charged by a grand jury indictment, his right to challenge evidence on Fourth Amendment grounds, and his right to appeal from the conviction or sentence; he also alleges counsel failed adequately to investigate defenses and information relevant to mitigation. (Motion to Supplement, ECF No. 55 at 1-3; Reply, ECF No. 65 at 1-2.) He alleges that as a consequence of counsel's performance, his plea was not knowing and voluntary. (Motion, ECF No. 55 at 3.)

         Following a review of Petitioner's motion, 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

         On November 7, 2015, before obtaining a search warrant, a Homeland Security Investigations (HSI) special agent examined an image that had been provided by Google, Inc., as part of a report from Google to the National Center on Missing and Exploited Children (NCMEC) on NCMEC's CyberTipline. (Affidavit, ECF No. 3-1 at 18-22.) NCMEC had in turn forwarded Google's report to the Maine State Police Computer Crimes Unit, which sent the report to the HSI special agent. (Id. at 20.) The HSI special agent included a description of the image within his affidavit, dated November 10, 2015, in support of a search of the Google email account from which the image had been uploaded, for evidence of transportation of child pornography. (Id. at 20, 26.)

         The HSI special agent stated in the November 10, 2015, affidavit:

According to the report, Google, Inc. had reported that on October 12, 2015, at approximately 7:19 p.m. EST, an individual using the email address . . . had uploaded and attached an image depicting child pornography to an email within the Gmail system. NCMEC further reported that Google had categorized the image upon sending it to NCMEC as category “A1, ” meaning that, according to Google, it depicted a prepubescent minor engaged in a sex act. Additionally, NCMEC reported that Google could not determine whether the email to which the image had been attached had actually been sent by the user. . . .

(Id. at 20.)

         The HSI special agent also included in the affidavit a telephone number that Google reported had been provided by the person using the email account at issue, as well as several IP addresses used to access the account. (Id.) The HSI special agent stated that, in his experience, several of the IP addresses were associated with Maine locations, including Biddeford, Standish, Raymond, Lee, and Brownfield. (Id. at 21.)

         The HSI special agent reported that he entered into Facebook's search bar the telephone number Google provided for the account, and he “found it to be associated with the single profile of a Kev Millette of Alfred, Maine. Millette's profile described him as living in Alfred, Maine, and as being employed at [a named store] in Biddeford.” (Id. at 21.)

         The agent also recounted the results of a search of the Maine sex offender registry:

I subsequently searched the Maine Sex Offender Registry, and found that an individual named Kevin Millette of Alfred, Maine was listed on the registry; according to the registry, Millette was employed at [the named store] in Biddeford. Additionally, the photo provided in the registry appeared to match the Kev Millette found on Facebook. According to the registry, Millette's conviction was for possession of sexually explicit material of a minor under 12, in violation of 17-A MRSA 284(1)(C).

(Id. at 21-22.) A search warrant issued, and Google sent the results to the HSI special agent. (Id. at 2.) Based in part on the results of the search conducted pursuant to the November 10, 2015, warrant, the HSI special agent obtained a warrant on November 16, 2015, for a search of records and items at Petitioner's residence. (Id. at 1- 4, 14.)

         On November 16, 2015, Petitioner was charged by complaint with transportation of child pornography, pursuant to 18 U.S.C. §§ 2252A(a)(1), (b)(1); 2256(8)(A). (Complaint, ECF No. 3.) The HSI special agent's affidavit, dated November 16, 2015, was filed in support of the complaint, an arrest warrant, and a search warrant for a search of Petitioner's residence. (Affidavit at 1-2, 6, 14.) The agent's November 16, 2015, affidavit included, among other things, a description of the results of the Google search, and it included the November 10, 2015, affidavit as an attachment. (Id. at 2-4, 18-29.)

         In January 2016, Petitioner entered into an agreement with the Government to plead guilty to possession of child pornography, pursuant to 18 U.S.C. § 2252A(a)(5)(B). (Plea Agreement, ECF No. 26 at 1.) The plea agreement included an appeal waiver that stated in relevant part: “Defendant is aware that 18 U.S.C. § 3742 affords a defendant the right to appeal the sentence imposed. Knowing that, Defendant waives the right to appeal . . . Defendant's guilty plea and any other aspect of his conviction in the above-captioned case . . . .” (Id. at 3.)

         Petitioner waived indictment, and, following the plea colloquy, the Court accepted Petitioner's guilty plea. (Hearing Tr., ECF No. 62 at 12-13, 25-26.) In the plea colloquy, the Court informed Petitioner among other things, that if he pled guilty, he would be giving up several trial rights, including the right to object to evidence: “Your lawyer would have the opportunity to cross-examine any of the Government's witnesses and to object to any of the evidence that the Government offered.” (Id. at 16.) The Court asked Petitioner if he understood this right and the other trial rights the Court explained that he would be giving up if he pled guilty; Petitioner told the Court he understood. (Id. at 16-17.)

         Regarding the right of appeal, the Court informed Petitioner: “If I proceed to enter a judgment of guilty and sentence you on the basis of your guilty plea, if all that happens, except for very limited circumstances you will have no right of appeal of your conviction. Do you understand?” (Id. at 17.) Petitioner replied: “Yes.” (Id.)

         The Court entered the judgment and sentence on June 6, 2016. (Judgment at 1-2.) The Court noted the conviction carried a mandatory minimum prison term, and the Court imposed a 120-month sentence. (Statement of Reasons, ECF No. 38 at 1; Judgment at 2.)

         Petitioner states that he placed his section 2255 motion in the prison mailing system on March 20, 2017. (Motion, ECF No. 40 at 12.) Petitioner filed a motion to ...


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