United States District Court, D. Nevada
GEORGE FOLEY, Jr., District Judge.
Presently before the court are petitioner Ezra Hallock's motion to vacate under 28 U.S.C. § 2255 and his subsequent amendment to that motion. (Docs. ## 160 & 166). The government filed a response in opposition (doc. # 167), and petitioner filed a reply (doc. # 200).
Also before the court is petitioner's motion for leave to amend his § 2255 motion to add additional grounds for relief. (Doc. # 173). The government filed a response in opposition (doc. # 181), and petitioner filed a reply (doc. # 201).
As a preliminary matter, the court will grant petitioner's request to amend his initial § 2255 motion, and will address all of the arguments that he presents in his initial motion (doc # 160), his first amendment to that motion (doc. # 166), and his subsequent motion to amend (doc. # 173) on their merits.
On October 6, 2006, ICE Special Agent Laura Hodgdon submitted a search warrant application for petitioner's residence. In an affidavit, Agent Hodgdon stated that, as part of an investigation into the users of a program called Google Hello, agents had identified an Ohio resident named Michael Janosko who used that program to send and receive several hundred images of child pornography.
Agents had searched Janosko's residence and his computer. Janosko admitted using Google Hello to receive and distribute child pornography under the handle "Jamokie." Forensic analysis of his computer revealed folders containing Google Hello chat logs and filmstrip files. The computer also contained a folder called "friends, " which stored the user identification numbers, handles, and email addresses of some users who had communicated with Janosko. One of these user identification numbers was 753923, which listed the handle "camguyalone, " and the email address email@example.com. The folder contained a chat log from August 28, 2005, related to the receipt and distribution of child pornography, as well as thumbnail images of child pornography that Janosko sent to camguyalone.
Agents sent summonses to Yahoo!, Google, Cox Communications, and Sprint DSL. From Yahoo!, agents learned that someone had signed up for the email address firstname.lastname@example.org on April 5, 2001, and that this email address had been accessed from IP address 18.104.22.168 multiple times between May 30, 2006 and June 6, 2006. From Cox Communications, agents learned that the subscriber at IP address 22.214.171.124 was Ezra Hallock of 5417 Redview Ct., North Las Vegas, NV.
From Google, agents learned that user camguyalone had a user identification number 753923, the email address email@example.com, which it listed as verified, and that the user had registered for Google Hello on December 1, 2004. Google also reported that someone using the login cam_guy_alone used the IP address 126.96.36.199 to access the Google Hello account. From Sprint, agents learned that the subscriber at IP address 188.8.131.52 was petitioner, at the same address listed above.
Agents also discovered that petitioner was a registered sex offender, with a current address matching the address given by Cox Communications and Sprint. Agent Hodgdon and other agents executed the warrant on October 11, 2006.
Hallock lived at the residence with his wife and her five-year-old son. During the search, agents recovered thirteen hard drives, two laptop computers, and "hundreds and hundreds of multimedia storage devices." In all, the agents found more than twenty-six videos and more than 600 images of child pornography.
On December 13, 2006, a federal grand jury sitting in Nevada returned a two-count indictment charging petitioner with receipt and possession of child pornography.
On December 18, 2006, Agent Hodgdon arrested petitioner and informed him of his Miranda rights. Petitioner waived his rights and told Agent Hodgdon "that everything that [the agents] found on the computers that [the agents had] taken from his residence was his, he was solely responsible for it and that his wife and... stepson had nothing to do with it." When Agent Hodgdon asked petitioner if he was aware that the agents had found several hundred images of child pornography on his computers, he said yes.
When she asked if he had downloaded the images from the internet, he said he "may have, " then stated that "he fixed computers, and that he would sometimes transfer images from a client's computer onto-not images-he would sometimes transfer data from a client's computer onto one of his computers and he may not have looked at the information that he had transferred."
On April 24, 2008, petitioner's counsel filed an untimely motion to suppress evidence and a motion for permission to file late. The magistrate judge denied the request for late filing and the court affirmed that decision. On November 1, 2008, petitioner's counsel filed a motion to suppress the statements petitioner made during the search of his residence. The magistrate judge recommended that the evidence be suppressed, and the court affirmed that recommendation.
Petitioner was tried by a jury on May 17-19, 2010, and convicted on both counts. On May 24, 2010, petitioner's counsel filed motions for acquittal and for a new trial, which the court denied. The court entered judgment on September 15, 2010, sentencing petitioner to 180 months in custody followed by a life term of supervised release.
Hallock appealed, and the Ninth Circuit affirmed his conviction in an unpublished memorandum disposition. Subsequently, petitioner filed the instant motions for relief pursuant to 28 U.S.C. § 2255.
In the current motions before the court, petitioner lists twelve grounds for relief. He puts forward five counts of ineffective assistance of counsel and alleges seven due process violations.
Federal prisoners "may move... to vacate, set aside or correct [their] sentence" if the court imposed the sentence "in violation of the Constitution or laws of the United States...." 28 U.S.C. § 2255(a). Section 2255 relief should be granted only where "a fundamental defect" caused "a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 345 (1974); see also Hill v. United States, 368 U.S. 424, 428 (1962).
Limitations on § 2255 motions are based on the fact that the movant "already has had a fair opportunity to present his federal claims to a federal forum, " whether or not he took advantage of the opportunity. United States v. Frady, 456 U.S. 152, 164 (1982). Section 2255 "is not designed to provide criminal defendants multiple opportunities to challenge their sentence." United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).
A. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a defendant must show deficient performance and prejudice. Strickland v. ...