United States District Court, D. Nevada
LLOYD D. GEORGE, District Judge.
The defendant, Mark David Chanley ("Chanley"), has moved to vacate, set aside, or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255. Chanley is currently serving a 210-month sentence after a guilty verdict following a bench trial for receipt of child pornography pursuant to 18 U.S.C. § 2252a(A)(2).
In 2007, a Colorado corrections employee contacted the Henderson Police Department because a sex offender inmate ("inmate Weir") was receiving letters and pictures of semi-clothed young boys from a "Marco Donatonelli Cianciulli" located at 516 Mona Lane in Henderson, Nevada. Officer Michael Gillis ("Officer Gillis") investigated the residence and discovered that Chanley, also a convicted sex offender, lived at the residence. Chanley was previously convicted and sentenced to eight years in prison for sexual assault on a child. Officer Gillis filed an Application and Affidavit for a Search Warrant ("affidavit") that contained information from the various letters and describing certain pictures that Chanley was sending to inmate Weir to support probable cause justifying a search warrant. Officer Gillis also listed information about his experience, knowledge, and training about sexual predators and those that receive and possess child pornography in his affidavit. A search warrant was issued and Chanley was arrested after Henderson police officers recovered 512 images and 22 videos of child pornography at the residence where Chanley lived with his parents. With the exception of one computer, all the evidence seized was located in Chanley's bedroom.
Chanley argues that this conviction was obtained by use of evidence seized during an unconstitutional search. He also argues that the search was unconstitutional because the affidavit filed by Officer Gillis lacked probable cause, contained numerous materially false statements about the letters and pictures that Chanley mailed inmate Weir, and that Officer Gillis listed the false information in the affidavit with a reckless disregard for the truth. Furthermore, Chanley asserts that if the materially false statements were removed from the affidavit, it would be void of probable cause. Chanley asserts that his hired counsel, Mr. Donald Green ("Mr. Green), was deficient for not comparing the affidavit to the letters and for not directing the court to the materially false statements in the affidavit in the first motion to suppress (#20) that Mr. Green filed. Additionally, Chanley asserts that if Mr. Green had directed the court to the misstatements contained within the affidavit, a Franks hearing would have been granted and the evidence seized and used to convict Chanley would have been suppressed. Chanley argues that he was prejudiced by Mr. Green's deficiencies because he inadvertently waived his right to appeal the decision on his motion to suppress when Mr. Green did not object to the magistrate judge's recommendation denying his motion to suppress (#27). Now, Chanley asks the court to review the eight grounds in his § 2255 motion and provide him relief.
Having reviewed each of the grounds, it appears from the motion and the record of prior proceedings that Chanley is not entitled to any relief. Accordingly, the court will dismiss the motion for the reasons below.
II. PROCEDURAL HISTORY
On May 2, 2007, Chanley was arrested and charged with receipt and possession of child pornography. In August of 2010, during a one-day bench trial, Chanley was convicted of one count of receipt of child pornography by the United States District Court, District of Nevada. In 2011, the United States Court of Appeals for the Ninth Circuit affirmed the district court's judgment and in 2012, the Supreme Court denied Chanley's petition for a writ of certiorari. Subsequently, Chanley filed a § 2255 motion (#234). He also filed several motions to supplement and amend his motion (## 230, 237, 240, 243, 244, 245), which this court granted. Then, in 2013, Chanley filed a justification for a Franks v. Delaware hearing (#263). Also, Chanley submitted a petition for writ of mandamus to the United States Court of Appeals for the Ninth Circuit (#264), which the Court of Appeals denied (#266).
As noted, in addition to filing a lengthy § 2255 motion (#234), Chanley filed several documents seeking leave to amend or supplement his motion (## 230, 237, 240, 243, 244, 245). To ensure that Chanley received the opportunity to present his grounds for relief and theories in support of those grounds, this court granted Chanley's requests to supplement, and granted the government time to respond to the § 2255 motion as set forth in the original motion and the supplements. The government opposed Chanley's § 2255 motion and addenda (#252). Chanley then filed a reply/opposition to the government's response to the supplemental cases and arguments (#267).
Initially, after Chanely's arrest in 2007, the court appointed Richard Frankoff ("Mr. Frankoff"), an Assistant Federal Public Defender, as counsel. See CR 10. Shortly after Mr. Frankoff was appointed as counsel, Chanley filed a motion to substitute retained counsel, Donald J. Green ("Mr. Green"), for appointed counsel. See CR 15. However, in 2009, Chanley filed a motion to terminate Mr. Green as counsel and requested that the court appoint him counsel. See CR 61. The court granted Chanley's motion and reappointed Mr. Frankoff. Mr. Frankoff resigned from his position at the federal public defender's office and as a result, Ms. Rebecca Rosenstein ("Ms. Rosenstein") was appointed as Chanley's counsel. See CR 91. Chanley asked the court to appoint new counsel and provide him the opportunity to present his evidence to the court because he asserts that he was disappointed in Ms. Rosenstein's performance for failing to follow his directions and legal directives. See CR 96. Before the court could grant his motion, Chanley filed another motion to dismiss Ms. Rosenstein and proceed pro se. See CR 99 and 103. The court granted the motion, permitting Chanley to represent himself and appointed Rene Valladares ("Mr. Valladares") to act as advisory counsel. See CR 106 and 107. Shortly before trial, Chanley requested that Mr. Valladares act as appointed counsel. See CR 149. After his conviction in 2010, Jason Carr (Mr. Carr) was assigned to serve as Chanley's counsel on appeal. See CR 194. Currently, Chanley is proceeding pro se on his § 2255 motion. See CR 234.
III. FACTUAL BACKGROUND
On March 28, 2007, Mr. Henry Ybarra from the Mental Health Department of the Arkansas Valley Correctional Facility in Crowley, Colorado, contacted Officer Gillis about inmate Weir, who was receiving mail correspondence and pictures from Chanley. The mail correspondence and pictures were used as support for five of the eighteen facts (facts ## 2, 5, 6, 7, 9) that Officer Gillis would subsequently list in his affidavit. See CR 24-2. On April 30, 2007, Judge R. Burr granted Officer Gillis's search warrant.
Chanley's primary ground for relief in his § 2255 motion is that he was denied effective assistance of counsel. See CR 234, 243, 244. Chanley alleges that his retained counsel, Mr. Green, failed to fully litigate the issues in Officer Gillis's affidavit. Mr. Green, on Chanley's behalf, filed a timely motion to suppress all items of evidentiary value seized during the May 2007 search of Chanley's residence (#20). In the same motion, Mr. Green requested a Franks hearing to determine if the affidavit provided sufficient probable cause to warrant the search of Chanley's residence (#20). The government responded to Chanley's motion (#23). The magistrate judge denied the motion (#27) and Mr. Green did not object to the judge's decision, waiving Chanley's right to appeal the issue.
Chanley asserts that Mr. Green was deficient for failing to fully investigate the affidavit by comparing the facts of the affidavit to the letters and pictures that Chanley allegedly mailed to inmate Weir. Chanley further asserts that if Mr. Green had fully investigated the alleged discrepancies in the affidavit, his motion to suppress would have met the basic requirements justifying a Franks hearing. Upon completion of a Franks hearing, Chanley argues that the Court would have ruled that Officer Gillis's affidavit lacked probable cause, thus the search of his residence would have been declared unconstitutional and the evidence seized would have been suppressed. Furthermore, Chanley claims to have been unduly prejudiced by Mr. Green's actions because Chanley is unable to appeal or further litigate the alleged discrepancies in Officer Gillis's affidavit.
Chanley also alleges that his conviction was obtained by evidence gained pursuant to an unconstitutional search and seizure because Officer Gillis's affidavit contained numerous materially false statements that were made with a reckless disregard for the truth. Furthermore, Chanley claims that if the false statements are excised, the affidavit lacks probable cause. See CR 234, 237, 244, 245. The government admitted on appeal that Officer Gillis's affidavit incorrectly stated one fact regarding the use of a "pay site" to find photographs. However, the government asserts that the record indicates that Officer Gillis's one misstatement was not intentional or reckless. See CR 252.
Additionally, Chanley alleges that the grand jury indictment was obtained through the misconduct of prosecutor, Nancy Koppe ("Ms. Koppe"), who subordinated perjury from the testimony of witness Officer Jamie Brooks ("Officer Brooks"). See CR 234, 240. Chanley asserts that Ms. Koppe asked Officer Brooks specific questions that solicited responses that were false and misleading regarding Officer Gillis's affidavit. Chanley states that because the government has admitted to the one false statement in Officer Gillis's affidavit, that both Ms. Koppe and Officer Brooks knew or should have known the testimony used in obtaining the indictment against him was false.
Also, Chanley asserts that his verdict was obtained via a vindictive prosecution and prosecutorial misconduct by the government. See CR 234, 240. Chanley alleges that his counsel, Mr. Frankoff, approached Ms. Koppe and received personal assurances from her that the government would not object to Chanley's second motion to suppress (#77) as being time-barred or otherwise barred procedurally. However, contrary to this asserted personal assurance of the prosecutor, the government opposed the motion as untimely. See CR 78. Chanley presents Ms. Koppe's actions as evidence of the government's vindictiveness, as well as evidence for ethical and prosecutorial misconduct.
In addition to the other claims listed above, Chanley asserts that there was insufficient evidence submitted at trial to sustain his conviction on either count of the indictment. See CR 234. First, Chanley argues that there is no direct evidence that exists linking him to the contraband seized. Second, Chanley argues that there are no witnesses that saw him view the alleged contraband and that the government failed to prove that he knew of the alleged illegal contraband. Not only does Chanley claim there was insufficient evidence to convict him, Chanley also alleges that his conviction was obtained through the introduction of evidence after the close of his bench trial, thus violating his right to confront and examine the evidence. See CR 234. Chanley's counsel, Mr. Valladares, filed a Rule 29(a) motion for judgment of acquittal (#180) that included the claim that the government did not prove that Chanley knowingly received child pornography within the five-year statute of limitations. The government's response (#183) to the motion for judgment of acquittal listed Exhibits 3A, 3B, 3C, and 12 which include videos and photographs of child pornography Chanley received in or after 2007. Chanley asserts that the government performed an exhaustive forensic search of the seized computer data after the close of his trial to defeat his statute of limitation claim.
Additionally, Chanley expands upon his ineffective assistance of counsel claim by stating that his conviction is unconstitutional because his Sixth Amendment rights and statutory rights to a speedy trial were violated. See CR 234. Chanley challenges that Mr. Green filed multiple continuances (## 18, 25, 36, 40, 42, 56) without consulting him first. While Chanley was acting as his own attorney with permission of the court, he notified the court of the speedy trial violations in his motion to dismiss the indictment (#111), which this court struck. While Chanley's counsel, Mr. Carr, raised this issue on appeal, and the Ninth Circuit rejected the argument, Chanley alleges that his counsel's performance before the Ninth Circuit was half-hearted because the appeal lacked the factual details necessary to prove his claim.
In closing, Chanley contests the final forfeiture order and alleges that the order was a direct violation of his Fourth, Fifth, Sixth, Seventh, and Fourteenth Amendment rights and must be vacated. See CR 234. Chanley asserts that both his retained and appointed counsel failed to protect his personal property interests. Furthermore, Chanley maintains that the search of his residence in 2007 was unconstitutional and he demanded his counsel to take action to garner the return of his unlawfully seized property.
As the amended § 2255 motion is now before the Court, with eight grounds for relief, the court has considered if Chanley stated enough facts to support any of his grounds for relief; that is, whether it appears from the motion-in the context of the record of the prior proceedings-that good cause appears for an evidentiary hearing as to any ground, and whether the record-or the allegations-relevant to any of Chanley's grounds for relief require dismissal of that ground for relief.
A. Dismissal of issues raised on direct appeal.
Chanley's counsel, Mr. Carr, argued to the Ninth Circuit Court of Appeals that the district court erred in denying Chanley's motion to suppress as untimely; that Chanley's speedy trial rights were violated; and that there was insufficient evidence to support Chanley's conviction for receipt of child pornography. The Ninth Circuit affirmed the district court's decision and denied Chanley's appeal. In Chanley's amended § 2255 motion, two of his eight grounds for relief (grounds five and six) repeat issues that were raised on direct appeal. Chanley is barred from re-raising these issues in his § 2255 motion.
A § 2255 motion may not attack issues that were raised at trial and considered on direct appeal. See Egger v. United States, 509 F.2d 745, 748 (9th Cir. 1975). In Egger, the defendant attempted to reargue an issue raised and found unworthy of discussion on appeal regarding a witness using notes from a tape recording to refresh her memory of a conversation between her and the defendant. Id. However, in Egger the defendant asserted that his § 2255 motion raises a separate, and more general, objection that was not considered on direct appeal. Id. The Court disagreed and found that the general objection in the defendant's § 2255 motion was no different than the specific objection made on appeal and concluded that the grounds raised in the original appeal were not subject to further collateral attack in a § 2255 motion. Id.
Unlike the defendant in Egger who argued that the general objection in his § 2255 motion was different than the specific objection made on appeal, Chanley does not contest that the issue he raises in ground five was already raised on direct appeal. The record further confirms the issue was raised on direct appeal. Mr. Carr, on Chanley's behalf, argued that Chanley's conviction was unconstitutional because his Sixth Amendment Rights and statutory rights to a speedy trial were violated. The Ninth Circuit Court of Appeals rejected this argument, determining that Chanley's right to a speedy trial was not violated because he consented to the continuances of his trial; justice was obtained because of the continuances; and Chanley failed to demonstrate that he was prejudiced by the continuances. See United States v. Drake, 543 F.3d 1080, 1085-86 (9th Cir. 2008) (court analyzes a Speedy Trial Clause claim by applying the four-part test established by Barker v. Wingo, 407 U.S. 514, 530 (1972); the four factors are the length of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant).
In ground five, Chanley again seeks an opportunity to argue that his speedy trial rights were violated. The majority of Chanley's alleged indisputable facts listed in his amended § 2255 motion are about three continuances that Mr. Green requested (## 36, 40, 42), and merely re-state the issue raised on appeal. Accordingly, Chanley is barred from again asserting a violation of his speedy trial rights.
Further, even if the Court were to consider the ground, the Court would deny the ground on its merits. A review of the record shows that Mr. Green filed six continuances (## 18, 25, 36, 40, 42, 56) which the court granted (## 19, 26, 37, 41, 43, 59) before Chanley filed a motion to terminate Mr. Green as counsel (#61). There were two other continuances filed by Chanley's counsel, Mr. Frankoff, (## 72, 82) which the court granted (## 76, 88). Chanley does not contest the continuances filed by Mr. Frankoff, but instead argues that the court erred when it struck his motion to dismiss the indictment (#111), which presented the speedy trial violations allegedly committed by his former counsel, Mr. Green.
Chanley argues in his § 2255 motion that the court erred in granting Mr. Green's stipulations as a means to fulfill the "ends of justice." Furthermore, Chanley asserts that his case was neither unusual nor complex for the court to grant Mr. Green's stipulations. As stated by 18 U.S.C. § 3161(h)(7)(A)-(C), delays resulting from continuances granted by the court are not excludable under subsection (h) unless the court sets forth in the record either orally or in writing the reasons for granting the continuances. Furthermore, the statute also lists factors that a judge can consider in determining whether to grant a continuance under subparagraph (A). Chanley argues that the stipulations Mr. Green filed did not meet any of the factors. A review of the record shows that the court entered written findings with reasons for each of the stipulated requests filed by both Mr. Green and Mr. Frankoff. Thus, the court complied with the requirements of 18 U.S.C. § 3161(h)(7), and Chanley is not entitled to any relief on ground five.
Chanley argues in ground six that there was insufficient evidence submitted at trial to sustain his conviction on either count of the indictment. This issue was also raised on appeal. Again, for this reason alone, Chanley is precluded from raising this argument in his § 2255 motion, and dismissal of the ground is appropriate. Nevertheless, while it is not necessary for this court to consider ground six because it was raised on direct appeal, See Egger, 509 F.2d 745, 748, a review of the record establishes that Chanley is not entitled to relief. According to 18 U.S.C.A. § 2252A, to convict a defendant of receipt and possession of child pornography, the government has the burden of showing beyond a reasonable doubt that the defendant (a) knowingly received and possessed (b) any child pornography or any material that he knew contained child pornography (c) that was mailed, shipped, transported in, or affected interstate or foreign commerce by any means, including by computer ("the interstate nexus"). To determine if evidence is sufficient to sustain a conviction of child pornography, the court "views the evidence in the light most favorable to prosecution and determines whether any rational trier of fact could have found the defendant guilty of each element of the crime beyond a reasonable doubt." United States v. Heller, 551 F.3d 1108, 1113 (9th Cir. 2009) (citation, alteration, and internal quotation marks omitted).
Chanley previously stipulated that all images and videos entered into evidence are child pornography. A total of 512 images and 22 videos were recovered from three different computers (Exhibits 2, 4 and 5), three CDs (Exhibits 3A, 3B, and 3C), and a folder containing printed images (Exhibit 1). The record shows that the court found, beyond a reasonable doubt, that printed images stored in the Exhibit 1 folder were child pornography, that images and videos stored on Exhibits 3A, 3B, and 3C, were child pornography, and that the images and videos offered into evidence on Exhibits 6, 8 and 9 were child pornography. All of the images and videos were seized in Nevada during the execution of a search warrant. The three computers, three CDs, and the folder of printed images were located in a single residence. With the exception of one computer, the other items were located in a single bedroom within the residence. The room contained mail addressed to the defendant and mail addressed to "Marco Cianciulli." No other items were located in that bedroom indicating that any person other than Chanley used the bedroom. Accordingly, the bedroom in which these items were located was Chanley's bedroom.
Furthermore, Chanley previously stipulated that the images and videos contained in Exhibits 8 and 9 were produced outside of Nevada. At least three of the videos contained in Exhibit 6 were produced outside of Nevada. All of the images and videos were seized in Nevada during the execution of the search warrant. The file path for at least two images stored on the Exhibit 4 computer, "P1010083_0.JPG" and "P1010347.jpg" includes the term "alt.fan.prettyboy, " which is the name of a usenet site on the internet. The file path for images on the Exhibit 3B CD includes the terms "alt.bainaries.pictures.boys.barefoot, " "alt.sex.boys, " and "alt.sex.pedophelia.boys." The file paths that include these terms were used to store images of child pornography on Exhibit 3B. Numerous images of child pornography on Exhibit 3B include text referencing the internet or internet websites or addresses. Child pornography on Exhibit 3A was from the KDV series produced in Russia. Numerous images of child pornography include text indicating its production in Russia. The court found, beyond a reasonable doubt, that at least the following images and videos met the element of an interstate nexus: images and video on Exhibits 3A, 3B, or 3C for which the file name or content indicates it is part of the KDV series or was otherwise produced in Russia; images on Exhibit 3B whose file path includes the terms "alt.bainaries.pictures.boys.barefoot, " "alt.sex.boys, " and "alt.sex.pedophelia.boys; images of child pornography on Exhibits 3A, 3B, and 3C whose content includes text-such as ".com"-referencing the internet; three videos on Exhibit 6-"RIDING DADDY.mpg, " "AO6.mpg, " and "pr_16_mpeg384.mpg"-; and, all of the images and videos on Exhibits 8 and 9.
Because it has been previously stipulated that the evidence is child pornography and that some of the images and videos met the element of an interstate nexus, the court only needed to determine if the evidence used to convict Chanley was sufficient to demonstrate that he knowingly received and possessed child pornography. Chanley's primary argument in ground six is that there was no direct evidence linking him to the child pornography contraband in question. Additionally, Chanley asserts that unlike previous child pornography convictions upheld by the Ninth Circuit Court of Appeals where the cases had a guilty plea, a confession, or a witness, there was no evidence in Chanley's case that he pled guilty, confessed, or that a witness saw Chanley receive or possess child pornography. However, Chanley misreads the statutory language in 18 U.S.C.A. § 2252A. As previously determined by the Ninth Circuit, "knowingly possessed, " as defined in 18 U.S.C.A. § 2252A, has the traditional meaning of "having or holding property in one's power; the exercise of dominion over property." U.S. v. Romm, 455 F.3d 990, 999 (9th Cir. 2006) (citation, alteration, and internal quotation marks omitted). Thus, to sustain a child pornography conviction on receipt and possession, the government does not have the burden, and is not limited, to direct evidence, as Chanley suggests. Rather, the government can meet its burden by offering evidence, whether direct or circumstantial, that establishes a sufficient connection between Chanley and the child pornography to support the inference that he exercised dominion and control over it. Id.
The child pornography was seized from a single residence, and with the exception of one computer, all of the items seized were located in a single bedroom within the residence. The room was Chanley's bedroom. The location of the child pornography, combined with the method used to label and organize the files, was sufficient evidence to support the inference that Chanley exercised dominion and control over it. Therefore, the evidence was sufficient to support both counts of Chanley's conviction. The record shows that the government achieved its burden by proving beyond a reasonable doubt that Chanley knowingly received and possessed child pornography for which there was an interstate nexus for receipt and possession. Thus, even if Chanley was not barred from raising ground six as previously raised on direct appeal, the Court would nevertheless dismiss this ground for relief because the record, and particularly the evidence the Court received during the bench trial in this matter, is sufficient to sustain Chanley's conviction.
B. Dismissal of request for relief from final order of forfeiture.
Chanley challenges this court's forfeiture order in ground seven of his § 2255 motion. The purpose of a § 2255 motion is to provide federal prisoners a vehicle to challenge sentences that are unconstitutional, imposed without jurisdiction, in excess of the maximum amount authorized by law, or otherwise subject to a collateral attack. See 28 U.S.C. § 2255(a). While Chanley argues that the final order of forfeiture was in direct violation of his Fourth, Fifth, Sixth, Seventh, and Fourteenth Amendment rights, he is not requesting relief from his sentence. Thus, Chanley is not permitted to challenge the final order of forfeiture in his § 2255 motion and is not entitled to any relief on ground seven. The Court will dismiss this ground for relief.
C. Chanley's conviction rested upon evidence admitted and received during the trial.
Chanley argues in ground three that his conviction was obtained through the introduction of evidence that the Court received after the close of his trial. He supports this claim by asserting that the court waited weeks to rule on his 29(a) motion for a judgment of acquittal (#167), which motion argued that the government failed to establish that he received the child pornography within the five-year statute of limitations. Chanley alleges that after he filed his 29(a) motion, the court conducted an exhaustive forensic analysis of the computer data seized to find files that could possibly discredit his statute of limitations claim. Furthermore, because the court allegedly conducted this forensic analysis after his trial, Chanley did not have the chance to examine all the evidence used against him.
The court listed the evidence it considered in its specific findings of fact pursuant to Federal Rule of Criminal Procedure 23(c). See CR 175. The record identifies the evidence upon which the Court relied in convicting Chanley. None of that evidence was introduced after the close of trial to obtain his conviction. A review of the record offers specific findings of fact with respect to the evidence admitted at trial, upon which Chanley was convicted of receipt and possession of child pornography (#175). The court viewed a total of 512 images and 22 videos that were recovered from three different computers (Exhibits 2, 4 and 5), three CDs (Exhibits 3A, 3B, and 3C), and a folder containing printed images (Exhibit 1). All of this evidence was received during the trial. Evidence was received by the Court, during the trial, establishing that Chanley received more than one image or video of child pornography during the year 2007 (Exhibits 3A, 3B, 3C, 12), which was the year he was indicted. The government met its burden by offering sufficient evidence during Chanley's bench trial that he knowingly received and possessed, within the five-year statute of limitations, images and videos of child pornography, and that some of those images and videos had an interstate nexus.
According to 28 U.S.C. § 2255(b) when the motion and the files and records of the case conclusively show that the prisoner is not entitled to any relief, then a hearing to determine the issues and make findings of fact and conclusions of law is not necessary. The record conclusively shows that Chanley is not entitled to any relief on ground three. For example, Chanley's argument that the reason it took the court a suspicious amount of time to deny his Rule 29(a) motion was because the court performed an exhaustive forensic analysis of the child pornography to disprove his statute of limitation claim, contradicts the record. Chanely's counsel, Mr. Valladares, filed Chanely's Rule 29(a) motion (#167) on April 21, 2010. While the government had until May 8, 2010 to respond, it responded to Chanley's motion within two days (April 23, 2010). See CR ...