Bueno v. United States
| Decision Date | 13 January 2017 |
| Docket Number | CIVIL NO. 2:16cv680,ORIGINAL CRIMINAL NO. 2:16cr8 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | EDUARDO BUENO, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
This matter comes before the court on the Petitioner's pro se "Motion to Vacate, Set Aside, or Correct Sentence" ("Motion"), filed on November 14, 2016, and accompanying Memorandum in Support ("Memorandum"). ECF Nos. 44, 45.1 Also before the court is the Petitioner's Motion for Transcripts, ECF No. 4 6, and Motion to Expand the Record. ECF No. 47. For the reasons set forth below, the court DENIES the Petitioner's motions.
In October 2015, Google became aware that child pornography was being saved to a Google user's storage account. Statement of Facts ¶ 1. Google informed the National Center for Missing andExploited Children ("NCMEC"), which tied the information to a previous report of child exploitation linked to the same e-mail account. Id. Google determined that the user of the account provided additional information when he registered for the account, including that his name was Eduardo Bueno. Id. Many e-mails sent to the account addressed the recipient as "Eduardo." Id. ¶ 8.
The Petitioner is a registered sex offender, who resided in Portsmouth, Virginia. Id. ¶ 2. In 2001, he was convicted of indecent assault and battery on a child under the age of fourteen, in violation of Chapter 265, Section 13B, of the laws of Massachusetts. Id. ¶ 2. Bail court documents allege that the Petitioner repeatedly raped his then-girlfriend's daughter over a two-year period, when the daughter was between six and eight years old. PSR ¶ 37.
According to NCMEC report #6813709, the e-mail account user uploaded three files of images of minors engaging in sexually explicit conduct between November 14, 2014, and January 11, 2015. Statement of Facts ¶ 3. According to NCMEC report #6752734, the user uploaded to an e-mail an image of minors engaging in sexually explicit conduct on October 6, 2015. Id. ¶ 4. The account was accessed by Cox IP address 24.254.198.95. Id. On November 6, 2015, Cox responded to a subpoena related to the subscriber of that IP address. Id. ¶ 5. Cox reported thatthe account was associated with a rental unit where the Petitioner resided, and had been activated on September 17, 2015. Id.
On November 19, 2015, Homeland Security Investigations ("HSI") applied for and received a search warrant from the United States District Court for the Eastern District of Virginia for the contents of the e-mail account. Id. ¶ 6. The search warrant was issued to Google that same day. Id. On December 3, 2015, HSI received the contents of the e-mail account and discovered numerous additional e-mail accounts from which the account received and distributed child pornography. Id. ¶ 7. Most images were sent and received via e-mail attachments during 2014 and early 2015. Id. The user later provided images and videos containing child pornography via Google+ communities. Id. The account also contained e-mails discussing trading child pornography. Id. In one e-mail, the Petitioner boasted to the recipient that he had abused a child who attended his daughter's birthday party. PSR ¶ 8. In other e-mails, he implies that he abused another girl he describes as "the niece," and describes sexually abusing "little girls in the pool." Id.
On January 5, 2016, HSI and other law enforcement executed a search warrant at the Petitioner's residence and an arrestwarrant for the Petitioner.2 Statement of Facts ¶ 9. The Petitioner was administered his Miranda rights, and then spoke with HSI. Id. He admitted to trading images of minors engaging in sexually explicit conduct, and stated that he used his cellular phone to do so. Id. HSI then seized the Petitioner's phone. Id.
Analysis of the Petitioner's phone confirmed that he used it to trade and store child pornography. Id. ¶ 10. The investigation revealed that on or about October 1, 2015, the Petitioner distributed visual depictions of child pornography, including the following files: Video_[JANE DOE]_4_.avi, Spongebob%20Tied.wmv, and dghjg.mp4. Id. ¶ 11. The Petitioner knew that the visual depictions and images contained in his e-mail account and on his cellular phone were images depicting actual minors engaged in sexually explicit conduct. Id. ¶ 13.
An eight-count indictment was returned on January 20, 2016. ECF No. 14. The indictment charged the Petitioner with seven counts of distribution of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2), and 2256(1) and (2), and one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252 (a)(4)(B), and 2256(1) and 2. See id. No motions to suppress were filed, and on February 12, 2016, the Petitionerappeared before Magistrate Judge Douglas E. Miller for a Rule 11 hearing. ECF No. 22. The Plea Agreement and Statement of Facts were filed with the court that same day. ECF Nos. 22, 23.
On May 31, 2016, the Petitioner appeared before this court for sentencing. In his Position Paper filed prior to sentencing, the Petitioner lodged a single objection to the PSR. ECF No. 31. He objected to the allegation, in paragraph fifteen of the PSR, that he had sexually abused his daughter. Id. As recognized by the court and the parties, any ruling on this objection did not affect the Petitioner's Guidelines calculation for sentencing, and the allegation was not considered for purposes of sentencing. The court imposed a forty-year term of incarceration, and a lifetime term of supervised release. ECF Nos. 34, 37. The court entered a Restitution Order in the amount of $1,000 and a Consent Order of Forfeiture. ECF No. 37. The court did not impose a fine. Id. The Petitioner did not file an appeal.
On October 14, 2016, the Petitioner filed a Motion requesting leave to file a forty-five page memorandum in support of his § 2255 motion. ECF No. 40. On October 21, 2016, the court issued an Order Striking Pleadings for failure to serve the United States Attorney. ECF No. 41. The Petitioner corrected the defect, ECF No. 42, and the court granted the Motion on November 7, 2016. ECF No. 43. On November 14, 2016, thePetitioner filed pro se a "Motion to Vacate, Set Aside, or Correct Sentence," ECF No. 44, an accompanying Memorandum in Support, ECF No. 45, a Motion for Transcripts, ECF No. 46, and a Motion to Expand the Record, ECF No. 47. For the reasons set forth below, the court DENIES the Petitioner's motions.
The Petitioner's § 2255 Motion alleges several trial errors for which no contemporaneous objection was made, and no direct appeal was filed. Accordingly, he must show "cause excusing his procedural default" and "actual prejudice resulting from the errors." United States v. Frady, 456 U.S. 152, 168 (1982) (internal quotations omitted); see also United States v. Maybeck, 23 F.3d 888, 891 (4th Cir. 1994) (). In the absence of cause and prejudice, a challenger must demonstrate "that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack." United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999). The cause for a procedural default "must turn on something external to the defense," and an attempt to demonstrate a miscarriage of justice "must show actual innocence by clear and convincing evidence." Id. However, a claim asserting ineffective assistance of counsel is properly raised in a § 2255 motion and need not clear the proceduraldefault bar. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) () (internal quotations omitted).
To claim ineffective assistance of counsel, a petitioner must show, by a preponderance of the evidence, that (1) the attorney's performance was seriously deficient; and (2) such deficient performance prejudiced the petitioner by undermining the reliability of the judgment against him. Strickland v. Washington, 466 U.S. 668, 687 (1984).
To show deficient performance, counsel's actions or omissions must be measured against what "an objectively reasonable attorney would have done under the circumstances existing at the time of the representation." Savino v. Murray, 82 F.3d 593, 599 (4th Cir. 1996); see also Lawrence v. Branker, 517 F.3d 700, 708-09 (4th Cir. 2008). The court must attempt to "eliminate the distorting effects of hindsight," and instead "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
To demonstrate prejudice, a petitioner must show "a reasonable probability that, but for counsel's unprofessionalerrors, the result of the proceeding would have been different." Id. at 694. In doing so, he "must show that the error worked to his 'actual and substantial disadvantage,' not merely that the error created a 'possibility of prejudice.'" Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997) (quoting Murray v. Carrier, 477 U.S. 478, 494 (1986)). A failure to carry the burden of proof as to one prong precludes relief and relieves the court of the duty to consider the other. Strickland, 466 U.S. at 700. Because, in this case, the Petitioner was sentenced following his guilty plea, he must also demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1989).
To evaluate the likelihood that a defendant would actually have gone to trial, the court must assess "the likelihood of success of a particular investigation or strategy." Reid v....
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