Hamilton v. Warden, Case No. 17-CV-664-TCK-CDL

• Decision Date: 03 March 2021
• Docket Number: Case No. 17-CV-664-TCK-CDL
• Parties: PAUL OWEN HAMILTON, Petitioner, v. JIMMY MARTIN Warden, Respondent.
• Court: U.S. District Court — Northern District of Oklahoma

PAUL OWEN HAMILTON, Petitioner, v. JIMMY MARTIN Warden, Respondent.

Case No. 17-CV-664-TCK-CDL

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

March 3, 2021

OPINION AND ORDER

This matter comes before the Court on a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Petitioner Paul Owen Hamilton ("Hamilton") is a prisoner proceeding pro se. He is currently in the custody of the Oklahoma Department of Corrections and confined in the North Fork Correctional Center in Sayre, Oklahoma. He challenges his convictions for one count of distribution of child pornography and one count of aggravated possession of child pornography in Tulsa County District Court (Case No. CF-2014-171). For the reasons discussed below, the petition is DENIED.

Hamilton filed the instant Petition for Writ of Habeas Corpus (Dkt. 1) on December 11, 2017, challenging his convictions and sentences as in violation of federal law on the following grounds:

I. The evidence was insufficient to support a guilty verdict for distribution of child pornography (Count 1 of the information);

II. The evidence was insufficient to support a guilty verdict for aggravated possession of child pornography (Count 2 of the information);

III. The trial court misinterpreted the statute for aggravated possession in violation of Hamilton's constitutional rights; IV. The trial court handed down an excessive sentence;

V. Hamilton received ineffective assistance of appellate counsel;

VI. Hamilton received ineffective assistance of trial counsel;

VII. The Prosecution failed to disclose exculpatory evidence; and

VIII. Cumulative fundamental error denied him his constitutional rights.

PROCEDURAL BACKGROUND

After the jury rendered guilty verdicts on both counts of the information, the trial court sentenced Hamilton to ten (10) years imprisonment and a $15,000 fine on Count 1, and twenty-five (25) years and a $10,000 fine on Count 2, the sentences to run consecutively. The trial court suspended five years of the ten-year sentence on Count 1. Dkt. 8-8, pp. 129-36. With assistance of counsel appointed by the Oklahoma Indigent Defense System ("OIDS"), Hamilton filed a direct appeal to the Oklahoma Criminal Court of Appeals (Dkt. 7-1), raising the following errors:

I. The evidence was insufficient to prove beyond a reasonable doubt that Hamilton knowingly distributed child pornography;

II. The evidence was insufficient to prove beyond a reasonable doubt that Hamilton knowingly possessed child pornography;

III. The trial court misinterpreted Oklahoma's aggravated possession of child pornography statute; and

IV. The trial court handed down an excessive sentence.

The Oklahoma Criminal Court of Appeals ("OCCA") affirmed on June 1, 2016, finding no merit to Hamilton's four claims. Dkt. 7-3.

On September 12, 2016, Hamilton filed a pro se application for post-conviction relief in the Oklahoma trial court and motions seeking an evidentiary hearing, transcripts at public expense,additional briefing time, and submission of additional evidence. Hamilton raised the following issues in his application for post-conviction relief:

I. He received ineffective assistance of counsel in his direct appeal;

II. He received ineffective assistance of trial counsel;

III. The State failed to disclose exculpatory evidence to the defense;

IV. Fundamental error at trial denied him his constitutional rights;

V. He is entitled to transcripts at public expense; and

VI. He is entitled to an evidentiary hearing.

Dkt. 7-4, p. 3. The trial court denied Hamilton's application for post-conviction relief on April 26, 2017, finding no merit to his claim of ineffective assistance of appellate counsel. The trial court denied grounds II, III, and IV because Hamilton should have raised them on direct appeal. Thus, they were procedurally barred by the doctrine of waiver. Despite the procedural bar, the trial court discussed the exculpatory evidence claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The trial court found no Brady violation because although defense counsel was not given a copy of the compact disc ("CD") with the images alleged to contain child pornography, the images were available for counsel's review, and thus were not "withheld" within the meaning of Brady. The trial court further held that Hamilton made no showing that the images were exculpatory. The trial court also denied Hamilton's requests for additional transcripts and an evidentiary hearing. Dkt. 7-4.

Hamilton filed a pro se appeal of the trial court's denial of the application for post-conviction relief. Dkt. 7-5. The OCCA affirmed the denial on June 30, 2017. Dkt. 7-6. The OCCA upheld the trial court's determination that Hamilton had waived claims II, III, and IV by his failure to raise them on direct appeal. The OCCA also affirmed the denial of Hamilton'srequest for transcripts, finding he had made no showing of need or raised a genuine issue of material fact to support the free transcripts. The Court noted that Hamilton was not entitled to transcripts in order that "he may search the record to find an issue or material fact which might potentially serve as the basis for his claims of ineffective assistance of trial or appellate counsel." Id. at 4-5. The OCCA rejected Hamilton's argument that he should have been entitled to file a reply brief as there was no statutory or other authority supporting that claim. The OCCA also found no merit to Hamilton's ineffective assistance of appellate counsel claim. Relying on the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984), the OCCA found that Hamilton had made no showing of either deficient performance or resulting prejudice. The OCCA determined that Hamilton's claims were "conclusory, unprovable, or unspecific claims of ineffective assistance of appellate counsel" that were insufficient to demonstrate ineffective assistance. Id. at 6. The OCCA thus affirmed the trial court's denial of Hamilton's application for post-conviction relief in its entirety. Id.

FACTUAL BACKGROUND¹

A preliminary hearing was held on May 30, 2014, at which it was determined that probable cause existed to hold a trial on the information charging Hamilton with one count of distribution of child pornography (OKLA. STAT. tit. 21, § 1021.2 (2007)) and one count of aggravated possession of child pornography (OKLA. STAT. tit. 21 § 1040.12a (2009)). Dkt. 8-1. A pre-trial motion hearing was held on April 10, 2015. Dkt. 8-2. The trial judge heard argument regarding (1) Oklahoma's aggravated possession of child pornography statute, (2) testimony from the expert, Dr. Sarah Passmore, as to whether the photographs that would be introduced at trial did indeeddepict underage girls, and (3) testimony whether Hamilton was "in custody" during his interview with Sergeant Williams in an unmarked police vehicle. On the morning of trial, the trial judge ruled that the charge of aggravated possession was correct under Oklahoma law, and that Hamilton was not "in custody" for the interview; he was free to leave. As a result, the audio recording of the interview was admissible.

At trial, Detective Robert McCoy of the Tulsa Police Department ("TPD") testified at length regarding the procedures by which he discovered the images of child pornography at issue in this case and determined that they had come from Hamilton's computer. The TPD runs a law enforcement version BitTorrent, a peer-to-peer file-sharing software program, that monitors downloads of known child pornography. The software identifies the IP address from which the files are shared. On September 8, 2013, the TPD received downloads to its law enforcement version of BitTorrent with known images of child pornography. Detective McCoy confirmed the images were known child pornography (a cache of photos known as the Lolita series). Using the software, Detective McCoy determined the IP address from which the images were downloaded. With that information, McCoy was able to trace the IP address to that of a Cox Communications subscriber. In answer to a subsequent subpoena, Cox Communications identified the subscriber as Paul Hamilton. From that information, officers obtained Hamilton's physical address and prepared a search warrant.

Both Detective McCoy and Sergeant Malcolm Williams of the TPD cyber crimes unit executed the search warrant on October 30, 2013. They seized a desktop computer and several other data storage devices. Sergeant Williams testified that he interviewed Hamilton inside his unmarked police car. The interview was recorded. Hamilton stated that he was the only one to use his computer.

Detective McCoy later performed a forensic examination on the desktop computer seized from Hamilton's apartment and identified 241 images of child pornography stored in "unallocated" space on the hard drive. Detective McCoy testified that finding the images in unallocated space demonstrated that the images had been downloaded and deleted, a common practice among users of child pornography. In addition to the images, Detective McCoy found the following search terms: "teen solo," "cute little teen," and "pedo site." He also found BitTorrent file fragments with file names of "best six YO preteen showing pussy" and "underage teen models." On cross-examination, Detective McCoy testified that at the execution of the search warrant he determined that Hamilton's wireless router was password protected and thus not available for use by anyone who did not have the password. Dr. Sarah Passmore, a specialist in pediatric abuse and neglect, testified as to the ages of the girls depicted in the images on Hamilton's computer. She testified that she viewed 146 images that she determined were under age 18, and therefore child porn. The case was submitted to the jury after the close of the State's case. Hamilton did not testify at trial.

STANDARD OF REVIEW

Under 28 U.S.C. § 2254, federal district courts have jurisdiction to hear claims from state prisoners that their convictions...