Morrison v. Warden

• Decision Date: 19 November 2015
• Docket Number: CASE NO. 2:14-CV-00312
• Parties: JAMES F. MORRISON, Petitioner, v. WARDEN, RICHLAND CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JAMES F. MORRISON, Petitioner, v. WARDEN, RICHLAND CORRECTIONAL INSTITUTION,¹ Respondent.

CASE NO. 2:14-CV-00312

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

November 19, 2015

JUDGE ALGENON L. MARBLEY

Magistrate Judge Elizabeth P. Deavers

ORDER and REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Amended Petition (ECF No. 6), Respondent's Return of Writ, Response to Amended Petition, and Amended Answer (ECF Nos. 5, 7, 10), Petitioner's Traverse (ECF No. 13), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's request for an evidentiary hearing and the appointment of counsel (see ECF No. 9) are DENIED.

Facts and Procedural History

The Ohio Fifth District Court of Appeals summarized the facts and procedural history of this case as follows:

On June 3, 2010,² the Delaware County Grand Jury returned a thirty-six count indictment against Appellant James F. Morrison. Appellant was charged with six counts of Pandering SexuallyOriented Material Involving a Minor, in violation of R.C. § 2907.322(A) (1), for creating and reproducing images of child rape on his computer by downloading them through the Limewire file sharing network; nineteen counts of Illegal Use of a Minor in Nudity Orientated Material, in violation of R.C. § 2907.323(A) (3), for creating and reproducing lewd images of children in a state of nudity on his computer by downloading them through the Limewire file sharing network; eight counts of Attempted Pandering Sexually Oriented Material Involving a Minor, in violation of R.C. § 2907.322(A) (1), for attempting to create and reproduce images of child rape on his computer though the Limewire file sharing network; one count of Identity Fraud and Falsification, in violation of R.C. § 2913.49(B) (2) and § 2921.13(A) (3), for providing a false name and social security number to law enforcement during the execution of the search warrant of his residence; and one count of Illegal Use of a Minor in Nudity Oriented Material, in violation of R.C. § 2907.323(A) (2), for taking a lewd photograph of his underage daughter in a state of nudity.

On May 7, 2012, pursuant to a plea agreement, Appellant entered an Alford plea (North Carolina v. Alford, 400 U.S. 25 (1970)) to only four counts of Attempted Pandering Sexually Oriented Matter Involving a Minor, a third-degree felony, and the remaining counts were dismissed. (See May 8, 2012, Plea Agreement and May 15, 2012, Judgment Entry on Guilty Pleas).³

In its May 15, 2012, Judgment Entry on Guilty Pleas, the trial court stated:

"Based on the facts of this case, the Defendant was advised that he had a choice of going to trial and, if convicted, receiving sentences totaling over One Hundred (100) years or, if he accepted the plea offer from the State of Ohio he could receive not more than Twelve (12) years in prison. The Court then ascertained that the Defendant understood the same and with such understanding still wished to enter pleas of Guilty, as contemplated by North Carolina v. Alford, supra, to the crimes of Attempted Pandering Sexually Oriented Matter Involving a Minor, as set forth in Counts Twenty-Six, Twenty-Seven, Twenty-Eight, and Twenty-Nine of the Indictment." (5/15/12 J.E. at 4).

At the beginning of the sentencing hearing on July 27, 2012, the trial court first heard arguments on the issue of merger. In support of his argument that some or all of the offenses to which he pled guilty must merge, Appellant presented the testimony of computer forensic expert C. Matthew Curtin. [FN1]

FN1. Mr. Curtin had also filed an Affidavit with the court.

Mr. Curtin offered extensive background information on peer-to peer-file sharing and computer data storage. During his testimony, Mr. Curtin explained that when someone uses the Limewire program, they are presented with a search box. The user then types a search term in the box and the Limewire program searches the files of other users for these search term or terms. (T. at 25). Any files with names containing those search terms then appear in a list. (T. at 26). The user may then select files from the list either by selecting individual files or selecting a range of files. Id. The user is then able to click the download button to begin the download process. (T. at 27).

Files can be downloaded through the Limewire software by three different methods: (1) a user can highlight a single file listed in the search results and then press the download one time, thereby creating a single file, in a distinct location, on the hard drive; (2) a user can hold down the control key on the keyboard and then use the mouse to select any number of individual files in the search results; the user would then press the download button once and multiple files would be created on the hard drive in separate and distinct locations; or (3) a user can hold down the shift key on the keyboard to select two separate files on the search results list, thereby selecting any files on the list appearing between the two selected files; the user would then press the download button once and multiple files would be created on the hard drive in separate and distinct locations. (T. at 43-44, 46-47).

Curtin went on to explain that when the download button is depressed, an "empty" file is created on the computer, which is analogous to a hanging paper file folder into which papers can later be placed. (T. at 17).

At that point, the files would go into a "holding pattern" while Limewire looked for available "download slots" or intervals when it was possible to transfer a file between the computers. Limewire would then transfer a file each time a new download slot cameopen until all the selected files were transferred. (T. at 11-15, 21-22, 44-48, 60-61, 63-64).

Mr. Curtin reviewed the computer data and came to three conclusions: First, a Limewire user cannot know the content of a file until it is actually downloaded because Limewire did not have a preview function for photos. Second, the files Mr. Morrison attempted to download were actually empty on his computer, meaning that they were merely placeholder files and the download was never completed. (T. at 10-12, 16-18). Third, he concluded that the forensic evidence was consistent with a single download: Appellant could have downloaded all four files with a single act of clicking the download button once. Id.

In this case, each "empty" file was given a separate name and stored at a separate physical location on Appellant's hard drive. (T. at 31-32). Each of these files was individually identified in the Indictment and Bill of Particulars furnished to Appellant. These "placeholder files", which would ultimately become images of child pornography when the transfer of data was complete, also have separate and distinct creation times. (T. at 30-31).

Curtin then testified that while the forensic evidence in this case is consistent with a "single act" of downloading (selecting multiple files and then pressing the download button once), it is also consistent with multiple acts of downloading (selecting individual files and pressing the download button multiple times). (T. at 36). Curtin explained, however, that prior to a user being able to download multiple files with a single click of the Limewire download button, separate actions and decisions on the part of the user are required. (T. at 45).

Curtin further explained that while it was possible in Limewire to separately download each file by selecting a file, clicking download, selecting another file, clicking download, etc., the user would need sufficient time between each download. In that regard, the evidence showed that the files were downloaded at 1:06:28 a.m., 1:24:42 a.m., 1:25:27 a.m., and 1:25:28 a.m., respectively. Thus, Appellant only had 45 seconds between the second and third files, and merely one second between the third and fourth files, making separate downloads highly unlikely. (T. at 36-39, 63, 68-72).

Curtin explained that there was nothing in the Limewire data which would allow him to know which one of the three methodswere used in any given case; forensically, it is an unknowable fact. (T. at 47-48).

While it cannot be forensically determined how an individual used Limewire to download files in any case, Curtin testified that where the download of multiple files is initiated with a single mouse-click of the download button, the user would have had to have previously decided to download multiple items at one time. (T. at 44).

Curtin further testified that even in the case where the download button is depressed a single time, it takes multiple, affirmative acts on the part of the user to select multiple files to be downloaded. (T. at 44). Curtin then repeated that, in addition to requiring multiple affirmative acts to download multiple files, it also requires a conscious choice to select multiple files from the search list—as opposed to a single file. (T. at 45).

Assisting the State in offering a visual demonstration of these concepts to the trial court, Curtin explained that the method of selecting multiple files through the Limewire software is analogous to selecting files though the Windows Explorer interface (the software in Windows that lets you browse through "My Documents" and other locations on a computer). (T. at 45-48). An overhead projector was used to demonstrate each of the possible methods of downloading files. Curtin showed the trial court how multiple acts are required to select multiple files. (T. at 46).

After listening to the testimony of Mr. Curtin, and considering the arguments of counsel, the trial court concluded that each count was the product of a separate act, and occurred with a separate animus. (T. at 91). The trial court then heard statements from counsel, one victim's mother, and Appellant.

The

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