Ortiz-Graulau v. United States

• Decision Date: 20 June 2014
• Docket Number: No. 12–2188.,12–2188.
• Citation: 756 F.3d 12
• Court: U.S. Court of Appeals — First Circuit
• Parties: Harold ORTIZ–GRAULAU, Petitioner, v. UNITED STATES of America, Respondent.

756 F.3d 12

Harold ORTIZ–GRAULAU, Petitioner,

v.UNITED STATES of America, Respondent.

No. 12–2188.

United States Court of Appeals, First Circuit.

June 20, 2014.

Rachel Brill, for petitioner.

John A. Mathews II, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Velez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for respondent.

Before HOWARD, SELYA and LIPEZ, Circuit Judges.

HOWARD, Circuit Judge.

Petitioner Harold Ortiz–Graulau (“Ortiz”), currently serving a 180–month sentence following his federal child pornography conviction, appeals the district court's denial of his 28 U.S.C. § 2255 petition for collateral relief. After review, we affirm the district court's denial of the petition.

I. Factual and Procedural Background

In 2005, a federal grand jury returned a two-count indictment charging Ortiz with possessing sexually explicit photographs of a minor, 18 U.S.C. § 2252(a)(4)(B), and exploiting a minor for the purpose of producing the photographs, 18 U.S.C. § 2251(a). The child pornography at issuehere consists of sexually explicit photographs of a female referred to in the record as “SMN.” ¹ Ortiz and SMN were living together and were in a lawful, consensual relationship. At the time that the photographs were taken, SMN was fourteen years old and Ortiz was thirty-eight. The age of consent for sexual relations in Puerto Rico during the relevant period was fourteen. ² When Ortiz and SMN went to a local Walgreens to develop rolls of film, employees alerted authorities to what they believed were sexually explicit photographs of a minor. A subsequent search of Ortiz's home revealed over fifty sexually explicit photographs of SMN. Upon Ortiz's arrest, he admitted that he had a sexual relationship with SMN and that he was aware that she was fourteen. Prior to trial, Ortiz pled guilty to possessing sexually explicit photographs of a minor. He went to trial on the production count.

The production statute criminalizes the conduct of a person who “employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” 18 U.S.C. § 2251(a). The statute defines a minor as anyone under eighteen. Id. § 2256(1).

Before trial, Ortiz filed a motion to dismiss the charges as violating his right to privacy due to the “marital-like” relationship between Ortiz and SMN. The district court denied the motion, largely on the grounds that Ortiz and SMN were not formally married, there is no common law marriage in Puerto Rico, and they could not have been married without SMN's parents' consent. The government filed a motion in limine seeking to prohibit Ortiz from presenting any evidence making reference to a consensual or marital-like relationship between Ortiz and SMN or evidence related to Puerto Rico law governing the age of consent. The district court summarily granted the motion in limine over Ortiz's objection. Ortiz submitted a written proffer explaining that, but for the ruling on the motion in limine, he would have presented six witnesses, including neighbors and family of Ortiz and of SMN, to testify that Ortiz and SMN were cohabiting for approximately six months and that Ortiz introduced SMN to family and friends as if she were his wife. He also noted that he would have introduced the fact that the age of consent in Puerto Rico at the time was fourteen. Ortiz received permission from the court to subpoena SMN to proffer her testimony outside the presence of the jury only for the purpose of preserving the record for appeal.

SMN's testimony was brief and fragmentary. Even so, the testimony confirmed that the relationship was consensual. Upon questioning from defense counsel, she characterized the relationship as that of a “normal couple” and she described personally wanting the pictures. She testified that she was the one who “went to” Ortiz about taking the photos, and that the photographs were taken for no particular purpose. When defense counsel asked SMN whether she had been coerced, enticed, induced, persuaded, used or employed to take the pictures, SMN responded “no” to each. SMN's testimony also confirmed that Ortiz took many of the sexually explicit photos of her. Ortiz and the district court both reiterated that the proffer was merely to preserve the record for appeal, given the court's prior ruling on the motion in limine that evidence of a consensual relationship was irrelevant. After the proffer, Ortiz did not make any argument in favor of the admissibility of SMN's testimony.

Ortiz timely appealed his conviction, challenging the sufficiency of the evidence and various alleged errors at trial and in sentencing. We affirmed Ortiz's conviction and sentence in United States v. Ortiz–Graulau (“Ortiz I”), 526 F.3d 16 (1st Cir.2008). We found the evidence at trial to be sufficient. At the time, we declined to rule on the precise definition of the term “use” in the statute, although we held that the term “use” included at least instigation. We found that, given the age difference between Ortiz and SMN and Ortiz's participation in the sexual contact and photography, a jury could have reasonably inferred that Ortiz “instigated at least some of the conduct.” Ortiz I, 526 F.3d at 19. We also held that the number of photographs taken and the poses in the photographs were sufficient evidence to support the conclusion that some of the conduct occurred in order to make photographs.

Although we held that the evidence at trial was legally sufficient to support the verdict, we expressed concerns about the district court's reasoning in excluding SMN's testimony in reliance on the prior ruling on the motion in limine. We noted that while consent was not a legal defense under the statute, “SMN was perfectly entitled to testify as to facts bearing directly on a specific statutory element, namely, whether Ortiz ‘employ[ed], use[d], persuade[d], induce[d], entice[d], or coerce[d]’ her in the conduct that was then photographed,” including “factual information about who suggested the photographs and the conduct being photographed and related background.” Ortiz I, 526 F.3d at 20. However, because this argument was not pursued on appeal, we suggested that it was properly left for collateral attack under 28 U.S.C. § 2255 with the assistance of new counsel. This petition followed.

In this petition, Ortiz collaterally attacks his conviction on four grounds: (1) he received ineffective assistance of counsel, (2) the trial court violated his Sixth Amendment right to compulsory process and his Fifth Amendment right to due process by not allowing him to present a defense, (3) the conduct underlying his conviction was constitutionally protected, and (4) he is actually innocent. The district court rejected Ortiz's petition. It found that Ortiz's counsel had not been deficient at trial, noting that counsel filed several motions on Ortiz's behalf and made efforts to include SMN's testimony. The district court held that even if counsel had been deficient on appeal in not challenging the district court's exclusion of SMN's testimony, this deficiency did not prejudice the outcome. The district court, citing the reasoning in United States v. Sirois, 87 F.3d 34, 41 (2d Cir.1996), interpreted the term “use” in the production statute as meaning “to employ or avail oneself of the use of a minor in order to create a visual depiction of sexually explicit conduct.” Ortiz–Graulau v. United States, CIV. 09–1387 JAG, 2012 WL 3308877, at *8 (D.P.R. Aug. 13, 2012). Given this meaning of “use,” the district court found no prejudice. The district court rejected Ortiz's other due process claims and granted a certificate of appealability as to all four issues.

II. Analysis

A person serving a sentence in federal custody may petition the sentencing court for collateral relief to “vacate, set aside or correct the sentence” as being in violation of the Constitution or federal law. 28 U.S.C. § 2255. On appeal from the denial of a petition for relief pursuant to 28 U.S.C. § 2255, we review the district court's legal determinations de novo and findings of fact for clear error. Parsley v. United States, 604 F.3d 667, 671 (1st Cir.2010).

A. Ineffective Assistance of Counsel

In order successfully to claim ineffective assistance of counsel, Ortiz must show that his attorney's performance was deficient, and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance must fall below “an objective standard of reasonableness.” Id. at 688; see also Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir.2010). In determining prejudice, we look to whether “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. If a defendant falls short in showing either deficiency or prejudice, the claim fails. See Companonio v. O'Brien, 672 F.3d 101, 110 (1st Cir.2012). We need not go through the two prongs of the ineffectiveness claim in a particular order. Where it is more efficient to dispose of an ineffectiveness claim on prejudice grounds, a court should follow that course. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. We do so here.

The statute at issue applies to a person who “employs, uses, persuades, induces, entices, or coerces” a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct. 18 U.S.C. § 2251(a). In Ortiz I, we noted that we were concerned that SMN's excluded testimony may have been relevant to whether or how Ortiz's conduct was encompassed by each of these statutory terms. 526 F.3d at 20–21. Our inquiry in...