VanDyck v. United States, CV-21-00399-TUC-CKJ

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
Writing for the CourtHonorable Cindy K. Jorgenson United States District Judge
PartiesRyan Galal VanDyck, Petitioner, v. United States of America, Respondent.
Docket NumberCV-21-00399-TUC-CKJ
Decision Date15 December 2022

Ryan Galal VanDyck, Petitioner,

United States of America, Respondent.

No. CV-21-00399-TUC-CKJ

United States District Court, D. Arizona

December 15, 2022


Honorable Cindy K. Jorgenson United States District Judge

On October 4, 2021, the Petitioner filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Petition). He raises two claims of constitutional error: 1) his trial counsel was ineffective for failing to raise a Fourth Amendment challenge to the police opening an America Online, Inc. (AOL) email attachment without a warrant, and 2) his appellate counsel was ineffective for failing to challenge the extension of a search warrant deadline because it was based on knowingly false statements.

On December 5, 2016, the Court sentenced the Petitioner, Defendant VanDyck, in CR 15-742-TUC-CKJ to concurrent sentences of 240 months imprisonment followed by lifetime supervised release for conspiracy to produce child pornography and 60 months imprisonment followed by lifetime supervised release for possession of child pornography. (Judgment of Commitment (Doc. 175)). Pretrial, the Court denied Petitioner's motion to suppress evidence obtained during a search of his home, including child pornography found


on electronic devices seized during the search. Thereafter, he agreed to a bench trial based on a stipulated record. The Court found him guilty on June 7, 2016.

On direct appeal, the Petitioner argued for the first time that police needed a warrant to open the AOL email attachment, and therefore, that the evidence against him should be suppressed as fruits of this poisonous tree. The appellate court denied relief because it found the Petitioner waived the challenge by failing to raise it at trial. On appeal, he did not challenge the warrant extension. His direct appeal was denied, and his conviction affirmed on July 15, 2019. The Supreme Court denied his petition for certiorari on October 5, 2020. He filed his habeas Petition within the one-year statute of limitation period provided under the Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 23255(f).

A. 28 U.S.C. § 2255: Motion to Vacate or Correct Sentence

Title 28 of the United States Code, Section 2255 provides for collateral review of Petitioner's sentence as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or law of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. A motion for such relief may be made at any time

28 U.S.C. § 2255.

A district court will summarily dismiss a § 2255 petition "[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the Petitioner is not entitled to relief." Rule 4(b), Rules Governing § 2255 Actions. The district court need not hold an evidentiary hearing when the Petitioner's allegations, viewed against the record, either fail to state a claim for relief or are patently frivolous. Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985).

Generally, “claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003); see also United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (“A § 2255 movant procedurally defaults his claims by not raising them on direct appeal and


not showing cause and prejudice or actual innocence in response to the default.”). Claims of ineffective assistance of counsel are, however, an exception and may be raised on collateral review even if they were not raised on direct appeal. See Massaro, 538 U.S. at 504 (“[A]n ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether the petitioner could have raised the claim on direct appeal.”); United States v. Jackson, 21 F.4th 1205, 1212 (2022) (ineffective assistance of counsel claims may be brought in collateral proceedings under § 2255.”)

B. Ineffective Assistance of Counsel Standard of Review

The Supreme Court enunciated a two-prong standard for judging a criminal defendant's contention that the Constitution requires a conviction to be set aside because counsel's assistance at trial was ineffective in Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. To this end, the defendant must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at 690. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 688-90. Second, the defendant must affirmatively prove prejudice. Id. at 691-92. He must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

The court need not address both Strickland requirements if the petitioner makes an insufficient showing regarding just one. Id. at 697 (explaining: “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.”); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) (stating: “[f]ailure to satisfy either prong of the Strickland test obviates the need to consider the other.”)


C. The Warrant and Warrantless Searches

Both of the ineffective assistance of counsel claims challenge alleged searches by Tucson Police officers that occurred when, without a warrant, police officers opened the email attachment that was sent by AOL to the National Center for Missing and Exploited Children (NCMEC), a private organization, which in turn secured Petitioner's identity and sent a Cybertip report with a copy of the image and notation that it “appears to contain child pornography” to Tucson police. Police opened the email attachment without a warrant based on the third-party doctrine, which provides:

[A] person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. [735, 743-44 (1979)]. That remains true “even if the information is revealed on the assumption that it will be used only for a limited purpose.” United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). As a result, the Government is typically free to obtain such information from the recipient without triggering Fourth Amendment protections.

Carpenter v. United States, 138 S.Ct. 2206, 2216 (2018).

Detective Holewinski obtained a search warrant for Petitioner's home, including any electronic devices based on his affidavit which stated in pertinent part that AOL had made a Cybertip report to NCMEC “in reference to one of its users sending an image depicting child sexual abuse to another email address.” The affidavit described the image attached to the email as: “sexually exploitive in nature.” Detective Holewinski described the filename 266211007.jpeg as: “an image file of a prepubescent male child who appears to be between 7 and 12 years of age. The boy is wearing a red shirt and is wearing a pair of boxer shorts that are pulled down to his upper thighs. The child is lying back and his erect penis is exposed. The focus of the image is on the child's penis.” The affidavit reflects that the police had verified the tip as “in fact” depicting a child in a state of exploitive exhibition” and secured thereafter the comcast subscriber information which reflected the subscriber was a landscape company owned by the Petitioner. The Court accepts Petitioner's argument that information provided in the affidavit, without the description of the email attachment after it was viewed by Holewinski, would not have been enough to


secure the warrant to search Petitioner's home and electronic devices. (Motion at Ex. 3: Warrant and Affidavit (Doc. 1-2) at 44-47.)

The original warrant was to be executed on September 4, 2014. Police amended the warrant based on an affidavit attesting that Petitioner was out of town and would be back in town the week of September 8, 2014. Petitioner argues that he was home on the 4th, therefore, the warrant affidavit falsely stated that he would not be home until the 8th.

D. Ineffective Assistance of Trial Counsel

1. Carpenter v. United States, 138 U.S. 2206 (2018): Third Party Doctrine

When an individual intends to preserve something as private, and this expectation of privacy is one that society is prepared to recognize as reasonable, then intrusion into that private sphere by the government is a search under the Fourth Amendment and requires a warrant. Id. at 2213. “‘[A] person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.'” Id. at 2216 (quoting Smith, 442 U.S. at 743-44). This is true “‘even if the information is revealed on the assumption that it will be used only for a limited purpose.'” Id. (quoting Miller, 425 U.S. at 443).

During the pendency of his direct appeal, the Supreme Court issued Carpenter, upon which Petitioner relies to argue that the third-party doctrine will not support the warrantless search of the email attachment by police. States v. VanDyck, 776 Fed.Appx. 495, 496-97 (9th Cir. 2019).


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