United States District Court, D. Oregon
J. Williams, United States Attorney, and Jane Shoemaker and
Gary Sussman, Assistant United States Attorneys, United
States Attorney's Office, District of Oregon, Of
Attorneys for United States of America.
Storm, Pro se Petitioner-Defendant.
OPINION AND ORDER
Michael H. Simon, United States District Judge
the Court is Petitioner-Defendant Logan Storm's
("Storm") motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence. ECF
204.For the following reasons, the motion is
2255 permits a prisoner in custody under sentence to move the
court that imposed the sentence to vacate, set aside, or
correct the sentence on the ground that:
[T]he sentence was imposed in violation of the Constitution
or laws 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 ....
28 U.S.C. § 2255(a). To warrant relief, a petitioner
must demonstrate that an error of constitutional magnitude
had a substantial and injurious effect or influence on the
guilty plea or the jury's verdict. Brechtv.
Abrahamson, 507 U.S. 619, 637 (1993); see also
United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir.
2003) ("We hold now that Brechf s harmless
error standard applies to habeas cases under section 2255,
just as it does to those under section 2254.").
§ 2255, "a district court must grant a hearing to
determine the validity of a petition brought under that
section '[u]nless the motions and the files and records
of the case conclusively show that the prisoner is
entitled to no relief" United States v.
Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (emphasis
in original) (quoting § 2255). In determining whether a
§ 2255 motion requires a hearing, "[t]he standard
essentially is whether the movant has made specific factual
allegations that, if true, state a claim on which relief
could be granted." United States v. Withers,
638 F.3d 1055, 1062 (9th Cir. 2011) (quotation marks omitted)
(alteration in original). A district court may dismiss a
§ 2255 motion based on a facial review of the record
"only if the allegations in the motion, when viewed
against the record, do not give rise to a claim for relief or
are 'palpably incredible or patently
frivolous.'" Id. at 1062-63 (quoting
United States v. Schaflander, 743 F.2d 714, 717 (9th
Cir. 1984)). Conclusory statements in a § 2255 motion
are insufficient to require a hearing. United States v.
Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).
court denies a petition, the court may issue a certificate of
appealability if "jurists of reason could disagree with
the district court's resolution of [the petitioner's]
constitutional claims or [if] jurists could conclude the
issues presented are adequate to deserve encouragement to
proceed further." Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). Although the petitioner is not required
to prove the merits of his case for the court to issue a
certificate of appealability, the petitioner must demonstrate
"something more than the absence of frivolity or the
existence of mere good faith on his or her part."
Miller-El, 537 U.S. at 338 (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 (1983)) (quotation marks
was an eighth grade teacher who taught at a middle school in
Beaverton, Oregon. ECF 26-7 at 2. On July 25, 2010,
Storm's girlfriend, Amy Anderton ("Anderton"),
reported to the Portland Police that she had found child
pornography on Storm's laptop computer and on a
"thumb drive" that was hidden in a box. ECF 26-7 at
2-4. At that time, Storm and Anderton had been living
together for approximately one month. ECF 26-7 at 3. Anderton
reported recently seeing several files on both devices that
contained pornographic images of young girls. ECF 26-7 at
3-4. When Anderton discovered the images, she showed some of
them to her housemate, Michael Neilson ("Nielson"),
to have a witness. ECF 26-7 at 3, 5. Anderton did not contact
the police until she left for a trip to Salt Lake City a few
days later. ECF 26-7 at 3.
Anderton's report, police spoke with Neilson, who
confirmed Anderton's story. ECF 26-7 at 5. Detective
Timothy Snider prepared a search warrant, and a judge
authorized the warrant later that night over the telephone.
ECF 26-7 at 8-12; ECF 26-18 at 4. Police executed the warrant
in the early hours of July 26, 2010. ECF 54 at 17:3-5.
Neilson let police detectives into the house and directed
them to Anderton and Storm's bedroom where Storm was
sleeping. ECF 54 at 16:23-17:18. Detective Snider escorted
Storm to the living room and read aloud the search warrant.
ECF 54 at 18:1-10, 18:24-19:3. Detective Snider also read
Storm his Miranda rights, even though police were
not planning on arresting Storm. ECF 54 at 19:19-20:6. Storm
invoked his right to remain silent and his right to an
attorney. ECF 54 at 26:10-21.
their initial search, police detectives found and seized
Storm's white Apple laptop computer ("laptop"),
a "Geek Squad" brand thumb drive ("GS
drive") located underneath the laptop, and a cardboard
gift box that matched Anderton's description of where the
thumb drive had been hidden. ECF 54 at 29:4-13, 30:2-7.
Detectives then prepared a property receipt that was shown to
Storm. ECF 54 at 30:12-14, 31:2-4. Storm asked about one of
the items on the receipt, a "BLK 4G thumb drive found
under item 2." ECF 54 at 35:18-36:10. When officers
explained it was the GS drive that they had found under the
laptop, Storm claimed the GS drive belonged to Anderton. ECF
54 at 36:7-20. Storm then told police that his thumb drive
was in his backpack. ECF 54 at 36:21-37:1. Detective Snider
re-searched the backpack and found a "Lexar" brand
thumb drive ("Lexar drive"), which was then seized
as well. ECF 54 at 37:8-17. The police detectives then left.
ECF 54 at 83:2-4.
after the search, Storm left the country without notifying
either his son or his son's mother. ECF 196 at 179
(816:5-22). Storm also sent an email to his supervising
school principal in which he resigned from his position and
stated that he would likely not be returning due to "an
international legal situation." ECF 196 at 184-186
morning of July 26, 2010, Detective Snider and his team
attempted to preview the contents of the laptop and GS drive,
but had only limited success. ECF 194 at 39-40
(103:14-104:22). The devices were then taken to the Northwest
Regional Computer Forensics Laboratory ("RCFL") for
a forensic preview. ECF 194 at 40-41 (104:23-105:16). RCFL
personnel were able to open some of the files on the laptop
and GS drive, where they found images of child pornography.
ECF 194 at 41-42 (105:17-106:03). RCFL personnel also
determined that the GS drive had been plugged into the laptop
only a few hours before police executed the search warrant.
ECF 194 at 42 (106:4-9), 261-62 (325:21-326:5). The devices
were formally submitted to the RCFL for forensic analysis the
next day. ECF 194 at 42 (106:10-22). The RCFL first made
forensic images of all three devices. ECF 194 at 264-65
(328:6-329:21). During forensic analysis of the laptop and GS
drive, RCFL found several PowerPoint files containing
pornographic images of children. ECF 194 at 269-70
(333:12-334:8). From a cursory review, RCFL found no
PowerPoint files on the Lexar drive and thus did not conduct
any further examinations on that drive. ECF 194 at 270
grand jury indicted Storm on 30 charges of violating Oregon
Revised Statutes § 163.684, Encouraging Child Sexual
Abuse in the First Degree. ECF 26-21. Storm was arrested upon
his return to the United States on February 19, 2011. ECF 196
at 188-89 (825:22-826:1-6). Storm's state trial began in
September 2011. See ECF 26-22. After the prosecution
rested its case, Storm moved for judgment of acquittal based
on venue. ECF 26-23 at 10:25-11:1. Specifically, Storm argued
that the State had presented insufficient evidence to prove
beyond a reasonable doubt that the images were copied to
Storm's devices in Multnomah County. ECF 26-23 at
11:14-18. The State requested a brief recess to file a
response brief, and its request was granted. ECF 26-24 at
7:14-21, 25:5-15. The State then consulted with the United
States Attorney's Office, which agreed to prosecute Storm
under federal law. See ECF 26-4 at 2:25-3:8. Upon
returning to court, the State moved to dismiss its
indictment. ECF 26-4 at 2:25-3:8. The motion was granted, and
the State delivered all of its evidence against Storm to
federal agents from the U.S. Department of Homeland Security.
ECF 26-9 at 13.
September 20, 2011, a federal grand jury indicted Storm on
one count of possession of child pornography, in violation of
18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). ECF 1.
Federal agents obtained new search warrants and conducted new
searches on all the seized devices. ECF 26-10; ECF 26-11; ECF
26-12; ECF 195 at 118-19 (486:23-487:9), 128-29
(496:22-497:3). Agent Jim Mooney found additional evidence
not uncovered by the RCFL, which was located mostly in the
unallocated space and hidden files of the devices. ECF 195 at
133 (501:10-23), 136 (504:5-10), 137-38 (505:25-506:5). The
additional evidence found by Agent Mooney further
demonstrated a sexual interest in children, and included
child erotica, cartoons of child pornography, and PowerPoint
files containing child pornography placed next to
non-pornographic pictures of Storm and his middle school
students. ECF 195 at 133 (501:14-16), 135-36(503:19-504:7),
140(508:7-12), 141 (509:3-12). Agent Mooney also found
various non-pornographic documents and photographs that were
stored on all three devices, and evidence that one PowerPoint
file containing child pornography had been accessed using all
three devices. ECF 195 at 139 (507:19-25), 140 (508:13-22);
ECF 26-13 at 16.
Court presided over Storm's federal jury trial, where
Storm was represented by Assistant Federal Public Defenders
Gerald Needham and Amy Baggio. ECF 5; ECF 8. Defense counsel
filed several preliminary motions, including a motion to
dismiss the indictment for violation of the Double Jeopardy
Clause and a motion to suppress statements obtained in
violation of Miranda. ECF 22; ECF 23. The Court
denied these motions. ECF 53. Defense counsel also made
several motions in limine and moved for discovery of
Agent Mooney's forensic reports and the contents of
Nielson's cellular telephone. ECF 65; ECF 94; ECF 120.
These motions were also denied. ECF 79; ECF 121.
January 23, 2013, Storm's federal trial began. ECF 193.
Defense counsel presented the jury with Storm's theories
of the case: Nielson had planted the child pornography on
Storm's computer and thumb drives because Nielson wanted
Storm's girlfriend, Anderton, and there were serious
problems with the government's forensic evidence. ECF 193
at 51:17-54:1. Both Anderton and Nielson testified at trial,
and defense counsel cross-examined them extensively. ECF 194
at 156-69 (220-233), 200-23 (264-287). Defense counsel also
thoroughly cross-examined state and federal agents about
their investigation and handling of evidence. ECF 194 at
44-71 (108-35), 274-91 (338-55); ECF 195 at 23-29 (391-97),
71-87 (439-55); ECF 196 at 7-72 (644-709). On February 19,
2011, the jury found Storm guilty of possession of child
pornography. ECF 179 at 3 (960:22-23).
receiving the verdict, the Court (through a different judge)
allowed Storm to remain out of custody pending a further
detention hearing and also placed him on electronic
monitoring. ECF 179 at 11-12 (968:13-969:18). That night,
Storm removed his monitoring device and fled to Mexico. ECF
159 at ¶¶ 36-37. Shortly thereafter, Storm was
indicted on one count of failing to appear, in violation of
18 U.S.C. § 3146(a) and (b)(1)(A)(ii). Docket
3:13-cr-048-SI, ECF 1. Several months later, Mexican
authorities arrested Storm and deported him back to the
United States. ECF 169 at ¶¶ 37, 41. On June 26,
2013, Storm pleaded guilty to the charge of failure to
appear. Docket 3:13-cr-048-SI, ECF 15. On September 10, 2013,
the Court sentenced Storm for both convictions. The Court
imposed a total of eight years in prison, followed by ten
years of supervised release. ECF 166; Docket 3:13-cr-048-SI,
timely filed a notice of appeal in both cases, and Terry
Kolkey represented Storm on appeal. ECF 169; ECF 170; Docket
3:13-cr-048-SI, ECF 27. Storm challenged the
constitutionality of the state and federal search warrants,
the terms of supervised release imposed in the failure to
appear case, and the Court's ruling on a motion to
preclude images of child pornography from being published to
the jury. United States v. Logan Storm, 612
F.App'x 445 (9th Cir. 2015). On July, 28, 2015, the Ninth
Circuit affirmed Storm's convictions and sentence.
Id. Storm's petition for rehearing or en
banc review was denied. ECF 201. On July 26, 2016, Storm
filed this motion pro se to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. ECF
petitions to vacate, set aside, or correct his sentence on
several grounds. A court must liberally construe the filings
of a pro se petitioner and afford the petitioner the
benefit of any reasonable doubt. Hebbe v. Pliler,
627 F.3d 338, 342 (9th Cir. 2010). Storm's filings are
not a model of clarity, but the Court endeavors to ascertain
the grounds for Storm's motion. In so doing, the Court
agrees with most of the government's characterizations of
Storm's claims. See ECF 219.
construing Storm's filings, he asserts that he is due
relief on the following grounds: (A) his trial counsel and
appellate counsel provided ineffective assistance; (B) the
prosecution committed several violations of Brady v.
Maryland, 373 U.S. 83 (1963); (C) several errors were
made relating to the interstate nexus element of a federal
possession of child pornography violation; (D) two
potentially biased jurors were not excused; (E) Storm was the
victim of a vindictive prosecution; (F) Strom is actually
innocent, a freestanding claim; (G) Storm's conviction
and sentence for failing to appear are invalid because they
rely on his possession conviction; (H) the government
violated Storm's Miranda rights and right
against Double Jeopardy; and (I) the Ninth Circuit erred in
resolving Storm's direct appeal.
Ineffective Assistance of Counsel (Ground 1 and Motion
2 Ground 1)
argues that he received ineffective assistance from both his
trial and appellate counsel. The leading federal case
governing claims of ineffective assistance of counsel is
Strickland v. Washington, 466 U.S. 668, 687-88
(1984). Under Strickland, a challenger must prove
that: (1) counsel's performance was deficient; and (2)
there is a reasonable probability that, but for the deficient
performance, the result of the proceeding would have been
different. Id. at 688.
the first Strickland prong, in order for
counsel's performance to be constitutionally deficient,
it must fall below an objective standard of reasonableness.
Id. A "court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action 'might be considered sound trial
strategy.'" Id. at 689 (quotingMichel
v. Louisiana, 350 U.S. 91, 101 (1955)). "The
challenger's burden is to show 'that counsel made
errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth
Amendment.'" Harrington v. Richter, 131
S.Ct. 770, 787 (2011) (quoting Strickland, 466 U.S.
at 687). "[S]trategic choices made after thorough
investigation of law and facts" by attorneys "are
virtually unchallengeable." Miles v. Ryan, 713
F.3d 477, 490 (9th Cir. 2012) (quoting Strickland,
466 U.S. at 690-91).
the second Strickland prong, a petitioner must
establish that he or she was prejudiced by the ineffective
counsel. Strickland, 466 U.S. at 694. Prejudice is
established when there is "a probability sufficient to
undermine confidence in the outcome." Id.
Because a convicted defendant must satisfy both prongs of the
Strickland test, failure to establish either
deficient performance or prejudice makes it unnecessary to
examine the other prong. See Strickland, 466 U.S. at
697 (explaining that it is not necessary for a court
evaluating the merits of an ineffective assistance claim to
analyze the ...