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United States v. Storm

United States District Court, D. Oregon

April 6, 2017

LOGAN STORM, Petitioner-Defendant.

          Billy 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.

          Logan Storm, Pro se Petitioner-Defendant.


          Michael H. Simon, United States District Judge

         Before 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.[1]For the following reasons, the motion is DENIED.


         Section 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.").

         Under § 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).

         If a 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 omitted).


         Storm 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.

         After 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.

         During 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.

         Shortly 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 (821:22-823:2).

         On the 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 (334:9-20).

         A state 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.

         On 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.

         The 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.

         On 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).

         After 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, ECF 23.

         Storm 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 204.


         Storm 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.

         Liberally 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.

         A. Ineffective Assistance of Counsel (Ground 1 and Motion 2[2] Ground 1)

         Storm 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.

         Under 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).

         Under 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 ...

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