Jones v. United States

• Court: District Court, D. Arizona
• Decided: February 24, 2025
• Docket: 3:24-cv-08076
• Status: Unknown

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 United States of America, No. CV-24-08076-PCT-SMB (DMF)

10 Plaintiff/Respondent, No. CR-18-08040-001-PCT-SMB

11 v. REPORT AND RECOMMENDATION 12 Douglas Allen Jones,

13 Defendant/Movant. 14 15 TO THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT 16 JUDGE: 17 This matter arises from a motion under 28 U.S.C. § 2255 to vacate, set aside, or 18 correct sentence by a person in federal custody, and this matter is on referral to undersigned 19 for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 20 of the Local Rules of Civil Procedure (Doc. 4 at 1, 3).1 Undersigned has carefully reviewed 21 the record and applicable law. For the reasons set forth below, it is recommended that 22 relief in these 28 U.S.C. § 2255 proceedings be denied without conducting an evidentiary 23 hearing and that a certificate of appealability be denied.

24 1 Citations to the record indicate documents in the official electronic document filing system maintained by the District of Arizona under case numbers CV-24-08076-PCT-SMB 25 (DMF) and CR-18-08040-001-PCT-SMB. Citations to documents within Movant’s criminal case, case number CR-18-08040-001-PCT-SMB, are denoted “CR Doc.” 26 Citations to documents in Movant’s instant § 2255 matter, case number CV-24-08076- PCT-SMB (DMF), are denoted “Doc.” Further, “RT” refers to the Official Reporter’s 27 Transcript in case number CR-18-08040-001-PCT-SMB (see CR Docs. 203-206 for the four-day jury trial, RT 6/21/21, RT 6/22/21, RT 6/23/21, & RT 6/24/21), and “Tr. Exh.” 28 refers to the Exhibit Number presented at Movant’s criminal trial in case number CR-18- 08040-001-PCT-SMB (see CR Doc. 173). 1 I. BACKGROUND 2 Respondent provides an extensive review of the procedural history of the criminal 3 prosecution of Movant in Respondent’s filing entitled, “Government’s Response to 4 Petitioner/Defendant’s Second Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set 5 Aside, or Correct Sentence by a Person in Federal Custody” (hereafter “Answer to the 6 Amended § 2255 Motion” or “Answer”) (Doc. 31 at 5-17). Also, the United States District 7 Judge to which this Report and Recommendation is directed, Judge Susan M. Brnovich, 8 presided over the Movant’s criminal case beginning on December 3, 2018 (CR Doc. 50), 9 before the expiration of the pretrial motions deadline (CR Docs. 49, 53) and before 10 substantive pretrial motions were filed with the Court (see, e.g., CR Doc. 65). 11 In short, Movant Douglas Allen Jones (“Movant” or “Movant Jones”) was arrested 12 in January 2018 based on a complaint charging Movant with distribution and receipt of 13 child pornography in violation of the United States criminal code (CR Doc. 1). The 14 following month, a federal grand jury returned an indictment charging Movant with five 15 crimes: four counts of Distribution of Child Pornography in violation of 18 U.S.C. § 16 2252(a)(2) and one count of Possession of Child Pornography in violation of 18 U.S.C. § 17 2252(a)(4)(B) (CR Docs. 1, 16). At trial, the government presented ten witnesses, and 18 Movant’s counsel cross-examined all of the witnesses (CR Docs. 166-169, 172, 203-206). 19 At the conclusion of the four-day trial, a jury convicted Movant of all counts (CR Docs. 20 169, 177, 206 at 795-97). Movant was sentenced to 180 months’ imprisonment and 21 lifetime supervised release (CR Doc. 189). Movant appealed from the judgment, 22 challenging the 180 months’ imprisonment sentence imposed (CR Docs. 198, 229). See 23 United States v. Jones, 2023 WL 386765 (9th Cir. 2023). The Ninth Circuit affirmed the 24 judgment. Id. 25 Insofar as legal representation, Movant was found to qualify for appointed counsel 26 upon Movant’s arrest and was initially represented by several lawyers at the Federal Public 27 Defender’s Office for the District of Arizona, including Maria Weidner and Susan 28 Anderson (“pretrial counsel”) (CR Docs. 5, 9, 21, 61). Shortly before trial and after 1 substantial pretrial motions litigation by pretrial counsel, Movant retained counsel Dwane 2 Cates (“trial counsel”) in lieu of pretrial counsel (CR Docs. 141, 143). Movant retained 3 different counsel for appeal (CR Docs. 196, 197, 198). Later, appointed appellate counsel 4 Celia Rumann was substituted for Movant’s retained appellate counsel (CR Docs. 209, 5 210, 227). Before appellate briefing was completed, subsequently retained counsel for 6 Movant, Jeremy Gordon (“appellate counsel”), was substituted for appointed appellate 7 counsel Celia Rumann (CR Doc. 227). 8 In February 2024, the Ninth Circuit issued its mandate regarding the affirmance of 9 the judgment against Movant in Movant’s direct appeal (CR Doc. 229). On April 22, 2024, 10 Movant filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 11 by a Person in Federal Custody (“§ 2255 Motion”) (Docs. 1, 2).2 Movant’s retained counsel 12 Bretton Barber (“retained § 2255 counsel”) filed the § 2255 Motion (Id.). In the § 2255 13 Motion, Movant asserted two grounds for relief: in Ground One, Movant claimed that a 14 deliberating juror failed to disclose that the juror was a former CIA and DHS agent, whose 15 presence on the jury Movant argued caused substantial prejudice to Movant in violation of 16 the Fifth and Sixth Amendments of the United States Constitution; and in Ground Two, 17 Movant contended he received ineffective assistance of counsel in violation of the Fifth 18 and Sixth Amendments of the United States Constitution by trial counsel’s failure to call 19 as witnesses Michelle Bush and Renee DeSaye during Movant’s jury trial (Id.). The Court 20 ordered Respondent to answer the § 2255 Motion (Doc. 4). 21 Before Respondent filed an answer to the § 2255 Motion, Movant expressed in 22 filings with the Court his dissatisfaction with the § 2255 Motion which retained § 2255 23 counsel had filed on Movant’s behalf, Movant sought to proceed in a pro se capacity, and 24 Movant sought to file an amended and pro se motion under 28 U.S.C. § 2255 to vacate, set 25 aside, or correct sentence by a person in federal custody (Docs. 5-7, 14-19). Upon 26 confirmation that Movant possessed or would be promptly provided the case records and 27 materials needed for Movant to self-represent and after assuring that Movant indeed

28 2 Respondent does not contest the timeliness of these proceedings or of Movant’s pending claims (Doc. 31). 1 wanted to self-represent and did not seek new counsel, appointed or otherwise, the Court 2 allowed Movant to self-represent and to file an oversized amended and pro se § 2255 3 Motion, which Movant titled Second Amended Motion to Vacate, Set Aside, or Correct 4 Sentence (28 U.S.C.S. 2255) (“Amended § 2255 Motion”) (Docs. 19-26). 5 Promptly after the Amended § 2255 Motion was filed, Respondent filed a motion 6 for order to declare attorney-client privilege waived and to authorize several defense 7 counsel to provide affidavits (Doc. 27). Before Movant’s response to Respondent’s 8 motion, Respondent filed its Answer to the Amended § 2255 Motion (Doc. 31; see also 9 Docs. 28, 29, 30) followed by a motion to withdraw the motion for order to declare 10 attorney-client privilege waived and to authorize several defense counsel to provide 11 affidavits (Doc. 32). The motion to withdraw the motion for order to declare attorney- 12 client privilege waived and to authorize several defense counsel to provide affidavits 13 stated:

14 The government respectfully requests to withdraw its Second Motion to 15 Declare Attorney-Client Privilege Waived and To Authorize Defense Counsel and Appellate Counsel to Provide Affidavit at Docket 27, in Case 16 No. 3:24-cv-8076-SMB-DMF. In addition to filing the motion on October 17 18, 2024, the government sent a copy of the motion to [Movant] Douglas Allen Jones at his address at FCI-Oakdale via mail. Since that time, the 18 government / respondent has addressed the five issues that [Movant] Jones’ 19 raised, and filed its response on November 15, 2024. The motion at this time, therefore, is moot. 20 (Doc. 32). The Court granted the motion to withdraw the motion for order to declare 21 attorney-client privilege waived and to authorize several defense counsel to provide 22 affidavits (Doc. 34). 23 Movant filed a timely reply in support of his Amended § 2255 Motion (“Reply”) 24 (Doc. 36). Movant also filed a motion for appointment of special master, which the Court 25 denied (Docs. 35, 37, 38). Movant’s Amended § 2255 Motion is ripe for a Report and 26 Recommendation per United States District Judge Brnovich’s referral order (Doc. 4). 27 II. MOVANT’S AMENDED § 2255 MOTION 28 The Court granted Movant’s request to file “an oversized brief” in presenting his 1 Amended § 2255 Motion (Docs. 20, 25, 26). In his Amended § 2255 Motion, Movant asks 2 the Court to vacate his trial convictions and sentences based on five grounds (Doc. 26). 3 First, Movant alleges that his pretrial counsel, trial counsel, and appellate counsel failed to 4 adequately investigate and/or raise objections to audio recordings in the case based on 5 Movant’s assertions that these recordings were tampered with or fabricated (Id. at 5-9). 6 Second, Movant alleges that his pretrial counsel and trial counsel failed to investigate 7 and/or object to photographs that Movant asserts were altered (Id. at 10-17). Third, Movant 8 alleges that pretrial counsel and trial counsel were ineffective by failing to raise objections 9 to contradictory evidence and testimony which Movant asserts “reflected issues sounding 10 in Napue, Brady, and Giglio violations” (Id. at 18-33).3 Fourth, Movant alleges that 11 deliberating Juror 13’s failure to disclose government employment from 16 years earlier 12 violated Movant’s Fifth and Sixth Amendment rights (Id. at 34-36); Juror 13 identifies 13 himself as Art Keller (“Juror 13” or “Keller”) in a book that Juror 13 self-published after 14 Movant’s trial (Id. at 34-35). Fifth, Movant alleges that his trial counsel provided 15 ineffective assistance of counsel by not calling defense witnesses at trial, particularly expert 16 witness Michele Bush and investigator Renee DeSaye (Id. at 37-39); this ground and other 17 aspects of the Amended § 2255 Motion can be read liberally as also raising an ineffective 18 assistance of counsel claim for not calling Movant as a trial witness (Id. at 1-40). Movant 19 requests an evidentiary hearing on the grounds raised in his Amended § 2255 Motion (Id. 20 at 1). 21 Movant attached to his Amended § 2255 Motion: Exhibit A (Doc. 26-1 at 1-31), 22 which is a Digital Forensics Corp “Phase II Examination Report” dated June 17, 2019 23 (“DFC Report”) described by Movant as a third party professional analysis of audio data 24 contracted by Movant’s family while Movant was represented by pretrial counsel (Doc. 26 25 at 6); Exhibit B (Doc. 26-1 at 32-34), which is a letter from appointed appellate counsel 26 Celia Rumann, whom Movant states was discharged by Movant before appellate briefing 27 3 See Napue v. Illinois, 360 U.S. 264 (1959); Brady v. Maryland, 373 U.S. 83 (1963); Giglio 28 v. United States, 405 U.S. 150 (1972). 1 (Doc. 26-1 at 39, ¶ 29); Exhibit C (Doc. 26-1 at 35-40), which is an affidavit by Movant. 2 Also, Movant attached to his reply an Exhibit D (Doc. 36 at 26-29), which is an additional 3 affidavit by Movant. 4 Respondent attached to its Answer to the Amended § 2255 Motion (Doc. 31): 5 “Attachment A” (Doc. 31-1), which Respondent states is the trial court’s blank prospective 6 juror questionnaire sent out prior to trial (Doc. 31 at 9 n.4 and associated text; compare CR 7 Doc. 154-1; see also CR Doc. 156); “Attachment B” (Doc. 31-2), which is the Complaint 8 and the accompanying affidavit of probable cause by Agent Charles Davis that led to 9 Movant’s arrest (see also CR Doc. 1); “Attachment C” (Doc. 31-3), which refers to the 10 Miranda form filled out by Agent Davis and signed by Movant (Tr. Exh. 5); “Attachment 11 D” (Doc. 31-4) which is at least a substantial part of Juror 13’s self-published book on 12 Amazon; “Attachment E” (Doc. 31-5), which refers to the redacted transcript of interview 13 Part 1 of Movant that was played for the jury in audio form and admitted into evidence in 14 the audio form (Tr. Exh. 3; Tr. Exh. 1 (audio); see CR Doc. 173 at 1; Doc. 31 at 7 n.2); 15 “Attachment F” (Doc. 31-6), which refers to the redacted transcript of interview of Movant 16 which was played for the jury in audio form and admitted into evidence in the audio form 17 (Tr. Exh. 4; Tr. Exh. 2 (audio); see CR Doc. 173 at 1; Doc. 31 at 7 n.2). The Court allowed 18 Respondent to file excess page briefing in response to the Amended § 2255 Motion (Docs. 19 28, 29, 30); Respondent’s Answer to the Amended § 2255 Motion is sixty-eight (68) pages 20 not including the certificate of service or exhibits (Doc. 31). 21 Movant filed a timely, lengthy reply in support of his Amended § 2255 Motion 22 (Doc. 36).4 As stated above, Movant attached to his reply an Exhibit D (Id. at 26-29), 23 which is an additional affidavit by Movant. Movant also filed a motion for appointment

24 4 To the extent that Movant raises new claims in his reply in support of his Amended § 2255 Motion, the Court declines to consider such as unauthorized under applicable rules 25 and law. See Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 2(b)(1) (instructing that the Section 2255 motion must “specify all the grounds 26 for relief available to the moving party”); United States v. Berry, 624 F.3d 1031, 1039 n.7 (9th Cir. 2010) (declining to address new argument raised for the first time in a reply brief 27 in a § 2255 proceeding); Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008) (“Arguments raised for the first time in [habeas] petitioner's reply brief are deemed 28 waived.”). Moreover, Movant has not made a sufficient showing that any new claims he would seek to raise were not available to him at the time of the Amended § 2255 Motion. 1 of special master, which the Court denied (Docs. 35, 37, 38). 2 III. APPLICABLE LEGAL FRAMEWORK 3 A. Section 2255 Motion to Vacate, Set Aside, or Correct Sentence 4 A federal prisoner is entitled to relief from his sentence pursuant to Section 2255 if 5 it was “imposed in violation of the Constitution or the laws of the United States, or that the 6 court was without jurisdiction to impose such sentence, or that the sentence was in excess 7 of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. 8 § 2255(a). 9 B. Ineffective Assistance of Counsel 10 To obtain relief for an ineffective assistance of counsel (or “IAC”) claim, a movant 11 must show that counsel’s representation fell below an objective standard of reasonableness 12 and also that counsel’s deficient performance prejudiced the defense. Strickland v. 13 Washington, 466 U.S. 668, 687-88, 692 (1984). These are referred to as Strickland’s two 14 separate components or “prongs.” See Catlin v. Broomfield, 124 F.4th 702, 727-728 (9th 15 Cir. 2024). “Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 16 559 U.S. 356, 371 (2010). “The benchmark for judging any claim of ineffectiveness must 17 be whether counsel’s actions so undermined the proper functioning of the adversarial 18 process that the trial cannot be relied on as having produced a just result.” Strickland, 466 19 U.S. at 686. 20 In reviewing counsel’s performance, courts “indulge a strong presumption that 21 counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. 22 at 689. “A fair assessment of attorney performance requires that every effort be made to 23 eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s 24 challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” 25 Id. The standard for judging counsel’s representation is “highly deferential.” Id. It is “all 26 too tempting” to “second-guess counsel’s assistance after conviction or adverse sentence.” 27 Id. Generally, because review of counsel’s performance is extremely limited, conduct that 28 “might be considered sound . . . strategy” does not constitute ineffective assistance of 1 counsel. Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). The reviewing court 2 must consider whether “counsel’s representation fell below an objective standard of 3 reasonableness.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 4 U.S. at 688). “The question is whether an attorney’s representation amounted to 5 incompetence under ‘prevailing professional norms,’ not whether it deviated from best 6 practices or most common custom.” Richter, 562 U.S. at 105 (quoting Strickland, 466 U.S. 7 at 690). 8 The Supreme Court has instructed that counsel “has a duty to make reasonable 9 investigations or to make a reasonable decision that makes particular investigations 10 unnecessary.” Cullen v. Pinholster, 563 U.S. 170, 195 (2011) (quoting Strickland, 466 11 U.S. at 691 (emphasis added in Pinholster)). The Supreme Court has further recognized 12 that “reasonably diligent counsel may draw a line when they have good reason to think 13 further investigation would be a waste.” Rompilla v. Beard, 545 U.S. 374, 383 (2005). 14 Additionally, the Supreme Court has concluded that “[w]hen counsel focuses on some 15 issues to the exclusion of others, there is a strong presumption that he did so for tactical 16 reasons rather than through sheer neglect.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003). 17 To establish prejudice, a movant must show a “reasonable probability that, but for 18 counsel’s unprofessional errors, the result of the proceeding would have been different.” 19 Strickland, 466 U.S. at 694. The prejudice component “focuses on the question of whether 20 counsel’s deficient performance renders the result of the . . . proceeding fundamentally 21 unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). 22 The court need not reach both prongs of the Strickland test. 466 U.S. at 697 23 (“Although we have discussed the performance component of an ineffectiveness claim 24 prior to the prejudice component, there is no reason for a court deciding an ineffective 25 assistance claim to approach the inquiry in the same order or even to address both 26 components of the inquiry if the defendant makes an insufficient showing on one.”). 27 C. Standard for Warranting Evidentiary Hearing 28 Under 28 U.S.C. § 2255, a court shall grant an evidentiary hearing “[u]nless the 1 motion and the files and records of the case conclusively show that the prisoner is entitled 2 to no relief . . . .” 28 U.S.C. § 2255(b). 3 In determining whether to grant an evidentiary hearing, a court must consider 4 whether, accepting the truth of a movant’s factual assertions that are not directly and 5 conclusively refuted by the record, the movant could prevail on his claims. United States 6 v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994); Turner v. Calderon, 281 F.3d 851, 890- 7 91 (9th Cir. 2002). To be entitled to an evidentiary hearing, a movant must allege specific 8 factual allegations that, if true and not contrary to the clear record, “state a claim on which 9 relief could be granted.” United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) 10 (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984). To state a claim 11 for ineffective assistance of counsel such that a movant would be entitled to an evidentiary 12 hearing, a movant must allege facts showing that “counsel’s conduct so undermined the 13 proper functioning of the adversarial process that the trial cannot be relied on as having 14 produced a just result.” Strickland, 466 at 686. 15 The Court need not hold an evidentiary hearing if the record conclusively shows 16 that Movant is either not entitled to relief or if, in light of the record, his claims are 17 “palpably incredible or patently frivolous.” United States v. Withers, 638 F.3d 1055, 1062- 18 63 (9th Cir. 2011) (quoting Schaflander, 743 F.2d at 717). 19 IV. DISCUSSION 20 A. Movant’s Claims Asserting Ineffective Assistance of Counsel 21 In Grounds One, Two, Three, and Five of the Amended § 2255 Motion, Movant 22 raises various ineffective assistance of counsel claims, which Movant further urges in his 23 reply (Docs. 26, 36). Movant requests an evidentiary hearing on his claims (Id.). 24 1. Ground One: Argument that Movant’s counsel were ineffective for 25 not investigating/objecting/arguing that audio recordings were tampered 26 with or fabricated 27 In Ground One of the Amended § 2255 Motion, Movant alleges that his counsel 28 failed to adequately investigate and/or raise objections to audio recordings in the case based 1 on Movant’s assertions that these recordings were tampered with or fabricated (Doc. 26 at 2 5-9). Movant emphasizes that his pretrial counsel, trial counsel, and appellate counsel 3 failed to adequately investigate and/or file objections relating to audio recordings in the 4 case that Movant asserts were tampered with or fabricated (Id. at 9). That all of his counsel 5 decided that this issue was not substantial enough to pursue further than they did or to 6 otherwise raise this issue in defense and representation of Movant underscores that the 7 Strickland standard, especially on the first prong, has not been met regarding Ground One 8 of the Amended § 2255 Motion. 9 The audio recordings on which Movant bases Ground One of the Amended § 2255 10 Motion are the first part of the law enforcement interview of Movant, the second part of 11 the law enforcement interview of Movant, and the law enforcement interview of one of 12 Movant’s roommates, Theodore Welch (“Welch”) (Doc. 26 at 5-9). 13 Movant’s Amended § 2255 Motion and attachments refute his Ground One claims 14 regarding tampering and falsification of all three recordings on both Strickland prongs. 15 The DFC Report (Doc. 26-1 at 1-31), which Movant represents was obtained by his family 16 during pretrial proceedings (Id. at 38, ¶ 20), expressly and unequivocally states that the 17 audio recordings of Movant were not edited and are original (Id. at 22).5 Also, the DFC 18 Report states that the audio recording of Welch was edited by only for “manipulating the 19 amplitude of the signal (possibly noise reduction or amplifying)” (Id.); after that “the 20 audiorecording was converted and saved in Windows Media Format” but that the forensic 21 examiner “did not observe any indications of cutting and/or pasting audio segments in the 22 audio recording” (Id.).6 In his Amended § 2255 Motion, Movant recounts having provided 23 the DFC Report to his pretrial counsel and to his trial counsel (Doc. 26 at 7, 9). The analysis 24 and conclusions of the DFC Report demonstrate that decisions by Movant’s pretrial

25 5 Earlier in the DFC Report, the expert wrote about the audio recordings of Movant that “[d]uring critical listening and spectrographic analysis, the Forensic Examiner did not 26 observe any details that significantly jeopardize the authenticity of the audio recording” (Doc. 26-1 at 13, 16). 27 6 Related to the Welch interview, the expert wrote that “[d]uring critical listening and 28 spectrographic analysis, the Forensic Examiner did not observe any details of cutting and/or pasting audio segments in the audio recording” (Doc. 26-1 at 21). 1 counsel, trial counsel, and appellate counsel not to raise Movant’s tampering and 2 falsification assertions regarding any of the three audio recordings were well within the 3 Strickland standard of professional performance. Lack of raising these assertions did not 4 cause prejudice to Movant. 5 Moreover, pretrial and trial counsel did not rely solely on the DFC report. With his 6 Amended § 2255 Motion, Movant included a letter from discharged appointed appellate 7 counsel Celia Rumann (Doc. 26-1 at 33-34, 39). The letter states regarding pretrial 8 counsel’s work regarding the audio recordings of Movant:

9 I am enclosing for your information two documents I received today from 10 your prior attorney, [pretrial counsel] Susan Anderson. They indicate that the Federal Public Defender’s Office did hire an expert to examine the tapes 11 of your interview for any evidence of tampering. It appears that the expert 12 did not find any such evidence, so they did not have the expert write a report.

13 (Doc. 26-1 at 34). Regarding the Welch audio recording, Movant asserts in his Amended 14 § 2255 Motion that his trial counsel was apprised of the DFC report and “conducted 15 informal review through an undisclosed audio examiner, which resulted in no report having 16 been generated” (Doc. 26 at 9). Movant represents that trial counsel relayed to Movant 17 that the examiner could not determine if any modification of the Welch audio interview 18 because the audio recording was a copy (Id.). 19 Given the above, Movant’s assertions in his affidavits in support of his Amended § 20 2255 Motion and Reply pertaining to Movant’s recollections and impressions regarding 21 the audio recordings are insufficient to state a claim for ineffective assistance of counsel 22 under either Strickland prong. Movant has not stated a claim that representation provided 23 by his pretrial counsel, trial counsel, and appellate counsel insofar as his claims of 24 tampering and falsification of the audio recordings fell below the objective standard of 25 reasonableness. Movant has not stated a claim that representation provided by his pretrial 26 counsel, trial counsel, and appellate counsel insofar as his claims of tampering and 27 falsification of the audio recordings prejudiced Movant’s defense. Thus, an evidentiary 28 hearing on Movant’s Ground One claims is not warranted. This conclusion does not 1 change with consideration of the broader record. 2 Regarding Strickland’s prejudice prong as to the audio recording of the Welch 3 interview, the Welch interview was never offered as a trial exhibit or played for the jury 4 (CR Docs 203-206). Although Welch testified at trial, he was not impeached with his 5 recorded interview of which Movant complains in this ground (RT 6/22/21 at 396-418; CR 6 Doc. 204 at 184-206). Trial counsel for Movant cross examined Welch (RT 6/22/21 at 7 412-416; CR Doc. 204 at 200-204). Respondent correctly notes that in doing so, Movant’s 8 trial counsel elicited positive information for Movant including that Welch “would give 9 out the [WiFi] password to a guest if asked (RT 6/22/21 at 413[; CR Doc. 204 at 201]), that 10 Welch also had BitTorrent on his own computer (RT 6/22/21 at 414-15[; CR Doc. 204 at 11 202-03]), and that Welch had never seen [Movant] Jones looking at child pornography (RT 12 6/22/21 at 414[; CR Doc. 204 at 202])” (Doc. 31 at 30). Thus, Respondent is correct that 13 the record conclusively demonstrates that Movant cannot meet the second prong of 14 Strickland as to the audio recording of Welch (Doc. 31 at 29-30). 15 Respondent is also correct that the broader record undermines Strickland’s prejudice 16 regarding Movant’s unraised assertions that the two audio recordings of Movant were 17 tampered or otherwise fabricated:

18 Even if [Movant’s] counsel(s) would have objected to the recordings, the 19 evidence still pointed unequivocally to [Movant] being responsible for the child pornography activities, and no one else. When Welch testified at trial, 20 the jurors knew Welch had a felony conviction for a drug crime involving 21 marijuana (RT 6/22/21 at 397) and so could assign whatever weight they wanted to his testimony. Welch identified [Movant’s] desktop computer that 22 was on the desk in [Movant’s] bedroom, and said that was the only computer 23 he knew [Movant] had. (RT 6/22/21 at 406-07.) Welch said he, Welch, never used [Movant’s] computer in [Movant’s] bedroom and had never seen 24 [Movant’s] computer located anywhere else in the residence. (RT 6/22/21 at 25 408, 414.) Welch never saw the third roommate, Travis Kohn, nor anyone else who was in the residence, use either of [Movant’s] computers. (RT 26 6/22/21 at 414.) Welch was not familiar with BitTorrent and denied doing 27 any child pornography activities. (RT 6/22/21 at 409.) Welch said his own computer and phones were previewed and given back to him the date of the 28 search warrant. (RT 6/22/21 at 409-10.) He and [Movant] were on friendly 1 terms. (RT 6/22/21 at 413.) 2 (Doc. 31 at 31). 3 The broader record also defeats Movant’s Ground One claims based on the pause 4 length between the two interviews of Movant. Regarding the pause length between the 5 interviews of Movant, Respondent accurately points out that Movant “does not cite any 6 specific resulting prejudice such as the government presenting any inculpatory statement(s) 7 from the unrecorded time period, or to any force or coercion rendering his recorded 8 statements involuntary” (Id. at 21). Further, Movant’s assertions about the time between 9 the two interview recordings of Movant fail “to acknowledge Agent Davis’ trial testimony 10 about the explanation for a difference in time because of the clocks used” (Id. at 24).

11 Specifically, during his trial testimony, Agent Davis acknowledged a time 12 discrepancy relating to the start time of [Movant’s] recorded interview of approximately 18 minutes. Agent Davis stated that when the agents started 13 the Part 1 interview, the time they described on the recording was 7:27 a.m. 14 (RT 6/24/21 at 674; Attachment E, Tr. Exh. 3 at 3.) But, Agent Davis also acknowledged that the Miranda form that was signed concurrent to the 15 beginning of the interview showed 7:44 a.m. (RT 6/24/21 at 675-76; 16 Attachment C, the Miranda form as Tr. Exh. 5.) Agent Davis testified that he used the time on the clock of Agent Martin’s vehicle and that “Agent Martin 17 is somewhat famous for setting her clock a little bit ahead to make sure she’s 18 on time for things, so it might not have been exactly correct. She tends to advance it a bit, I think.” (RT 6/24/21 at 675.) This fact alone accounts for 19 approximately 18 minutes, not of “missing time,” but simply of who recorded 20 the time from which timepiece. [Movant’s] “Affidavit of Truth,” did not add any new facts because he only explained the time period between his two 21 interviews as “Agents Rose and Davis did discontinue the interview for a 22 significant period of time…” (CV 21-1, at 37, ¶ 14). The bottom line is that there is no “missing time.” At most, two agents used different clocks, with 23 one for sure that was not receiving its signal from a satellite. (RT 6/24/21 at 675.) 24 (Id. at 24-25).7 25

26 7 Movant’s references in his Amended § 2255 Motion to the statements in support of probable cause for the complaint are all made in reference to Movant’s assertions of 27 ineffective assistance of counsel (Doc. 26 at 5-7). Respondent is correct that Movant’s assertions about the recordings would not and do not meet the standard of Franks v. 28 Delaware, 438 U.S. 154 (1978), if applicable, in light of Movant’s indictment less than a month after Movant’s arrest on the complaint supported by the affidavit of probable cause 1 In sum, regarding the Strickland prongs and Movant’s Ground One claims based on 2 counsel not litigating the recordings issues described by Movant:

3 [Movant] can set forth his flawed theories about how investigations should 4 work, but that does not mean his counsel must act accordingly and investigate issues without any foundation. [Movant] was arrested and charged based on, 5 for example, the original investigation that led investigators to his home, the 6 on-scene previews of devices in the home, the statements of all three roommates, the absence of evidence related to child pornography activities 7 on his roommates’ devices, and the positive search results on [Movant’s] 8 computers both found in his bedroom. The jury determined the evidence supported he was guilty beyond a reasonable doubt. There is nothing 9 ineffective about any of [Movant’s] counsels failing to investigate the 10 baseless claim that either his, nor Theodore Welch’s, recorded interviews were altered. 11 (Id. at 32). 12 Likewise, Movant’s attempt to include an ineffective assistance of trial counsel 13 claim in Ground One based on Movant not testifying at trial fails to state a claim based on 14 the record and the applicable law. In Ground One, Movant alleges trial counsel 15 “sandbagged” Movant by advising Movant prior to trial that if evidence about altered 16 recordings and Movant’s own testimony were not put forth it would give Movant a stronger 17 appeal basis (Doc. 26 at 9). After Movant consulted with trial counsel about his right to 18 testify or right not to testify, Movant told the District Judge, “Yes, that is my choice not to 19 testify” (RT 6/24/21 at 689; Doc. 206 at 34). Further, in his reply in support of the 20 Amended § 2255 Motion, Movant states that had Movant chosen to testify during the trial, 21 Movant’s trial testimony would have been simple and direct denials of any admissions and 22 of the criminal allegations against him (Doc. 36 at 8). Respondent is correct that: 23 24 In the event he would have testified, [Movant] would have faced a cross- examination that showed the extensive, corroborating forensic data on two 25 computers that were located in his bedroom that pointed to him being 26 and in light of Movant’s release from pretrial custody a few months later (CR Docs. 16, 27 38; see Doc. 31 at 22-29). In any event, Respondent’s Franks arguments also demonstrate that it did not fall below reasonable professional standards of competence for counsel to 28 choose not to raise Movant’s assertions of falsification or tampering with the audio recordings in defense of the prosecution of Movant (Doc. 31 at 22-29). 1 responsible. [Trial counsel’s] strategy was to demonstrate, through cross- examination and argument, that the government did not produce anyone who 2 saw [Movant] doing any child pornography activities, and to cast equal 3 suspicion onto either of [Movant]’s adult roommates or another person who may have frequented their home. [Trial counsel] further attacked the 4 techniques used by law enforcement to gather evidence and conduct 5 interviews. Even though the jury ultimately found [Movant] guilty, this did not render [trial counsel’s] performance ineffective[.] 6 (Doc. 31 at 33). 7 In short, Movant’s Amended § 2255 Motion Ground One claims do not state a claim 8 on either of Strickland’s prongs. Rather, the record clearly demonstrates that Movant’s 9 Ground One claims fail. 10 2. Ground Two: Argument that pretrial counsel and trial counsel 11 failed to investigate and/or object to photographs that Movant asserts were 12 altered 13 In Ground Two of the Amended § 2255 Motion, Movant alleges in that his pretrial 14 counsel and trial counsel failed to investigate and/or object to photographs that Movant 15 asserts were altered (Doc. 26 at 10-17). Movant claims trial counsel failed to properly 16 object to admission of the photographic evidence (Id. at 14). In the Amended § 2255 17 motion, Movant states that he told both pretrial counsel and trial counsel that the laptop 18 computer was not found in his bedroom, but rather had been discarded in a recycling bin 19 outside of the residence (Id. at 13). In Movant’s “Affidavit of Truth-Douglas Allen Jones”, 20 Movant claims that “[t]he laptop was set aside for several months, then placed into a 21 recycling bin outside my residence, along with several other discarded computer 22 components” (Doc. 26-1 at 36, ¶ 8). 23 In its Answer, Respondent describes the portions of the record as well as the 24 applicable law that establish the lack of any merit whatsoever to Movant’s Ground Two 25 claims (Doc. 31 at 33-38). Further, regarding trial counsel’s performance, Respondent is 26 correct that: 27

28 [o]n cross-examination, [trial counsel] demonstrated he understood [Movant]’s allegation about the laptop by, for example: (1) asking Agent 1 Martin “And the claim was that the laptop was found under this bed, correct?” (RT 6/21/21 at 142); (2) asking Agent Martin “Are you telling me 2 that the FBI doesn’t have a camera that can take a photograph underneath a 3 bed with a flash?” (RT 6/21/21 at 142); (3) responding “Is that an excuse for poor police work?” when Agent Martin testified that the photographer was 4 seven months pregnant and it was difficult for her to lean down (RT 6/21/21 5 at 143); (4) asking SSA Engstrom “Is there some reason you didn’t call the…photographer to come take a photograph of it?” and “…was it 6 physically possible to take a photograph underneath that bed?” (RT 6/21/21 7 at 171-72); (5) making the point that the only pictures of the laptop were pictures after it had already been previewed (RT 6/21/21 at 173); and (6) 8 making the point that the sketch which placed the laptop computer in the 9 corner underneath the bed was not where SSA Engstrom said she located it (RT 6/21/21 at 174). 10 (Doc. 31 at 37). Trial counsel challenged the evidence of which Movant complains, and 11 the jury was tasked with weighing “the credibility of the witnesses knowing that the laptop 12 computer was not photographed in its original place” (Id.). 13 Moreover, earlier in the proceedings, pretrial counsel had filed numerous motions 14 to suppress (Docs. 76, 77, 78, 79), including a motion to suppress all evidence obtained 15 pursuant to the search of Movant’s residence (Doc. 78). “When counsel focuses on some 16 issues to the exclusion of others, there is a strong presumption that he did so for tactical 17 reasons rather than through sheer neglect.” Gentry, 540 U.S. at 8. 18 The Court’s record conclusively shows that Movant has not stated a claim on either 19 of Strickland’s prongs that pretrial and trial counsel were ineffective regarding the 20 photographic evidence of which Movant complains in this ground. Rather, the record 21 clearly demonstrates that Movant’s Ground Two claims fail. 22 3. Ground Three: Argument that pretrial counsel and trial counsel 23 were ineffective by failing to raise objections to contradictory evidence and 24 testimony reflecting Napue, Brady, and Giglio violations 25 In Ground Three of the Amended § 2255 Motion, Movant alleges that pretrial 26 counsel and trial counsel were ineffective by failing to raise objections to contradictory 27 evidence and testimony which Movant asserts “reflected issues sounding in Napue, Brady, 28 and Giglio violations” (Doc. 26 at 18-33). Movant alleges that his trial counsel was 1 ineffective for not raising Napue, Brady, and Giglio violations related to false testimony 2 presented at trial (Id.). Movant complains that his trial counsel did not object and the 3 government did not recuse witnesses who gave conflicting testimony with other statements 4 made in reports, interviews, affidavits, and while otherwise testifying (Id.). In support, 5 Movant cites to discrepancies he believes important (Id.). Also in support, Movant posits 6 that his two roommates’ testimonies at trial were given under duress or with some unknown 7 incentive (Id.). 8 In their Answer, Respondent argue that Movant’s Ground Three claims fail (Doc. 9 31 at 38-47). In doing so, Respondent provides accurate legal descriptions of Napue, 10 Brady, and Giglio violations (Id. at 38-40). In short, Brady v. Maryland recognized a 11 criminal defendant’s due process right to disclosure of any favorable evidence in the 12 government’s possession. 373 U.S. 83, 87-88 (1963). To succeed in a Brady challenge, 13 the defendant must show that he suffered prejudice as a result of the wrongly withheld 14 evidence. Strickler v. Greene, 527 U.S. 263, 281 (1999). Giglio v. United States 15 recognized that the prosecution must disclose evidence of any promises made to its 16 witnesses. 405 U.S. 150, 154 (1972). Under Napue v. Illinois, a criminal defendant can 17 challenge his conviction if the prosecution failed to correct material evidence which it knew 18 to be false. 360 U.S. 264, 268 (1959). 19 Upon review of the parties’ briefing and the underlying record, Respondents are 20 correct that Movant’s arguments regarding Brady and Giglio based on speculation 21 regarding his roommates’ trial testimony do not state a claim of ineffective assistance of 22 counsel (Id. at 41-43). Further, the trial transcripts reflect that Movant’s trial counsel 23 effectively cross-examined Movant’s roommates at trial as well as the Government’s other 24 witnesses (CR Docs 203-206). 25 Insofar as ineffective assistance of counsel based on failure to pursue a Napue 26 violation, Respondents are also correct that:

27 [i]nconsistent statements by a witness do not support a Napue violation. 28 United States v. Bingham, 653 F.3d 983, 995 (9th Cir. 2011), citing United 1 States v. Williams, 547 F.3d 1187, 1202 n. 13 (9th Cir. 2008) (“Although there were inconsistencies in Penate’s testimony, there was no evidence that 2 the government knowingly presented false testimony…the inconsistencies in 3 Penate’s testimony were argued to the jury.”). 4 (Doc. 31 at 44). For reasons described by Respondents, Movant also has not stated a claim 5 of ineffective assistance of counsel based on failure to pursue a Napue challenge (Doc. 31 6 at 38-47). 7 Indeed, like with Movant’s roommates, Movant’s trial counsel effectively cross 8 examined the remainder of the Government’s trial witnesses (CR Docs 203-206). 9 Respondents summarize trial counsel’s defense strategy, which was supported by the entire 10 record to and through trial:

11 From the trial record, it is clear that [trial counsel] had a strategy that was to 12 (1) question, or attempt to discredit, the credibility of Theodore Welch, the internet service subscriber to the residence; (2) question, or attempt to 13 discredit, the credibility of Travis Kohn, the roommate [whose bedroom was] 14 in the garage; and (3) raise the possibility that another adult had the password to the modem and did the illegal activities; (4) attack the FBI investigation 15 with things such as not seizing the modem for analysis, failing to interview 16 neighbors, the entry into the residence at 6:50 a.m. on the cold January 23, 2018 morning, [Movant] being placed in handcuffs immediately to be walked 17 to the FBI vehicle, not taking devices from the scene for more in depth 18 analysis, and not having a photograph of the laptop computer in place underneath the bed; and (5) attack the government’s case as circumstantial 19 based on the fact that no one had witnessed [Movant] using his computer to 20 download, share, or possess child pornography. (Doc. 31 at 70). The record also demonstrates that pretrial counsel was also vigorous in 21 advancing defense strategies throughout pretrial proceedings and leading up to trial, 22 including regarding electronic, technical, and computer evidence and the collection of 23 such. As described by Respondent: 24

25 On November 1, 2019, [pretrial] counsel Maria Weidner filed five pretrial motions— a motion to suppress [Movant’s] IP address (CR ECF 76); a 26 motion to suppress evidence (CR ECF at 77); a motion to suppress evidence 27 obtained in connection with [Movant’s] residence (CR ECF at 78); a motion to suppress [Movant’s] statement to law enforcement (CR ECF at 79); and a 28 motion in limine to exclude images, file names, and graphic descriptions of 1 the alleged child pornography at trial (CR ECF at 80). The government filed its response to each of these five motions. (CR ECF at 81, 83, and 98.) 2 [Pretrial] counsel filed a reply to three of these. (CR ECF at 96, 97.) 3 On January 30, 2020, Judge Brnovich denied [Movant’s] three motions to 4 suppress filed in CR ECF 76, 77, 78. (CR ECF at 111.) 5 (Doc. 31 at 8-9). Further: 6 On July 26, 2019, [pretrial counsel] Ms. Anderson and Ms. Weidner filed a 7 Motion to Compel, which requested a copy of the law enforcement’s 8 proactive software Torrential Downpour. (CR ECF at 65.) The government filed a response on August 14, 2019 (CR ECF at 69.) [Pretrial counsel] filed 9 a reply on August 28, 2019. On September 10, 2019, the court held a status 10 hearing where some testing would be allowed, but a copy of the software would not be turned over, with a further status conference to be held on 11 October 21, 2019. (CR ECF at 73.) On October 21, 2019, the status 12 conference confirmed that the testing had taken place with results to be sent to the defense expert and [pretrial counsel] averring that it would ask for 13 additional testing. (CR ECF at 75.) Over the three days of November 25-27, 14 2019, an evidentiary hearing was held on the [pretrial counsel’s] motion to compel discovery. (CR ECF at 87, 88, 89.) On June 19, 2020, [pretrial 15 counsel] Ms. Anderson filed a Motion to Compel Additional Discovery relating to the Torrential Downpour software. (Doc. 127.) On August 14, 16 2020, the government filed a Response. (CR ECF at 131.) On August 28, 17 2020, the defense filed a Reply. On September 10, 2020, the court held an evidentiary hearing, granting in part and denying in part, the motion. (CR 18 ECF at 135.) 19 (Doc. 31 at 62 n.24) (emphasis removed). 20 In short, Movant’s assertions and arguments do not state a claim for a Napue, Brady, 21 or Giglio violation, nor does the record support any such claim. Thus, Movant’s ineffective 22 assistance of counsel claims for failure to raise such violations fail to state a claim on either 23 of Strickland’s prongs. Further, the record shows that Movant has not stated a claim of 24 ineffective assistance of counsel claim against pretrial counsel or trial counsel regarding 25 their defense strategies and handling of Government witnesses insofar as advancing such 26 defense strategies. Rather, the record clearly demonstrates that Movant’s Ground Three 27 claims fail. 28 1 4. Ground Five: Argument that trial counsel was ineffective for not 2 calling witnesses at trial, particularly expert witness Michele Bush, 3 investigator Renee DeSaye, and even regarding Movant himself 4 In Ground Five of the Amended § 2255 Motion, Movant alleges that his trial counsel 5 provided ineffective assistance of counsel at trial by not calling witnesses at trial, 6 specifically defense investigator Renee DeSaye and expert witness Michele Bush (Doc. 26 7 at 37-39). Movant points to the joint witness list filed by the parties in advance of trial 8 with Ms. DeSaye’s and Ms. Bush’s names listed (Id. at 37, referring to CR Doc. 172). 9 Movant asserts that trial counsel’s decisions not to call Ms. DeSaye and Ms. Bush as 10 witnesses was last minute and, therefore, ineffective (Id. at 37). 11 In his Amended § 2255 Motion, Movant does not specify what testimony defense 12 investigator Renee DeSaye would have offered at trial (Doc. 26 at 37-39). Movant states 13 that he does not know whether or not investigator Renee DeSaye “had interviewed 14 witnesses Theodore Welch and Travis Kohn prior to trial, to further develop a valid trial 15 defense” (Id. at 38). In his Amended § 2255 Motion, Movant “concedes that information 16 regarding Renee DeSaye other than the fact that she is a private investigator is limited and 17 her absence may or may not have caused Movant prejudice” (Id. at 37). In Movant’s 18 affidavit accompanying his reply, Movant asserts that investigator Renee DeSaye “did not 19 adequately prepare or investigate in preparation for the trial itself” in discussing 20 investigation of Theodore Welch’s and Travis Kohn’s prior criminal records (Doc. 36 at 21 29, ¶ 22). In reply and referencing expert witness Michele Bush and investigator Renee 22 DeSaye, Movant makes general assertions that trial counsel’s “failure to investigate, 23 present evidence and testimony through available witnesses with specialized knowledge, 24 such as his investigator, or a subject matter expert for analysis of other available evidence” 25 (Doc. 36 at 22; see also id. at 23-24). In Exhibit D to his reply in support of the Amended 26 § 2255 Motion, Movant complains that he was unaware of Movant’s roommate and later 27 Government trial witness Kohn’s criminal record, which Movant implies was Ms. 28 DeSaye’s role to discern in assisting trial counsel (Id. at 29, ¶¶ 21, 22). 1 Upon careful review, Respondent is correct regarding investigator Ms. DeSaye that:

2 [Movant] has not made a showing to grant an evidentiary hearing since he 3 has not shown what Ms. DeSaye would have offered. Further, [Movant] is mistaken in his assertion that [trial counsel’s] decision was a “last minute” 4 one that caused prejudice to his case. (CV ECF 21 at 37.) This is because on 5 June 7, 2021, two weeks prior to trial during the Final Pretrial Conference, [trial counsel] was very clear about Ms. DeSaye’s role in [Movant’s] case. 6 When the parties were asking about COVID protocols and how many people 7 were going to be allowed to sit at counsel table, [trial counsel] stated, “And, I also have my investigator that helps me pick juries and works with me 8 during trial so…” (RT 6/7/21 at 97.) [Trial counsel] further elaborated that 9 Ms. DeSaye had a spreadsheet that he needed to access and “She’s a whiz at picking juries.” Id. [Trial counsel] had a clear purpose for her, and her name 10 being read to the jury was proper because she was going to be physically 11 present and visible during jury selection and trial.

12 [Movant] may believe that Ms. DeSaye ought to have been called as a witness, but his mere speculation about her helpfulness to his case does not 13 rise to the level of ineffectiveness. See Zahran v. United States, 2017 WL 14 4310697, at *4 (trial counsel not ineffective for not having a forensic accountant testify due to the resources, the status of the record, and the 15 government’s analysis of the record; it was a reasonable strategy to not call 16 certain witnesses when the testimony could have been counterproductive by opening doors to negative areas). 17 (Doc. 31 at 60-61). Movant’s assertions in his reply in support of the Amended § 2255 18 Motion are as non-specific and speculative as his assertions in the Amended § 2255 Motion 19 (Doc. 36 at 23). Further, the jury was informed before Movant’s roommates, Welch and 20 Kohn, were called as trial witnesses that “the parties have stipulated and agreed that the 21 next two witnesses and the defendant in this case all have a felony conviction or convictions 22 for drug crimes involving marijuana.” (RT 6/22/21 at 215, 397; CR Doc. 204 at 3, 185). 23 Regarding expert witness Michele Bush, Movant states in his Amended § 2255 24 Motion that “Michelle Bush was involved at length in the pretrial process, meaning that 25 there is a body of evidence to evaluate the effect her absence had upon Movant’s ability to 26 defend himself from the Government’s allegations” (Doc. 26 at 37). Movant recounts that 27 Michele Bush “first became involved when [pretrial counsel] hired her to examine 28 Torrential Downpour, the software used to gather evidence against Movant” (Id.). Movant 1 concedes that “Ms. Bush’s role was at first to submit an argument against the initial search 2 warrant, which is not at issue here and has already been adjudicated in other federal 3 jurisdictions” (Id.). Movant asserts that “the issue in this matter is Ms. Bush’s evidence 4 that casts a reasonable doubt on the Government’s case” (Id.), which Movant describes on 5 the next page of his Amended § 2255 Motion (Id. at 38). In the description, Movant 6 references Ms. Bush’s testimony at a pretrial evidentiary hearing regarding her tests of 7 Torrential Downpour (Id.). 8 Respondent is correct regarding Movant’s claim based on failure to call Ms. Bush 9 as a trial witness that:

10 [Movant] is again mistaken that [trial counsel] made a last-minute decision 11 to not call Ms. Bush. On June 7, 2021, at the Final Pretrial Conference two weeks prior to trial, [trial counsel] stated, “…[I’m] probably going to have, 12 at least part of my trial, I’ll have a forensic expert. I’m not going to call her 13 as a witness, but I would like to have her at counsel table up there.” (RT 6/7/21 at 97-98.) The court authorized that the expert could sit behind defense 14 counsel if she was not a witness. [Trial counsel] responded, “No, she’s not 15 going to be called. She’s listed as a witness, I think, but we are not calling her,” followed by “And I will avow to that.” (RT 6/7/21 at 98.) She was not 16 called at trial just as [trial counsel] had represented. The record supports, 17 therefore, that Ms. Bush was going to act in her expert capacity to side by side with [trial counsel], likely to assist with the forensic testimony from the 18 government. 19 Additionally, [Movant] cannot show that Ms. Bush would have offered 20 testimony that could raise a serious or reasonable doubt that Torrential Downpour, the proactive law enforcement software, was unreliable as 21 [Movant] claims. (CV ECF 21 at 37-38.) Michele Bush is an employee of 22 Loehrs Forensics, a computer forensic expert firm owned by her mother, Tami Loehrs. (RT 11/26/19 at 119-20.) The firm has taken on approximately 23 200 cases involving the Torrential Downpour software, though Ms. Bush 24 acknowledged that they were not a BitTorrent network expert, and they were not a software company. (RT 9/10/20 at 62.) 25

26 Further, by the time of trial, [trial counsel] had the benefit of the full breadth of litigation which included the parties’ motions, responses, reports, and 27 hearing transcripts relating to the extensive litigation about Torrential 28 Downpour’s reliability. This included the two times Ms. Bush had been called as a witness and was cross-examined about the Loehrs Forensics’ 1 opinions of Torrential Downpour. The litigation also included the testimony and cross-examination of the government’s witness, Detective Robert 2 Erdely, who had also twice testified and been cross-examined at the same 3 two hearings. Detective Erdely was the co-creator of the Torrential Downpour software who explained his knowledge of the BitTorrent file 4 sharing network and its protocols (i.e. the rules for the network), the various 5 client software users use to access the network, a .torrent file, and indices. Detective Erdely also explained Torrential Downpour, a software created for 6 law enforcement use on the BitTorrent network in child exploitation 7 investigations specifically to detect those sharing and receiving child pornography. He explained how Torrential Downpour was created (meaning 8 coded), from scratch and was not a modified version of a product already 9 available. Detective Erdely explained what a log file was (a written record of the connection between the law enforcement computer and suspect 10 computers’ investigative session), and how it recorded the computer data 11 being transmitted by the suspect computer, like it does in the public native setting of the BitTorrent network. 12 13 Thus, prior to trial, [trial counsel] had the benefit of knowing the results of the defense testing in [Movant’s] case and the government expert’s expected 14 testimony and rebuttal to any challenge that Ms. Bush may have made to include that Torrential Downpour operated normally and usually without 15 anomalies during the investigation and during the testing. Mr. Cates also had 16 the benefit of United States v. Hoeffener, 950 F.3d 1037, 1044 (8th Cir. 2020), a case that [Movant] acknowledges in his § 2255 motion. (CV ECF at 17 37.) In Hoeffener, the Eighth Circuit found no abuse of discretion by the 18 magistrate judge who denied the defense motion to compel which requested the government to turn over the source code, manuals, and software for 19 Torrential Downpour to Loehrs Forensics on the bases of lack of materiality 20 to the defense case. Id.

21 [Movant’s Amended] § 2255 motion, furthering any unsupported narrative 22 about the failures of Torrential Downpour, does nothing to upend [trial counsel’s] strategic decision to not call Ms. Bush as a witness. Further, 23 [Movant’s] motion does not come close to describing the large volume of the 24 forensic data located on his desktop and laptop computers that the jurors were presented in the trial exhibits, and by the fact that [Movant] possessed a 25 collection of several thousand child pornography files on a laptop computer 26 underneath his bed. (Doc. 31 at 61-64) (footnotes omitted). Indeed, Respondent goes on to explain why 27 Movant’s Amended § 2255 Motion argument in this matter regarding four Torrential 28 1 Downpour files (Doc. 26 at 38) fails based on the record developed in extensive pretrial 2 hearings at which expert testimony was taken (Doc. 31 at 64-70). Movant’s general reply 3 assertions regarding Ms. Bush (Doc. 36 at 24) are inadequate to state a claim in light of the 4 record. 5 Insofar as Movant includes in his arguments that it was ineffective for his trial 6 counsel not to call Movant as a trial witness, Movant avers in his reply in support of his 7 Amended § 2255 Motion that at the time of trial when it came time for Movant to make 8 the decision to testify or not, Movant was unable to testify given the trial experience (Id. at 9 8). Movant avers that he was “mentally numbed and temporarily unable to gather his 10 faculties for purposes of testifying before the District Court” (Id.). Movant did not report 11 this to the Court when asked on the record about his decision to testify or not (RT 6/24/21 12 at 689; CR Doc. 206 at 34). During a trial break after the presentation of the prosecution’s 13 evidence and denial of a defense motion pursuant to Fed. R. Crim. P. 29, Movant consulted 14 with his trial about his whether Movant would testify or not (RT 6/24/21 at 688-689; CR 15 Doc. 206 at 33-34; see also CR Doc. 169). Upon reconvening, trial counsel stated on the 16 record that it was the defense intention to rest when the jury came back (Id.). When 17 thereafter asked by the Court whether it was Movant’s choice not to testify, Movant stated 18 on the record, “Yes, that is my choice not to testify” (RT 6/24/21 at 689; CR Doc. 206 at 19 34). Further, in his reply in support of his Amended § 2255 Motion, Movant states that 20 had Movant chosen to testify during the trial, Movant’s trial testimony would have been 21 simple and direct denials of any admissions and of the criminal allegations against him 22 (Doc. 36 at 8). Respondent is correct that:

23 In the event he would have testified, [Movant] would have faced a cross- 24 examination that showed the extensive, corroborating forensic data on two computers that were located in his bedroom that pointed to him being 25 responsible. [Trial counsel’s] strategy was to demonstrate, through cross- 26 examination and argument, that the government did not produce anyone who saw [Movant] doing any child pornography activities [such as searching for 27 or watching child pornography], and to cast equal suspicion onto either of 28 [Movant’s] adult roommates or another person who may have frequented their home. [Trial counsel] further attacked the techniques used by law 1 enforcement to gather evidence and conduct interviews. Even though the jury ultimately found [Movant] guilty, this did not render [trial counsel’s] 2 performance ineffective[.] 3 (Doc. 31 at 33). 4 Movant’s assertions in his Amended § 2255 Motion and other filings in this matter 5 are insufficient to state a claim on either Strickland prong regarding trial counsel not calling 6 defense witnesses at trial, including expert witness Michele Bush, investigator Renee 7 DeSaye, and Movant himself. Further, the record conclusively demonstrates that Movant’s 8 ineffective assistance of counsel claim regarding trial counsel not calling expert witness 9 Michele Bush, investigator Renee DeSaye, and/or Movant as trial witnesses fails on both 10 Strickland prongs. 11 5. Summary 12 In considering Movant’s ineffective assistance of counsel claims separately and as 13 a whole, Movant fails to state a claim that any of his counsel’s performances were 14 constitutionally deficient or that he was prejudiced by his counsel’s performances. Indeed, 15 the record clearly reflects that pretrial counsel and trial counsel mounted a skilled defense 16 of Movant from their entry of appearance in the case through the conclusion of their 17 representation of Movant. Neither has Movant made a showing that his appellate counsel’s 18 performance was deficient under Strickland or caused Movant any prejudice. 19 Applying the highly deferential standard for judging representation by all of 20 Movant’s counsel about which Movant complains, Movant has not stated a claim that either 21 that any of his counsel’s representation “amounted to incompetence under ‘prevailing 22 professional norms,’” Richter, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 690), or 23 that there existed a “reasonable probability that, but for counsel’s unprofessional errors, 24 the result of the proceeding would have been different,” Strickland, 466 U.S. at 694. 25 Rather, as discussed above, the record conclusively demonstrates that Movant’s ineffective 26 assistance of counsel claims fail on both of Strickland’s prongs. 27 B. Movant’s Claim Asserting Juror Bias 28 In Ground Four of the Amended § 2255 Motion, Movant alleges that a deliberating 1 juror’s failure to disclose government employment from sixteen years earlier violated 2 Movant’s Fifth and Sixth Amendment rights (Doc. 26 at 34-36). After his conviction, 3 Movant located a self-published book apparently written by Juror 13 who represents that 4 his name is Art Keller (“Juror 13” or “Keller”). Attachment D (Doc. 31-4) to Respondent’s 5 Answer to the Amended § 2255 Motion is at least a substantial part of Juror 13’s entire 6 self-published book on Amazon. The self-published book describes the court environs, the 7 jury trial process, the attorneys, trial judge, witnesses, and evidence from the Juror 13’s 8 perspective after completion of Juror 13’s jury service (Id.). Respondent’s Answer sums 9 up the parties’ positions regarding this ground:

10 [Movant] asserts that Art Keller (Juror 13), a juror in his case who 11 subsequently wrote and self-published a book about his jury service (Attachment D) presents evidence of being biased such that a hearing is 12 necessary. (CV ECF 21 at 35.) The government disagrees with the notion 13 that Mr. Keller brought any bias to the trial, actual or implied or “McDonough bias,” and disagrees that a hearing is necessary. The 14 government requests both that this Court deny his § 2255 motion on this 15 basis, and deny his request for an evidentiary hearing. 16 (Doc. 31 at 48). Respondent’s Answer addresses various forms of bias and argues an 17 evidentiary hearing is unnecessary (Id. at 47-59). 18 In Ground Four of the Amended § 2255 Motion, Movant alleges bias by the book’s 19 author and stresses the references by the book’s author to previous work with and for some 20 United States agencies, including work with the agents for the Federal Bureau of 21 Investigations (“FBI”), the same law enforcement investigating agency in the prosecution 22 of Movant (Doc. 26 at 34-36). Nevertheless, Movant concedes that “[b]ias will not be 23 presumed merely because a juror works in law enforcement or is a federal government 24 employee” (Id. at 36). 25 By way of background, the parties’ proposed juror questionnaire asked for 26 employment history going back ten years (CR Doc. 154-1 at 9, question 20). Nevertheless, 27 at a pretrial conference with counsel, Judge Brnovich shortened the employment history 28 question length to five years (Doc. 31 at 9-10; Doc. 31-1 at 7, question 13; CR Doc. 156; 1 CR Doc. 226 at 5). In the questionnaire sent to prospective jurors, there were no questions 2 asking specifically about serving or having served as a law enforcement officer (Doc. 31- 3 1), but there were questions about the prospective juror’s educational background, spouse’s 4 employment and educational background, and employment of parents, children, and 5 stepchildren (Id.). The questionnaire sent to prospective jurors did ask prospective jurors 6 questions directed generally toward any bias in Question 25 (if juror had any ethical, 7 religious, moral, political, philosophical, or other beliefs), Question 26 (any other reason 8 why juror could not be a fair and impartial juror in the case), and Question 30 (whether 9 juror believed that judicial system was unfair) (Doc. 31-1 at 9-10). Additional separate 10 questions included possibilities for bias related to the nature of the case (i.e., child 11 pornography images, sexual abuse, and use of marijuana) in Questions 27, 28, 29, 31, 32, 12 33, 34, and 35 (Id.). In all, there were thirty-six questions in the twelve page questionnaire 13 (Id.). 14 Prospective jurors were not generally asked about law enforcement experience 15 during trial voir dire (RT 7/21/21 at 7-45; CR Doc. 203 at 7-45). Nevertheless, trial voir 16 dire revealed that the questionnaire was effective to raise issues with impartiality based on 17 relevant law enforcement experience. For example, when Juror No. 1’s training at the 18 police academy came up given his past experience as a juvenile probation officer, Juror 19 No. 1 stated that Juror No. 1 would not tend to believe a law enforcement officer more than 20 a non-law enforcement witness (RT 7/21/21 at 24-25; CR Doc. 203 at 24-25). The Court 21 declined trial counsel’s challenge for cause as to Juror No. 1 due, in part, to Juror No. 1 22 having been retired for some years (RT 7/21/21 at 34-35; CR Doc. 203 at 34-35). 23 During jury selection, answers to the prospective juror questionnaire by Juror 13 24 (believed to be the book’s author) did not lead to any follow up in trial voir dire (RT 7/21/21 25 at 7-45; CR Doc. 203 at 7-45). Indeed, Juror 13 states at the start of the book that since the 26 author left the CIA sixteen years before, he has been a reporter and writer regarding 27 international politics, technology, and national security (31-4 at 1). Upon careful review 28 of the materials, neither the book provided by Respondent nor anything else in the record 1 supports any allegation that Juror 13 was dishonest directly or by omission in the jury 2 questionnaire or voir dire or that Juror 13 was in any way biased. Nor does the record or 3 Movant indicate that Juror 13 introduced impermissible extrinsic evidence into jury 4 deliberations. See Grotemeyer v. Hickman, 393 F.3d 871, 879 (9th Cir. 2004) (“One great 5 advantage of jurors over judges is their diversity of experiences.”); Hard v. Burlington 6 Northern R. Co., 870 F.2d 1454 (9th Cir. 1989). Upon careful review of the record and all 7 the parties’ arguments on this ground, the Court finds accurate and persuasive 8 Respondent’s Answer of Ground Four of the Amended § 2255 Motion (Doc. 31 at 47-59). 9 The record conclusively demonstrates that Movant’s Ground Four of the Amended § 2255 10 Motion fails. 11 C. Evidentiary Hearing 12 For the reasons set forth above, Movant has failed to establish he is entitled to an 13 evidentiary hearing on any of the grounds asserted in the Amended § 2255 Motion. The 14 record conclusively demonstrates that all of the grounds in the Amended § 2255 Motion 15 fail on the merits. Accordingly, Movant is not entitled to an evidentiary hearing in these 16 Section 2255 proceedings. See 28 U.S.C. § 2255(b) (requiring an evidentiary hearing only 17 where “the motion and the files and records of the case conclusively show that the prisoner 18 is entitled to no relief”); United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). 19 Accordingly, undersigned recommends that the Amended § 2255 Motion be denied 20 without an evidentiary hearing. 21 V. CERTIFICATE OF APPEALABILITY 22 A court may issue a certificate of appealability “only if the applicant has made a 23 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A 24 Section 2255 movant must show that “reasonable jurists could debate whether . . . the 25 petition should have been resolved in a different manner or that the issues presented were 26 adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 27 484 (2000) (quotations omitted). A certificate of appealability should be granted for any 28 issue that the movant can demonstrate is debatable among jurists of reason, could be 1 resolved differently by a different court, or is adequate to deserve encouragement to 2 proceed further. Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002). The court 3 must resolve doubts about the propriety of a certificate of appealability in the movant’s 4 favor. Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000). 5 For the reasons set forth above, it is recommended that a certificate of appealability 6 be denied because Movant has failed to make a substantial showing of the denial of a 7 constitutional right. 8 VI. CONCLUSION 9 For the reasons set forth above, it is recommended that the Amended § 2255 Motion 10 (Doc. 26) be denied without an evidentiary hearing. As discussed above, all of the grounds 11 in the Amended § 2255 Motion are without merit and do not warrant an evidentiary hearing. 12 Further, Movant has not made a substantial showing of the denial of a constitutional right 13 in any ground of his Amended § 2255 Motion; thus, a certificate of appealability should be 14 denied. See 28 U.S.C. § 2253(c)(2). 15 Accordingly, 16 IT IS HEREBY RECOMMENDED that the Amended § 2255 Motion (Doc. 26) 17 be denied with prejudice without an evidentiary hearing and that the Clerk of Court be 18 directed to terminate this matter. 19 IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied 20 because Movant has not made a substantial showing of the denial of a constitutional right. 21 This recommendation is not an order that is immediately appealable to the Ninth 22 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal 23 Rules of Appellate Procedure should not be filed until entry of the District Court’s 24 judgment. The parties shall have fourteen days from the date of service of a copy of this 25 recommendation within which to file specific written objections with the Court. See 28 26 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which 27 to file responses to any objections. Failure to file timely objections to the Magistrate 28 Judge’s Report and Recommendation may result in the acceptance of the Report and 1 || Recommendation by the District Court without further review. See United States v. Reyna- 2|| Tapia, 328 F.3d 1114, 1121 (th Cir. 2003). Failure to file timely objections to any factual || determination of the Magistrate Judge may be considered a waiver of a party’s right to 4|| appellate review of the findings of fact in an order or judgment entered pursuant to the 5|| Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. In addition, LRCiv 7.2(e)(3) || provides that “[u]nless otherwise permitted by the Court, an objection to a Report and 7\| Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.” g Dated this 24th day of February, 2025. 9 □ 10 i Lira Uf Lin / 11 Honorable Deborah M. Fine United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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