United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS.
37, 39, 42]
Y. Pearson United States District Judge.
before the Court is Petitioner's Motion to Vacate
pursuant to 28 U.S.C. § 2255 (ECF No. 37),
Expedited Motion for Release pending habeas review (ECF No.
39) and Expedited Motion for Summary Judgment (ECF No. 42).
The Government responded to the Motions to Vacate and for
Release (ECF No. 40) and Petitioner replied (ECF No. 41).
following reason, the Court denies Petitioner's Motions.
case stems from two unrelated child pornography
investigations. First, Internet service provider United
Online reported a Cyber Tip to the National Center for
Missing and Exploited Children. ECF No. 40 at PageID #: 321.
United Online noted that the email address
“email@example.com” sent an email containing a
zip file of twenty images depicting child pornography to a
United Online customer. Id. Through a series of
subpoenas to United Online, Google Inc., and Time Warner
Cable, it was determined that the email address was
associated with an IP address assigned to Teresa Butner,
Petitioner's wife. Id. at PageID #: 321-22.
Petitioner had access to the email account, as well as a
second account, “Dan06@neo.rr.com.” Id.
separate, unrelated investigation, an Australian citizen was
arrested by the Queensland Police Service for using his email
account to distribute child pornography. Id. at
PageID #: 322. Queensland Police investigated his email
account, finding that he had sent over 600 emails to 111
different email accounts. Id. Most of these emails
contained child pornography or discussed the users'
interest in the subject. Id. The investigation led
to the discovery of a child pornography cohort exchanging
emails between “firstname.lastname@example.org” and
“email@example.com” (also referred to as
“Jesus Garcia”). Id. at PageID #:
322-23. The pair exchanged numerous emails, in which they
described their penchants for child pornography and traded
various images, videos, and audio files depicting
prepubsecent boys and girls in the nude or performing various
sex acts. Id. at PageID #: 323-26. In several
emails, “firstname.lastname@example.org” requested that
Jesus Garcia email him at “email@example.com.”
source header associated with the emails sent by
firstname.lastname@example.org revealed that they were sent from two IP
addresses. Id. at PageID #: 325. Further
investigation revealed that Teresa Butner was the account
holder for these IP addresses, as well as a third IP address
associated with the account. Id. at PageID #: 326.
with this information, Special Agents executed a search
warrant at Petitioner's home. Id. at 326-27; see
also ECF No. 40-1 at PageID #: 354-69 (affidavit in support
of application for a search warrant). Petitioner agreed to
speak with the agents. ECF No. 40 at PageID #: 326. After
being advised that speaking with agents was voluntary, and he
was free to leave, Petitioner told agents that he used the
email address “Dan06@neo.rr.com, ” and that he
chose the number “06” in his email address as a
homage to his favorite football player. He also noted that he
and his wife were the only computer users, but his wife
rarely used the computer, and she did not use email.
review of Petitioner's computer revealed 8, 124 image
files and 958 video files depicting child pornography.
Id. at PageID #: 327. The files were organized into
subcategories based on the age of the children (e.g., Boys
1-5); the people in the videos (e.g., “Boys and
Men” or “Girls and Men”) and their content
(e.g., “R” included videos of rape; “sleep
or drugged” included videos of children being molested
while drugged or asleep). Id.
also discovered that Petitioner had taken photos of children
and wrote first-person accounts of sexual acts with children.
For example, he sent pictures of a seven-year-old male
relative in underwear and a bathing suit to a pedophile that
was sexually aroused by boys' feet. Id. In a
different email, he described the rape of an eight-year-old
boy in great detail, asking the email recipient, “Have
you ever fuck [sic] a little boy? I have . . ., felt great .
. .:)”. Id.
was charged in a two count indictment on one count of receipt
and distribution of visual depictions involving real minors
engaged in sexually explicit conduct in violation of 18
U.S.C. § 2252(a)(2), and one count of possession of
child pornography, in violation of 18 U.S.C. §
2252A(a)(5)(B). ECF No. 8. Petitioner pleaded guilty to the
indictment without a plea agreement. ECF No. 31. Petitioner
was 62 years old when sentenced. The Court varied downward
from the advisory guidelines range of 210 to 240 months and
sentenced Petitioner to a 180-month term of imprisonment on
Count 1 and a 120-month term of imprisonment on Count 2, to
be served concurrently, followed by a ten-year term of
supervised release and a $200 special assessment. Petitioner
appealed, arguing that the Court failed to take into
consideration Petitioner's life expectancy, as predicted
by the Center for Disease Control (“CDC”), and
that the Court should have considered the Sentencing
Commission's findings concerning child pornography.
United States v. Bowman, No. 14-3535, slip op. at 3
(6th Cir. May 28, 2015). The Sixth Circuit Court of Appeals
affirmed Petitioner's sentence. Id.; ECF No. 36.
Standard of Review
moves to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255, asserting four grounds for relief.
Section 2255 of Title 28, United States Code, provides:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or 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, may move the court
which imposed the sentence to vacate, set aside or correct
order to prevail upon a Section 2255 motion, the petitioner
must allege as a basis for relief: “(1) an error of
constitutional magnitude; (2) a sentence imposed outside the
statutory limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding
invalid.” Mallett v. United States, 334 F.3d
491, 496-97 (6th Cir. 2003) (quoting Weinberger v. United
States, 268 F.3d 346, 351 (6th Cir. 2001)).