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Bowman v. United States

United States District Court, N.D. Ohio, Eastern Division

August 21, 2017

DANIEL JAY BOWMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS. 37, 39, 42]

          Benita Y. Pearson United States District Judge.

         Pending before the Court is Petitioner's Motion to Vacate pursuant to 28 U.S.C. § 2255 (ECF No. 37), [1] 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).

         For the following reason, the Court denies Petitioner's Motions.

         I. Background

         This 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 “joyeme06@gmail.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.

         In a 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 “joey006@lavabit.com” and “jesus083187@yahoo.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, “joey006@lavabit.com” requested that Jesus Garcia email him at “joeye14@gmail.com.” Id.

         The source header associated with the emails sent by joey006@lavabit.com 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.

         Armed 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. Id.

         A 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.

         Agents 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.

         Petitioner 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.

         II. Standard of Review

         Petitioner 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 the sentence.

         In 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)).

         III. ...


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