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Pavulak v. United States

United States District Court, D. Delaware

March 31, 2017

PAUL E. PAVULAK, Movant/Movant,
v.
UNITED STATES OF AMERICA, Respondent/Plaintiff. Civ. No. 14-290-SLR

          Paul E. Pavulak. Pro se movant.

          Shawn Weede. Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Counsel for respondent.

          MEMORANDUM OPINION

          ROBINSON, District Judge.

         I. INTRODUCTION

         Paul E. Pavujak ("movant") is a federal inmate currently confined at the USP Tucson in Tucson, Arizona. Movant timely filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (D.I. 135) The government filed an answer in opposition. (D.I. 157) For the reasons discussed, the court will deny movant's § 2255 motion without holding an evidentiary hearing.

         II. BACKGROUND

         A. Factual Background

         After being released from prison on July 1, 2008, movant was required to register as a sex offender by virtue of two prior convictions for unlawful sexual contact with minors. (D.I. 157, Exs. 1-4) On or about August 18, 2008, movant created a Yahoo ' account with the username"Pavy224."(D.I. 80 at 14-15; D.I. 164, Ex. 130B) Inorabout August 2008, movant also created a profile on the website "cherryblossoms.com, " which is used by sex tourists to solicit Philippine prostitutes. (D.I. 165, Ex. 186; D.I. 80 at 86-88, 124-127) In his profile, movant wrote that he was seeking "a lover" and that he would be "making several visits to the Philippines." (D.I. 165, Ex. 186)

         Movant then began conducting online video and written chats (including webcam sessions) with various females in the Philippines, during which he expressed a sexual interest in minor and young adult girls. On August 26, 2008, movant emailed a woman later identified as Ara Duran, of Cebu, Philippines. (D.I. 80 at 93-95; D.I. 165, Exs. 198-201)

         Movant subsequently engaged in an online and physical relationship with Duran, which included his traveling to the Philippines in December 2008 and January 2009 to meet her and her young daughter ("Jane Doe"). (D.I. 161, Ex. 77; D.I. 164, Exs. 131-136, 141, 175; D.I. 167, Ex. 292; D.I. 80 at 27-31) In particular, movant stayed with Duran and Jane Doe between December 16 and December 28, 2008. (D.I. 161, Exs. 70-71) Movant took numerous photographs of himself together with Duran and Jane Doe using his Casio digital camera. (D.I. 165, Exs. 197-202; D.I. 167, Exs. 279-81) A number of these photographs depict Duran and/or movant nude or engaging in sexual activity. (D.I. 166, Exs. 257, 258A, 259A; D.I. 167, Ex. 279) Others depict them in public places. (D.I. 166, Exs. 260-261; D.I. 167, Exs. 279-281) Movant also used that camera to photograph Duran and Jane Doe with a Gateway laptop computer. (D.I. 165, Exs 199-200) In some of these photographs, Jane Doe's pubic area appears to be either exposed or loosely covered with a diaper. (D.I. 165, Exs. 199-200)

         Movant also recorded a number of videos depicting him and Duran engaged in sexual acts. (D.I. 166, Exs. 258, 259; D.I. 167, Ex. 283; D.I. 80, at 59-60) One video depicts Duran performing oral sex on movant. (D.I. 167, Ex. 283) Near the beginning of the video, movant states: "This will be [Jane Doe's] training video. You show her how to do it." Id.

         Another video depicts Duran, Jane Doe and movant in a hotel room. (D.I. 167, Ex. 285) The video was recorded from a webcam attached to the laptop. The video begins with Jane Doe seated on Duran's lap. Jane Doe and Duran are clothed and appear to be watching something on the computer screen. Movant appears in the camera frame completely nude and standing immediately next to the seated Duran and child. In portions of the video, movant's penis and pubic area are visible in the camera frame in close proximity to Jane Doe's face and torso. The child begins to cry. Movant then walks behind them and sits on the bed and dresses. Duran approaches movant and kisses him, while he grabs her pubic area. The child runs to her mother and cries. Movant goes over to the laptop and turns off the webcam. Id.

         As he left the Philippines on January 13, 2009, movant used his Nokia cell phone to engage in a text message conversation with Duran regarding his plan for performing sexual acts Jane Doe on his next trip to the Philippines; his desire to watch Jane Doe on his webcam using a sex toy he supplied to Duran; and encouraging Duran to perform sexual acts on the child to prepare her for movant's return. (D.I. 167, Ex. 288; D.I. 79 at 136-145)

         In the fall of 2008, the Delaware State Police ("DSP") Sex Offender Registry Unit received tips that movant was working and staying at his adult children's office, CTI, which he had not reported on his sex offender registration documents. (D.I. 83 at 54-55) Detective Robert Jones received information from two CTI technicians (Curtis Mack and Jahdel Riggs) that movant had been working at CTI since the summer of 2008. (D.I. 83 at 56-57, 253-55, 275-77) They also reported that they had witnessed movant using computers at the office to view sexually suggestive images of what appeared to them to be minor females. Id. at 58, 83-85, 260, 279-80, 287., In addition, both witnesses reported that they had seen movant on the "cherryblossoms.com" website and engaged in webcam sessions with various females who were posing suggestively. Id.

         On January 14, 2009, movant arrived at Philadelphia International Airport on a flight from the Philippines. (D.I. 167, Ex. 292; D.I. 83 at 61-62, 290) Movant was carrying a laptop bag containing power cord, computer equipment, but no laptop. (D.I. 83 at 62, 106, 292) Movant told a Customs agent that he left the laptop in the Philippines. Id. at 292. Law enforcement agents followed movant as he left the airport in a vehicle registered to his daughter, and was driven directly to the CTI office. Id. at 62-65. Upon arriving there, movant went inside alone. Id. Agents observed movant go into a back office and eventually turn out the light. Id.

         On January 18, 2009, movant engaged in another webcam chat with Ara Duran. (D.I. 167, Ex. 275) Jane Doe was with Duran during this webcam chat. The conversation quickly turned sexual, and movant instructed Dura to display Jane Doe's genitals on the webcam. Id.

         At approximately 7:30 a.m. on January 19, 2009, DSP officers executed a search warrant at the CTI office occupied by movant. (D.I. 83 at 65, 106-107) Movant was present for the search. (D.I. 159, Exs. 25-27; D.I. 83 at 67-70, 112) In a post-arrest interview, movant admitted that he occupied the rear office in the CTI suite and had been "helping out" at the business by working about 10-20 hours per week. (D.I. 83 at 72-73) He also admitted that his email address was Pavy224@yahoo.com, and that he had traveled to the Philippines between December 10, 2008 and January 14, 2009. Id. at 76-77, 83.

         Many items showing movant's use and control over the rear office were documented, including sleeping items, toiletries, food and laundry (D.I. 160, Exs. 43-48); a laptop computer, a Casio digital camera and memory cards found to contain movant's chats, work-related information, and photographs of movant, Duran, Jane Doe and other females (D.I. 160, Exs. 43, 49-50, 52, 56; D.I. 161, Exs. 65- 66); a Nokia cellular telephone containing movant's text messages to Duran (D.I. 161, Ex. 64; D.I. 167, Ex. 288); documents relating to movant's travel to the Philippines and visit with Duran (D.I. 161, Exs. 70-71, 74, 77, 83-86; D.I. 162, Ex. 93); notes on various foreign females with whom movant was chatting online and planned to meet, as well as notes relating to jobs (D.I. 162, Ex. 97); and movant's sex offender registration, banking and insurance documents. (D.I. 160, Ex. 51; D.I. 161, Ex. 89; D.I. 162, Ex. 104; D.I.163, Exs. 106, 112)

         A desktop computer was seized from the front receptionist area of the suite. (D.I. 160, Exs. 23, 30, 33) This computer was found to contain approximately 2, 904 thumbnail images of child pornography. (D.I. 80 at 200:18-209:25; D.I. 165, Exs. 190-95; D.I. 167, Ex. 291) The computer also contained numerous digital photographs of movant in various settings. (D.I. 165, Exs. 187-188; D.I. 80 at 140:11-147:18) Some of these images also appear on movant's "cherryblossoms.com" webpage. (D.I. 80 at 147:3-18) The computer also contained hundreds of chat logs involving "pavy224" and females in the Philippines, including 11 chat logs with Ara Duran. (D.I. 80 at 149:10-153:17; D.I. 164, Ex. 174)

         A laptop computer seized from movant's rear office in the CTI suite contained approximately 2, 811 image files of child pornography. (D.I. 166, Exs. 261-269; D.I. 167, Ex. 291; D.I. 79 at 62:24-63:23, 68:2-70:23, 107:4-109:10) Twenty-nine of the images of child pornography, along with forty-nine images of movant, Duran and adult pornography, had been accessed and edited using Windows Photo Gallery between September and November 2008. (D.I. 165, Ex. 238; D.I. 167, Ex. 295; D.I. 79, 62:24-63:23, 68:2-70:23; D.I. 81 at 73:20-75-18) These images were saved in Windows Photo Gallery on six dates between September 13 and November 22, 2008, while movant was working and engaging in online chats from the CTI office. (D.I. 79 at 76:8-25) A number of the images of child pornography had been accessed and edited on the same dates and around the same times as had images of movant. (D.I. 165, Exs. 209-237, 238, 240-44, 246-54; D.I. 167, Ex. 295; D.I. 79 at 71:18-82:11, 92:7-101:6) Most of these dates were on weekends or Tuesday nights, when other workers were not at the office and when movant generally engaged in his online chats. (D.I. 79 at 77:7-78:12) Found in other sections of the laptop hard drive (outside of Windows Photo Gallery) were numerous images of movant, Duran and Jane Doe, taken with movant's Casio digital camera (also seized from the rear office). (D.I. 166, Exs. 246-257, 260; D.I. 79 at 103:7-107:21)

         The laptop computer also contained chat logs for movant's online chats, including those with Duran. (D.I. 166. Exs. 270-273; D.I. 167, Exs. 274-275; D.I. 79 at 110:22-121:4, 124:24-133:9) There were more than 300 log-ins to movant's "pavy224" account on that laptop. (D.I. 81 at 87:1-8)

         B. Procedural Background

         Movant was indicted on the following charges: (1) failure to register and to update a registration as a sex offender, in violation of 18 U.S.C. § 2250(a); (2) possession of child pornography, in violation of 18 U.S.C. § 2252(a)(5)(B); (3) attempted production of child pornography, in violation of 18 U.S.C. § 2251(a); (4) attempted coercion and enticement of a minor, in violation of18 U.S.C. § 2422(b); and (5) committing a felony offense involving a minor while registered as a sex offender, in violation of 18 U.S.C. § 2260 A. (D.I. 12; D.I. 13) In October 2009, movant moved for a Franks hearing and to suppress the evidence seized from his office and Yahoo account. (D.I. 20) The court denied that motion. (D.I. 29) In September 2010, a jury convicted movant of all five counts of the indictment. (D.I. 72; D.I. 73) Movant, filed a motion for judgment of acquittal or for a post-trial Franks hearing, which the court denied. (D.I. 93; D.I. 118) On October 5, 2011, the court sentenced movant to: (1) life imprisonment on count three (attempted production of child pornography); (2) a consecutive term of imprisonment of 120 months on count 5 (enhanced penalties for registered sex offenders); and (3) concurrent terms of imprisonment of 120 months on count one (failure to register as a sex offender), count two (possession of child pornography), and count four (attempted coercion and enticement of a minor). (D.I. 124)

         Movant appealed, and the Third Circuit Court of Appeals affirmed his convictions and sentence. See United States v. Pavulak, 700 F.3d 651 (3d Cir. 2012).

         III. DISCUSSION

         Movant timely filed his pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, asserting a total of eleven claims. However, given their repetition, the court will group the arguments into the following six claims: (1) the jury selection process was unconstitutional; (2) the good faith exception was inapplicable to the warrantless search of movant's office and email account; (3) there was insufficient evidence to support movant's conviction for knowing possession of child pornography; (4) defense counsel provided ineffective assistance on numerous occasions; (5) the court violated movant's due process rights by finding facts that raised his "statutory minimum" sentence; (6) defense counsel's cumulative errors warrant relief; and (7) movant's conviction under 18 U.S.C. § 2250 (failure to register as a sex offender and update sex offender registration) should be vacated because his predicate sex offenses pre-date the effective date of the Sex Offender Registration and Notification Act ("SORNA").

         A. Claim One: Unconstitutional Jury Selection Process

         Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct his sentence on the grounds 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.

28 U.S.C. § 2255. The relief sought under 28 U.S.C. § 2255 is reserved for extraordinary circumstances. See Brecht v. Abrahamson, 507 U.S. 619 (1993). If a movant fails to raise a claim on direct appeal, that claim is procedurally defaulted and cannot thereafter be reviewed pursuant to 28 U.S.C. § 2255 unless the movant demonstrates cause for the default and prejudice resulting therefrom, or that he is actually innocent. See Bousley v. United States, 523 U.S. 614, 616, 621-23 (1998). To establish cause for a default, a movant must demonstrate that "some objective factor external to the defense impeded counsel's efforts to raise the claim." United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993), abrogated on other grounds as explained in United States v. Peppers, 482 F.App'x 702, 704 n.5 (3d Cir. 2012). Significantly, an attorney's failure to preserve or raise a claim on direct appeal can constitute cause for a movant's procedural default only if counsel's failure amounts to constitutionally ineffective assistance of counsel. See Hodge v. United States, 554 F.3d 372, 379 (3d Cir. 2009). To establish prejudice, a movant must show "that the errors at [his] trial.. . worked to [his] actual and substantial disadvantage, infecting [his] entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 179 (1982). Notably, if the movant fails to demonstrate cause, a court is not required to determine if the movant was prejudiced by the default. See Smith v. Murray, 477 U.S. 527, 533 (1986).

         In claim one, movant contends that his Sixth Amendment right to a public trial and his statutory right to be present "at every stage of the trial" under Federal Rule of Criminal Procedure 43(a) were violated. More specifically, he complains about the court's act of questioning individual jurors in chambers without him present.[1]

         The record in this case reveals that movant defaulted claim one because he did not raise it to this court during jury selection or to the Third Circuit on direct appeal. Movant attempts to establish cause by blaming defense counsel for not challenging the process during jury selection or raising the issue on direct appeal. This argument is unavailing. An attorney's error can constitute cause for a procedural default, but only if the attorney's error amounted to constitutionally ineffective assistance. See Murray, 477 U.S. at 488-89. As discussed later in this opinion, the court concludes that defense counsel's actions with respect to jury selection did not amount to constitutionally ineffective assistance. See infra at 13-16. Therefore, movant has failed to establish defense counsel's performance as cause for his default of claim one.

         Given movant's failure to establish cause, the court will not address the issue of prejudice. The court also notes that movant's default of claim one cannot be excused under the miscarriage of justice exception to the default doctrine, because he has not provided new reliable evidence of his actual innocence. Accordingly, the court will deny claim one as procedurally barred.

         B. Claim Two: Warrants Lacked Probable Cause

         "Once a legal argument has been litigated and decided adversely to a criminal movant at his trial and on direct appeal, it is within the discretion of the district court to decline to reconsider those arguments if raised again in collateral proceedings under 28 U.S.C. § 2255." United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir. 1981). As a general rule, relitigation of a claim considered on direct appeal is barred unless: (1) there is newly discovered evidence that could not reasonably have been presented at the original trial; (2) there is a change in applicable law; (3) counsel provided ineffective assistance; or (4) other circumstances indicate that the accused did not receive full and fair consideration of his federal constitutional and statutory claims. See United States v. Palumbo, 608 F.2d 529, 533 (3d Cir. 1979); see also United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993); Davis v. United States, 417 U.S. 333, 342 (1974).

         In claim two, movant asserts that defense counsel and appellate counsel failed to argue that the good faith exception to the warrant requirement should not have applied because the affiant for the search warrant application made false statements relating to tips about movant viewing "child pornography." The government, however, interprets the claim as also alleging a free standing claim. Therefore, the court will exercise prudence and view the claim as both a free standing argument and as an ineffective assistance of counsel argument.[2]

         Movant's argument regarding the inapplicability of the good faith exception to the warrant requirement was fully considered by the Third Circuit during movant's direct appeal. Since there are no other Palumbo factors compelling post-conviction review, the court declines to review the issues again. Accordingly, the court will deny claim two as procedurally barred.

         B. Claim Three: Insufficient Evidence

         Movant contends that the child pornography images found on his laptop "originated" during a time he was in prison. As such, he contends that the jury could not have found that he knowingly possessed the images of the child pornography found on his laptop.

         Movant's argument regarding the "origination" of the child pornography images merely re-characterizes his argument in his motion for acquittal and in his direct appeal that there was insufficient evidence to show that he - as opposed to someone else at the CTI office - knowingly possessed thousands of pornography images found to have been accessed on his laptop and another computer in the office. Movant raised this same argument in his motion for acquittal, which the court denied. (D.I. 188) Movant also raised this same argument on direct appeal, and the Third Circuit denied it. See Pavulak, 700 F.3d at 661-65. Finally, there are no other Palumbo factors compelling post-conviction review. Movant's undefined assertion that the images "originated" prior to his release from prison does not constitute newly discovered evidence, nor does it negate the "ample evidence" presented to the jury demonstrating that he knowingly possessed those images on the HP laptop.[3] See Pavulak, 700 F.3d at 669.

         Based on the foregoing, the court declines to review the movant's insufficient evidence argument again. Accordingly, the court will deny claim three as procedurally barred.

         D. Claim Four: Ineffective ...


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