United States District Court, D. Delaware
PAUL E. PAVULAK, Movant/Movant,
UNITED STATES OF AMERICA, Respondent/Plaintiff. Civ. No. 14-290-SLR
E. Pavulak. Pro se movant.
Weede. Assistant United States Attorney, United States
Department of Justice, Wilmington, Delaware. Counsel for
ROBINSON, District Judge.
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.
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)
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)
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.
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
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.
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)
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
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.
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.
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.
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)
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)
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
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)
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)
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).
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").
Claim One: Unconstitutional Jury Selection Process
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).
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.
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
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.
Claim Two: Warrants Lacked Probable Cause
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).
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
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
Claim Three: Insufficient Evidence
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.
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. See Pavulak, 700 F.3d at 669.
on the foregoing, the court declines to review the
movant's insufficient evidence argument again.
Accordingly, the court will deny claim three as procedurally
Claim Four: Ineffective ...