United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard, United States District Judge.
matter is before the Court upon initial review of the pro se
motion to vacate under 28 U.S.C. § 2255 (filing 46) and
the supplemental motion to vacate (filing 49) filed by the
defendant, Richard E. Cooley. The initial motion was timely
filed less than 1 year after the defendant's conviction
became final. See § 2255(f). The Court's
initial review is governed by Rule 4(b) of the Rules
Governing Section 2255 Proceedings for the United States
District Courts, which provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
§ 2255 movant is entitled to an evidentiary hearing
unless the motion and the files and records of the case
conclusively show that the movant is entitled to no relief.
§ 2255(b); Sinisterra v. United States, 600
F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to
vacate under § 2255 may be summarily dismissed without a
hearing if (1) the movant's allegations, accepted as
true, would not entitle the movant to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact. Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995); see
also Sinisterra, 600 F.3d at 906.
defendant was charged with one count of knowingly receiving
visual depictions of a minor engaging in sexually explicit
conduct, in violation of 18 U.S.C. § 2252A(a)(2), and
one count of possessing child pornography, in violation of 18
U.S.C. § 2252(a)(4)(B). Filing 1. He petitioned to plead
guilty to the first charge, and in the petition, he
acknowledged receiving a "zip drive" (a flash
drive), hand-delivered by a friend, on which child
pornography was stored. Filing 19. The defendant's plea
agreement stipulated to this factual basis for the plea:
Defendant received a thumb drive from [a friend] in August
2015. The thumb drive consisted of child pornography. Some of
the images involved a three year old child posed in sexually
suggestive poses. [The defendant's friend] had taken
those pictures himself and identified the victim in emails
sent between himself and the Defendant.
Other images of child pornography were on the thumb drive.
The drive contained approximately 26 videos and 400 images of
child pornography. A report from the National Center for
Missing and Exploited Children identified at least 26
identifiable victims. These identifiable victims resided in
various states and countries when their images were taken.
Recovered emails between [the defendant's friend] and the
Defendant revealed a shared interest in child pornography.
During the search of the Defendant's residence in
Wauneta, Nebraska on January 10, 2014, the officers, in
addition to the thumb drive, located 9 magazines of incest
genre. Defendant was interviewed by law enforcement and
admitted receiving the thumb drive from [the defendant's
friend] and reviewing the materials.
20 at 2. The plea agreement also provided that by signing it,
the defendant was certifying he had read it, and was
satisfied with his counsel and with counsel's
representation. Filing 20 at 7. In exchange for the
defendant's plea, the government agreed to dismiss the
second charge against the defendant and recommend a sentence
at the low end of the Sentencing Guidelines range. Filing 20
at 1, 4.
change of plea hearing, the defendant testified under oath
that he had read the plea agreement and signed it. He again
said that he was satisfied with his attorney, and that his
attorney had investigated the case sufficiently. Filing
24 at 8. The Magistrate Judge engaged the defendant in a
detailed colloquy pursuant to Fed. R. Crim. P. 11(b). Filing
24 at 3-23. The government recited the factual basis for the
plea, as set forth above, and the defendant agreed under oath
that it was true. Filing 24 at 19-22.
presentence investigation report was prepared adding
additional details. Filing 40. In particular, the presentence
report includes an online chat transcript between the
defendant and his friend, which can be generally described as
reflecting not only their interest in, but their enthusiasm
for, child pornography and sex with children, including very
young children. Filing 40 at 4-6. And the presentence report
includes the defendant's own version of the offense,
which in relevant part is as follows:
I first met [my friend] when he came to install my wireless
internet. I looked at porn on a reg. basis but he told me he
had some special stuff that he was willing to share with me
that he couldn't email it to me because it was illegal
and he didn't want to get caught. He would download it
for me on a zip drive. I should have known better but I
didn't. Then we started emailing each other and like boys
in a locker room started bragging about what he had done and
what we would do.
40 at 7. The Court also inquired at sentencing whether
counsel had reviewed the presentence report with his client,
and he had.
presentence report found that the defendant's offense
level (including a 3-level reduction for acceptance of
responsibility) was 30, which combined with a criminal
history of I for a recommended Guidelines range of 97 to 121
months' imprisonment. Filing 40 at 10-11, 18. The Court
varied from the Guidelines, based on its decision in
United States v. Abraham, 944 F.Supp.2d 723, 732-33
(D. Neb. 2013), and found the Guidelines range to be 60 to 71
months. Filing 43 at 1, 4. The Court sentenced the
defendant to 70 months' imprisonment. Filing 42 at 2.
addressing the merits of the defendant's claims, it is
necessary to address a procedural matter. The defendant has
filed two different motions. The first is clearly a
§ 2255 motion, set forth on a version of the
Court's form AO 243. Filing 45. The second is
captioned "Motion to Hold that Prejudice Must Be
Presumed" (filing 49), and it restates the claims raised
in the defendant's first motion, along with some
additional allegations and argument.
Eighth Circuit has held that when a pro se
petitioner files a second § 2255 motion while his first
§ 2255 motion is still pending before the district
court, the second motion should be construed as a motion to
amend. United States v. Sellner,773 F.3d 927,
931-32 (8th Cir. 2014). Furthermore, in considering pro
se litigants' amended pleadings, the Court may
consider the amended pleading as supplemental to, rather than
as superseding, the original pleading. NECivR
15.1(b). The Court will do so here: the Court will ...