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United States v. Cooley

United States District Court, D. Nebraska

October 28, 2016



          John M. Gerrard, United States District Judge.

         This 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.

         A § 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.


         The 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.

         Filing 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.

         As his 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.

         A 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.

         Filing 40 at 7. The Court also inquired at sentencing whether counsel had reviewed the presentence report with his client, and he had.

         The 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.


         Before 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.

         The 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 ...

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