United States District Court, D. Nebraska
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on defendant Kirk Cottom's
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255, Filing No. 302 in 8:13CR108 and Filing
No. 43 in 8:15CR239. He challenges his child pornography
conviction and sentence. This is a case involving the
government's use of a Network Investigative Technique
(“NIT”) warrant to monitor and intercept internet
traffic of child pornography.
entered conditional pleas of guilty to Counts II of the
Second Superseding Indictment in Nebraska and to Count I of
the Indictment in the Western District of New York. He was
sentenced to 76 months of imprisonment. He appealed and his
conviction and sentence were affirmed. United States v.
Cottom, 679 Fed.Appx. 518 (8th Cir. 2017). The present
motion is Cottom's first motion under 28 U.S.C. §
2255. The motion is timely.
§ 2255 motion, the defendant alleges he was denied
effective assistance of counsel by several attorneys. With
respect to his retained attorney Joseph Gross, he alleges Mr.
Gross failed to communicate with him, ignored his requests,
failed to hire experts, failed to properly investigate,
failed to move to suppress the search of Cottom's house,
failed to challenge the NIT warrant for lack of jurisdiction.
With respect to court-appointed counsel Joseph L. Howard, he
alleges counsel failed to communicate with the defendant, was
not loyal to the defendant, did not invoke a relationship of
trust and confident with the defendant, did not investigate
all avenues for this case, and asserted undue influence in
the plea bargaining stage of this case. He also alleges
ineffective assistance by court appointed counsel in the
Western District of New York, Steven G. Slowinski, in that
Slowinski allegedly failed to keep him apprised and informed
of case updates, case progression, and plea discussions and
failed to challenge the NIT warrant. He further alleges that
he was denied the right to counsel by the coercive actions of
Howard and Slowinski. He also alleges he was deprived of his
Fifth Amendment right to due process by reason of
prosecutorial misconduct and because his plea is invalid.
Further, he asserts a violation of his Fourth Amendment
rights because he contends he was subject to an
unconstitutional search and seizure.
prisoner who moves to vacate his sentence under § 2255
must show that the sentence was imposed in violation of the
Constitution or laws of the United States, that the court was
without jurisdiction to impose such sentence, that the
sentence was in excess of the maximum authorized by law, or
that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. Under the Rules Governing Section 2255
Proceedings for the United States District Courts
(“2255 Rules”), the court must perform an initial
review of the defendant's § 2255 motion.
See28 U.S.C. § 2255, Rule 4(b). The rules
provide that unless “it plainly appears from the face
of the motion and any annexed exhibits and the prior
proceedings in the case that the movant is not entitled to
relief in the district court, ” the court must order
the United States Attorney to respond to the motion.
initial review, the court finds that “it does not
plainly appear that the defendant is entitled to no relief,
” and the government should be required to answer and
to submit a brief on the merits. The defendant will be
offered an opportunity to respond thereto. On receipt of the
briefs, the court will determine whether an evidentiary
hearing is required. See Rule 8(a) of the Rules
Governing Section 2255 Proceedings for the United States
THEREFORE, IT IS ORDERED:
1. On initial review, the court finds that summary dismissal
is not appropriate.
2. The United States shall file an answer to the
defendant's § 2255 motion, together with a brief on
the merits, within 21 days of the date of this order.
3. The defendant shall have 21 days thereafter to file a
response. Dated this 18th day of May, 2018.
 The NIT consists of computer code
employed on child pornography websites to identify users of
those sites. Investigators use a NIT to identify users of
“Tor, ” a network that hides the location and
user data of internet users. United States v.
Horton, 863 F.3d 1041, 1045 (8th Cir. 2017).
 Under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), there is a one-year
statute of limitations on motions by prisoners seeking to
modify, vacate or correct their federal sentences.
Johnson v. United States, 544 U.S. 295, 299 (2005).
Generally, that year begins to run from “the date on
which the judgment of conviction becomes final.” 28
U.S.C. § 2255 (f)(1). With regard to post-conviction
relief for federal prisoners, the conclusion of direct review
occurs when the Supreme Court affirms a conviction on the
merits on direct review or denies a petition for a writ of
certiorari. Jimenez v. Quarterman, 555 U.S. 113, 119
(2009). If a federal prisoner chooses not to seek direct
review in the Supreme Court, then the conviction becomes
final when the time for filing a certiorari petition expires.
Id. Cottom did not file a petition for a writ of
certiorari. The time in which ...