United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on the defendant's motion to
vacate, set aside, or correct sentence under 28 U.S.C. §
2255, Filing No. 500. The defendant challenges the
government's use of a Network Investigative Technique
(“NIT”) warrant to monitor and intercept internet
traffic of child pornography.
was charged in Count I of a two-count Indictment with receipt
and attempted receipt of child pornography, in violation of
18 U.S.C. § 2252A(a)(2) and (b)(1), and in Count II with
knowingly accessing a computer disk or other material with
intent to view child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). Filing No. 1. Welch was one
of many out-of-state defendants charged with receiving child
pornography through the Tor network from servers housing
sites that contained child pornography (PedoBook, Pedoboard,
and TB2) in Nebraska. See, e.g., United States
v. Cottom, 679 Fed.Appx. 518 (8th Cir. 2017); United
States v. Huyck, 849 F.3d 432 (8th Cir. 2017);
United States v. Laurita, 821 F.3d 1020 (8th Cir.
2016). The facts are set forth in the Eighth Circuit Court of
Appeals' decision in Welch's direct appeal and need
not be repeated here, except as necessary to the court's
opinion. See United States v. Welch, 811
F.3d 275, 280-81 (8th Cir. 2016), cert. denied, 136
S.Ct. 2476 (June 13 2016).
trial, Welch filed various pre-trial motions, but did not
challenge venue. He filed a motion to suppress the evidence
found in the NIT warrant and his motion was consolidated with
those of other defendants allegedly using internet
pornography sites such as PedoBook, Pedoboard, and TB2. Welch
alleged violations of Federal Rule of Criminal Procedure 41
and denial of his Fourth Amendment rights as the result of
the government's use of a court-authorized NIT. After a
hearing, the magistrate judge recommended that this court
deny the Welch's motion to suppress. Filing No.
203. Welch objected to the Magistrate Judge's
findings. Filing No. 220. After de novo review, this
court denied Welch's objection and denied the motion to
suppress. Filing No. 241.
proceeded to trial and the jury returned verdicts of guilty
as to each count of the Indictment. Filing No. 327.
Welch was sentenced to two concurrent ten-year terms of
imprisonment. Filing No. 397.
appeal, Welch argued that his notice of the NIT warrant was
insufficient under Federal Rule of Criminal Procedure 41. The
Eighth Circuit Court of Appeals (“Eighth
Circuit”) affirmed Welch's conviction.
Welch, 811 F.3d at 280-81. Assuming without deciding
that Rule 41 applied to the NIT warrant, the Eighth Circuit
agreed that the notice given to Welch did not comply with the
Rule, but found that such a procedural violation is not
per se an unreasonable search in violation of the
Fourth Amendment. Id. at 280. In order to show a
Fourth Amendment violation, the Eighth Circuit stated that
Welch must show either prejudice or reckless disregard of
proper procedure. Id. at 280-81. The Court of
Appeals found Welch had not made that showing and accordingly
found the delayed notice of the NIT warrant did not violate
the Fourth Amendment and did not require suppression of
evidence. Id. at 281.
raises three grounds for relief in his § 2255 motion.
First, he claims venue was improper in the District of
Nebraska. Second, he asserts that the NIT warrant issued by a
Magistrate Judge in the District of Nebraska was void ab
initio because the Magistrate Judge lacked jurisdiction
to issue the warrant. Third, Welch claims that his
prosecution and sentence are illegal because the Magistrate
Judge was without authority to issue the NIT warrant. He also
argues that the violations are of constitutional magnitude
and alleges his counsel was ineffective in failing to raise
any of those grounds in his appeal.
response, the government argues that Welch's claims are
procedurally barred because he did not raise them in district
court or on appeal. It also argues that Welch's claim of
ineffectiveness of counsel on the venue issue fails because
the facts developed at trial clearly establish that venue in
Nebraska was proper. The government denies that the NIT
warrant was void ab initio and contends the
Magistrate Judge had authority to issue the warrant. It also
argues that the warrant satisfies the Fourth Amendment and
contends any violation of Federal Rule of Criminal Procedure
41 is not of constitutional magnitude. Last, the
government argues that if there is any constitutional
violation, the good faith exception found in United
States v. Leon, 468 U.S. 897, 906 (1984), would apply.
The government also contends that Welch is not entitled to a
hearing on his § 2255 motion.
U.S.C. § 2255
federal prisoner who seeks relief from a conviction and
sentence under § 2255 must establish a violation that
constitutes “‘a fundamental defect which
inherently results in a complete miscarriage of
justice.'” United States v. Gomez, 326
F.3d 971, 974 (8th Cir. 2003) (quoting United States v.
Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)). Section
2255 is intended to provide federal prisoners a remedy for
jurisdictional or constitutional errors. Sun Bear v.
United States, 644 F.3d 700, 704 (8th Cir. 2011). It is
not intended to be a substitute for appeal or a vehicle for
relitigating matters decided on appeal. See
Bousley v. United States, 523 U.S. 614, 621 (1998);
Davis v. United States, 417 U.S. 333, 346-47 (1974).
not raised on direct appeal are procedurally defaulted and
may not be raised under § 2255 unless a petitioner can
demonstrate (1) cause for the default and actual prejudice or
(2) actual innocence. United States v. Moss, 252
F.3d 993, 1000 (8th Cir. 2001). To establish
“cause” for a default, “the prisoner must
‘show that some objective factor external to the
defense impeded counsel's efforts to comply with [a]
procedural rule.'” Davila v. Davis, 137
S.Ct. 2058, 2065 (2017) (quoting Murray v. Carrier,
477 U.S. 478, 488 (1986)). A factor is external to the
defense if it cannot fairly be attributed to the prisoner.
Id. One such factor is attorney error. Id.
(stating “[i]t has long been the rule that attorney
error is an objective external factor providing cause for
excusing a procedural default only if that error amounted to
a deprivation of the constitutional right to
counsel.”). An error amounting to constitutionally
ineffective assistance is “imputed to the State”
and is therefore external to the prisoner. Id.
may dismiss a claim without an evidentiary hearing “if
the claim is inadequate on its face or if the record
affirmatively refutes the factual assertions upon which it is