United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on defendant's motion to
vacate under 28 U.S.C. § 2255. Filing No. 594 in
8:13CR107 and Filing No. 93 in 8:15CR44. The court initially
reviewed this case and ordered the government to file an
answer addressing defendant's ineffective counsel claims.
Filing No. 607 in 8:13CR107 and Filing No. 95 in 8:15CR44.
The government filed its answer. Filing No. 611 in 8:13CR107
and Filing No. 98 in 8:15CR44.
a trial, the jury convicted defendant for the receipt of
child pornography and access with intent to view child
pornography. Filing No. 511 in 8:13CR107, Judgment and
Filing No. 64 in 8:15CR44, Judgment. The court sentenced the
defendant to concurrent terms of imprisonment of 36 months
and 72 months on the conviction in 8:13CR107, to run
concurrent with the 36-month term sentence in the 8:15CR44
conviction. Id. The Eighth Circuit Court of
Appeals affirmed his conviction and sentence. Filing No. 589
in 8:13CR107 and Filing No. 91 in 8:15CR44.
case arises from the Federal Bureau of Investigation's
(“FBI's”) sting operation consisting of a
website hosted in Nebraska. The websites' users operated
anonymously on the Tor network. Throughout the investigation,
the FBI utilized a court-authorized Network Investigative
Technique (NIT) to identify the anonymous users, such as
Huyck, on Tor.
Indictment in 8:13CR107 identified the defendants as
“John Does” using specific Internet Protocol
(“IP”) address at an exact date and time to
access Pedoboard. Huyck plead not guilty to all counts of the
Indictment in 8:13CR107.
filed motions to suppress evidence from the FBI controlled
websites and challenged the residential warrant as stale. The
district court denied the motions and overruled the objection
to the warrant. Huyck also requested in his motions in
limine, the exclusion of trial exhibits which consisted of
notes, text documents, and Internet bookmarks found on
devices seized from his residence. Prior to his filings, the
defendant waived his right to a continuance for case
8:15CV44. The two cases against Huyck, 8:13CR107 and
8:15CR44, were consolidated and were ready to proceed to
trial on March 2, 2015.
jury trial commenced on March 2, 2015. Among the
government's witnesses was an expert witness who works as
a forensic computer analyst. The witness testified to the
contents of the digital devices found in Huyck's
residence. The defendant's attorney cross examined that
witness. The defendant also called his own expert witness to
testify about the evidence. The government was given the
opportunity to cross examine this witness. Prior to
submitting the case to the jury, the district court granted
Huyck's motion for a judgment of acquittal on Count III
of 8:15CR44. The acquitted charge pertained to a single image
of child pornography found on one of the defendant's
devices. The jury found Huyck guilty on Counts I and II of
the Second Superseding Indictment in 8:13CR107 and Counts I
and II of the Indictment in 8:15CR44. The court did not
accept the jury's verdict on Count I of the Indictment in
8:15CR44, finding the charge inconsistent with the jury's
guilty verdict on Count II.
Defendant's §2255 Motion
§ 2255 motion, the defendant alleges he was denied
effective assistance of counsel because his attorney: 1)
failed to investigate exculpatory evidence and witnesses; 2)
failed to allow Huyck to participate in his own defense and
to testify on his own behalf; and 3) failed to advise Huyck
of, or exercising, his right to a continuance when
arraignment on new charges was less than two weeks before
trial began. He also contends that the accumulation of errors
in the case violated his right to due process.
assistance of counsel issues are appropriately raised in
collateral proceedings. United States v. Hughes, 330
F.3d 1068, 1069 (8th Cir. 2003). “The right to counsel
is a fundamental right of criminal defendants; it assures the
fairness, and thus the legitimacy, of our adversary
process.” Kimmelman v. Morrison, 477 U.S. 365,
374 (1986). The right to counsel includes the right to
reasonably effective counsel. Strickland v.
Washington, 466 U.S. 668, 694 (1984). The defendant must
show that there is a reasonable probability that the result
of his proceedings would have been different if his lawyer
had competently performed. King v. United States,
595 F.3d 844, 852 (8th Cir. 2010). To establish prejudice
under Strickland, a petitioner must
“demonstrate that there is a reasonable probability
that, but for counsel's claimed unprofessional errors,
the result of the proceeding would have been
different.” Christenson v. Ault, 598 F.3d 990,
996 (8th Cir. 2010). Prejudice in a claim of failure to
investigate exists when a defendant shows what evidence would
have been revealed by diligent investigation and that further
evidence would have made a different outcome to the trial a
reasonable probability. Palmer v. Clarke, 408 F.3d
423, 445 (8th Cir. 2005). “Strategic choices made after
thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.” United
States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006).
court recognizes a “strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance.” Id.
(citations omitted). A criminal defendant has the right to
testify on his own behalf and this right can only be waived
by the defendant himself. Foster v. Delo, 11 F.3d
1451 (8th Cir. 1993). In order to prove prejudice to satisfy
Strickland, the defendant must prove that ...