United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge
matter is before the Court on Christopher D. Brackett's
(“Brackett”) pro seMotion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (Filing No. 151). The Court has reviewed
Brackett's motion, the parties' submissions, and the
balance of the record in this case and concludes the motion
should be denied. Because the record conclusively
demonstrates Brackett is not entitled to relief, no
evidentiary hearing is necessary. See 28 U.S.C.
§ 2255(b); Noe v. United States, 601 F.3d 784,
792 (8th Cir. 2010).
2013, Brackett, then a thirty-six-year-old registered sex
offender from Nebraska, began communicating with
R.H., a sixteen-year-old girl from Ohio, while playing an
online video game. Brackett and R.H. eventually exchanged
phone numbers and began texting and calling each other.
Brackett told R.H. about himself, where he lived, that he had
younger brother named Clint, and that he owned a Jeep.
2013, Brackett drove his Jeep to Ohio to meet R.H. in person.
He picked her up at her parents' house and took her to a
local hotel where he persuaded her to have sex with him.
Brackett took four or five nude photographs of R.H. with his
cell phone. In July, R.H. tried to end the relationship but
relented when Brackett became angry and threatened to tell
her parents and send them the photographs.
returned to Ohio to visit R.H. in August 2013. They had sex
again, and Brackett took more nude photographs at the hotel.
R.H. also texted approximately forty nude images of herself
to Brackett. Brackett told her he transferred the images from
his phone to a flash drive.
that month, R.H. again attempted to end her relationship with
Brackett. He threatened to make trouble for R.H.'s
parents and grandfather and told R.H. he would send the
photographs to her parents and post them at her high school.
Brackett also posted advertisements on Craigslist in Ohio
where R.H. lived, providing her personal information and
indicating she was available for sex. R.H. received numerous
calls and texts responding to the advertisements.
told her parents about Brackett, and they called the police.
R.H. described Brackett and his vehicle and told them about
the photographs. Investigator Michael Gunias
(“Investigator Gunias”) of the Cuyahoga County,
Ohio, prosecutor's office showed R.H. a photograph of
Brackett from the Nebraska Sex Offender Registry. She
positively identified him as the man who took nude
photographs of her and had sex with her. R.H. also gave
officers her phone and authorized them to use her Facebook
account. As the investigation moved forward, Brackett texted
R.H. forty to fifty times.
September 17, 2013, Investigator Gunias relayed the
information R.H. had given about Brackett to Detective Roy
Howell (“Detective Howell”) of the Bellevue,
Nebraska, Police Department. Detective Howell, a member of
the Cyber Crimes Task Force, immediately began investigating
Brackett and his background. Detective Howell was able to
corroborate some of the information R.H. provided to the
police, including that Brackett had a Jeep and a brother
named Clint. Detective Howell also learned that another woman
once reported that Brackett had posted false Craigslist
advertisements like those R.H. described.
that day, Detective Howell obtained a warrant to search
Brackett's residence and vehicles for digital media that
could contain images of child pornography. The warrant
application included a seven-page affidavit (1) describing
Detective Howell's training and experience in
child-pornography investigations; (2) setting forth
R.H.'s allegations; and (3) summarizing the ongoing
investigation. Officers executed the warrant that evening,
seizing a smart phone, a laptop computer, and a desktop
computer. The phone had been “wiped” and returned
to factory settings, but the computers both contained
sexually explicit images of R.H. A second phone-seized from
Brackett when he was arrested-included additional explicit
images of R.H. as well as the text messages between them.
February 19, 2014, a federal grand jury returned a
superseding indictment charging Brackett with transporting,
producing, and possessing child pornography after having been
convicted of an offense involving the sexual abuse of a
minor. See 18 U.S.C. §§ 2252A(a), 2251(a),
and 2252(a)(4)(B). Brackett moved to suppress the evidence
seized from his residence, arguing the affidavit was
insufficient to establish probable cause. The motion was
trial, Brackett asked the Court to reconsider its ruling on
the motion to suppress and twice moved for a hearing pursuant
to Franks v. Delaware, 438 U.S. 154 (1978). Brackett
alleged the evidence presented at trial showed Detective
Howell's affidavit omitted material facts and contained
materially false statements. The Court denied the motions,
concluding Brackett had “failed to prove recklessness
or deliberate falsehood.”
January 23, 2015, a jury found Brackett guilty of all three
counts. The Court sentenced him to 360 months in prison and
240 months of supervised release. On appeal, the Eighth
Circuit affirmed the denials of Brackett's motion to
suppress and his requests for a Franks hearing.
See United States v. Brackett, 846 F.3d 987, 989
(8th Cir. 2017).
24, 2018, Brackett timely moved pursuant to 28 U.S.C. §
2255 to vacate, set aside, or correct his sentence. According
to Brackett, his retained legal counsel was
unconstitutionally ineffective for failing to (1) “prepare
or investigate”; (2) “show that false statements
were included in the search warrant affidavit”; (3)
“investigate and present mitigation evidence of [his]
background and mental health”; (4) “discuss or
present possible defenses”; and (5) “request
additional time to examine and review Jencks
material.” Brackett ...