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United States v. Brackett

United States District Court, D. Nebraska

September 7, 2018



          Robert F. Rossiter, Jr. United States District Judge

         This matter is before the Court on Christopher D. Brackett's (“Brackett”) pro se[1]Motion 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).

         I. BACKGROUND

         In May 2013, Brackett, then a thirty-six-year-old registered sex offender[2] 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.

         In June 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.

         Brackett 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.

         Later 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.

         R.H. 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.

         On 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.

         Later 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.

         On 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 denied.

         At 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.”

         On 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).

         On May 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[3] 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.”[4] Brackett ...

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