Carroll v. USA CV-98-050-JD 06/16/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher Carroll

v. Civil No. 98-050-JD

United States of America

O R D E R

The petitioner was convicted of one count of producing child

pornography (

(a)) following a trial by jury. He

appealed his conviction and the conviction was affirmed. United

States v. Carroll,

(1st Cir. 1997), cert, denied,

U.S. ___, 117 S. C t . 187 (1997). He was represented at trial

and on appeal by the same federal defender. On January 30, 1998,

the petitioner filed a petition pursuant to

. A

hearing was held on June 8, 1998, limited to the issue of

effective assistance of counsel on appeal. The background of

this case is adeguately set forth in the Carroll opinion, supra,

and need not be repeated here.

The petitioner for the most part seeks to retry the case in

a collateral proceeding and to raise issues which could have been

raised on direct appeal, with the exception of the ineffective

assistance of counsel claim. Therefore, the court will first

address this claim. The petitioner contends that counsel was ineffective at

trial. An issue has also arisen concerning counsel's

effectiveness on appeal, since the other issues raised by the

petitioner could have been raised on direct appeal.

The case of Strickland v. Washington,

(1984),

established the standard for assessing an effective assistance

claim. "First, the defendant must show that counsel's

performance was deficient . . . . Second, the defendant must

show that the deficient performance prejudiced the defense." Id.

at 2064. "The burden is on the petitioner to demonstrate

ineffective assistance by a preponderance of the evidence. See

Mvatt v. United States,

(1st Cir. 1989); United

States v. DiCarlo,

(1st Cir.), cert, denied,

, 99 S. C t . 115,

(1978)." Lema v.

United States,

(1st Cir. 1993).

Trial counsel in this matter was an experienced criminal

trial and appellate lawyer who prosecuted the petitioner's

defense vigorously. Petitioner complains that trial counsel

failed to move to suppress a certain alleged tape recording of a

telephone conversation between Officer Calzada and himself,

failed to investigate the case properly in order to refute the

prosecution's theory of when the pictures were taken, failed to

prepare a key defense witness (Mr. Alkahafagi), failed to

2 determine if the petitioner had access to the Internet at the

time the pictures were taken, and failed to object to certain

prosecution arguments concerning petitioner's access to the

Internet. In support of these contentions the petitioner has

submitted the affidavits of a friend and two family members along

with his own affidavit.

The tape recording in guestion was not illegal and therefore

trial counsel had no obligation to seek its suppression. See

(2)(d). Officer Calzada consented to the taping.

In addition, as trial counsel pointed out at the June 8, 1998,

hearing, a strategic decision was made to allow the tape into

evidence so that the petitioner's story could be told to the jury

in the event he did not testify.

The petitioner contends that defense counsel failed to

challenge misleading testimony and argument presented by the

prosecutor to the jury to the effect that the petitioner intended

to use the photographs on the Internet and had access to the

Internet. The victim, who will be referred to as Brittany,

testified that the petitioner told her he intended to scan the

photographs into a friend's computer and disburse them on the

Internet. Brittany's testimony, along with the testimony of

William Douglas Allen, provided ample justification for the

prosecutor to argue as he did. Furthermore, Allen's affidavit

3 submitted in support of the petition does nothing to help the

petitioner since Allen claims he did not have an Internet account

until April of 1996 and yet an attached letter from his Internet

provider indicates that his account was set up on April 21, 1995.

This discrepancy calls into serious question the credibility of

Allen's affidavit and creates the appearance that he is engaging

in an after-the-fact attempt to manipulate his testimony for the

petitioner's advantage. It is also worth noting that while the

petitioner states in his affidavit that neither Allen nor he had

Internet access on January 8, 1995, he readily admits that "on­

line" picture trading had occurred prior to Allen's canceling his

America-on-Line account in January of 1994. Allen, during his

trial testimony, described the process of scanning pictures for

on-line distribution. Regardless of whether or not the

petitioner or Allen had access to the Internet on January 8,

1995, one of the material issues in this case was the

petitioner's intent, as he stated it to Brittany, to take the

pictures to another state to be developed and to put them on the

Internet. There was a sufficient and proper evidentiary basis

for the prosecutor's argument to the jury concerning the

petitioner's intent. In addition, the petitioner cannot complain

that trial counsel did not adequately investigate the Internet

access issue because this was a matter which clearly was within

4 the knowledge of the petitioner and could have been communicated

by him to counsel before and during trial. Trial counsel

consulted regularly with the petitioner during the trial so he

had every opportunity to raise this issue with her if he thought

it was important. In the court's opinion, the petitioner is

attempting to create an issue after the fact.

A review of the testimony of the alibi witness, Mr.

Alkahafagi, demonstrates that he made every effort on direct

examination to accommodate his testimony to the petitioner's

theory and to obfuscate matters when he was cross-examined, a

fact that did not escape the court's attention during the trial.

In the court's opinion, this witness dissembled during his

testimony. As to the conclusory allegations that trial counsel

did not investigate the case properly, the affidavits offered in

support of these allegations fail to provide any support for

them. The issue of when the photographs were taken was

thoroughly pursued and litigated by trial counsel. In addition,

the affidavits contain no information which if presented to the

jury would have resulted in a different verdict in this case.

After reviewing the petitioner's allegations of ineffective

assistance of trial counsel, the court finds that trial counsel's

competence was within the range of competence reguired of counsel

in criminal cases and that her performance did not fall below the

5 standard of performance of reasonably proficient counsel.

Indeed, trial counsel provided the petitioner with effective

representation in the face of compelling evidence, both direct

and circumstantial, produced by the government in support of the

charge.

In determining whether appellate counsel (who was also trial

counsel) was ineffective on appeal, the court will also apply the

Strickland standard. Appellate counsel is not under an

obligation to appeal any issue that an indigent defendant wants

to have appealed, whether the issue is frivolous or nonfrivolous.

The United States Supreme Court in Jones v. Barnes discussed the

authority of an indigent defendant and appointed counsel.

It is also recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal, see Wainwriqht v. Svkes,

, 93 n. 1,

, 2509 n. 1,

(1977) (BURGER, C.J., concurring); ABA Standard for Criminal Justice 4-5.2, 21-2.2 (2d ed. 1980) . . . . Neither Anders [v. California, 386, U.S. 738 (1967)] nor any other decision of this Court suggests, however, that the indigent defendant has a constitutional right to compel appointed counsel to press nonfrivolous points reguested by the client, if counsel, as a matter of professional judgment, decides not to present those points.

(1983).

Appellate counsel reviewed both the trial transcript and her

own detailed trial notes to determine if there were any issues

6 that merited appeal. She then spoke to the petitioner about the

issues that might be raised on appeal. She determined that most

of her objections during trial were sustained but that one

serious objection concerning jury instructions was overruled.

After speaking with the petitioner she decided to appeal two

issues: (1) jury instructions and; (2) the sufficiency of the

evidence. She sent the petitioner copies of the notice of

appeal, the statement of issues on appeal, the appellate brief,

the government's reply brief, along with various correspondence.

Since the issues were straightforward and the petitioner was

anxious for appellate review, she waived oral argument based on

her understanding that review would take place more

expeditiously. After the petitioner received the statement of

issues on appeal, he called counsel to discuss the issue of the

taped phone conversation. She reviewed the trial strategy on

that issue and explained that because the tape came into evidence

without objection, she could not appeal that issue.

The court finds that appellate counsel undertook a careful

review of the trial record to select meritorious issues for

appeal and engaged in appropriate consultation with the

petitioner concerning his appeal. She exercised her professional

judgment in an appropriately critical manner to select the issues

for appeal, and the fact that she did not pursue all the issues

7 petitioner may have wanted her to pursue on appeal did not deny

him the effective assistance of counsel on appeal. The court

finds that appellate counsel's competence was within the range of

competence required of appellate counsel in criminal cases and

that her performance did not fall below the standard of

performance of reasonably proficient appellate counsel. The mere

fact that she did not succeed on appeal does not detract from the

vigor and competence with which she represented the petitioner.

Based on the court's ruling that the petitioner was

effectively represented by trial and appellate counsel, the court

finds that the other issues raised by the petitioner in his

petition are issues that could have been raised on appeal but

were not because in the professional judgment of appellate

counsel they should not have been appealed. Therefore, since

those issues are not of the type that can be presented for review

in the context of a § 2255 petition, the court need not consider

them. United States v. Fradv,

(1982); United States

v. Addonizio,

(1979).

Petition dismissed.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

June 16, 1998 cc: James M. Winston, Esquire Alison Kubiak, Esquire Peter E. Papps, Esquire