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Manning v. United States

United States District Court, E.D. Missouri, Eastern Division

April 20, 2017

MICHAEL MANNING, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon the motion of Michael Manning to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The United States has filed a response, and the issues are fully briefed.

         I. Background

         On September 7, 2012, a jury found Manning guilty of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) (Count I), and possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count II).[1] He was sentenced to a 240-month term of imprisonment on Count I and a consecutive 120-month term of imprisonment on Count II. The judgment was affirmed on appeal. United States v. Manning, 738 F.3d 937 (8th Cir.), cert. denied, 135 S.Ct. 149 (2014).

         The evidence the government presented at trial showed that law enforcement officers, using a peer-to-peer file-sharing program, downloaded images of child pornography from an Internet Protocol (IP) address connected to an account belonging to Manning. During the execution of a search warrant at Manning's home, officers seized a laptop computer and compact discs that contained 1, 029 images and 49 videos of child pornography. Through forensic analysis of Manning's laptop the officers found several online chats that were enabled by downloading applications called Gigatribe and Yahoo Messenger. These chats were between an individual believed to be Manning and other individuals and concerned trading and collecting child pornography.

         II. Discussion

         In the instant motion to vacate, Manning asserts that he was denied effective assistance of counsel at trial and on appeal. To prevail on an ineffective assistance claim, a movant must show that his attorney's performance fell below an objective standard of reasonableness and that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 688 (1984). With respect to the first Strickland prong, there exists a strong presumption that counsel's conduct falls within the wide range of professionally reasonable assistance. Id. at 689. In Strickland, the Court described the standard for determining an ineffective assistance claim:

[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Strickland, 466 U.S. at 690.

         To establish the “prejudice” prong, the movant must show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. The failure to show prejudice is dispositive, and a court need not address the reasonableness of counsel's performance in the absence of prejudice. United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).

         Ground One

         Manning first asserts that he was denied effective assistance of counsel as a result of his attorney's failure to present expert testimony at trial to rebut the government's evidence. Manning acknowledges that defense counsel retained an expert. Mot. to Vacate, Attach. C [Doc. # 1-1]. However, defense counsel ultimately “determined that said expert witness's testimony would not be beneficial in trial.” Schwartz Affid. ¶ 7 [Doc. # 7-1].

         According to Manning, the expert witness “was the only person who could provide the Facebook chat logs.” Reply at p. 2 [Doc. # 11]. Copies of the logs are attached to Manning's reply, and they purport to show conversations between Manning and his relatives and friends. [Doc. # 11-1]. These logs, Manning contends, would have presented “a very different portrait of me . . . to the jury” and would have “directly attacked the Yahoo! and Gigatribe chats the government presented.” Reply at p. 2 [Doc. # 11]. To be sure, the innocent conversations reflected in the Facebook chat logs contrast sharply with Manning's Gigatribe and Yahoo Messenger chats in which he discussed collecting and trading images of child pornography. However, the purpose of an expert witness is to “assist the trier of fact to understand the evidence or to determine a fact in issue” -not to paint a “portrait” of the defendant. Fed. R. Evid. 702(a). Additionally, while it is arguable whether the Facebook chats constitute evidence that would have been admitted at trial, it is clear that their admissibility would not have depended on the testimony of an expert witness. Finally, Manning does not explain in what way an expert witness could have challenged the government's evidence of his communications with other individuals involved in trafficking in child pornography.

         Even if Manning could show that his attorney's decision not to present expert testimony fell below an objective standard of reasonableness, he has not demonstrated that he was prejudiced. Given the strength of the government's case, Manning has not shown that there is a reasonable probability that the ...


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