MEMORANDUM OPINION AND ORDER
Petitioner Lonnie Joseph Parker ("Parker") was indicted in a five count indictment on November 9, 1998, charging him in Count 1 with receiving six computer images of child pornography in violation of 18 U.S.C. § 2252(a)(2) on or about September 28, 1997; Count 2 receiving twelve computer images of child pornography in violation of 18 U.S.C. § 2252(a)(2) on or about December 13, 1997; Count 3, receiving three computer images of child pornography in violation of 18 U.S.C. § 2252(a)(2) on or about December 20, 1997; Count 4, possession of three or more (twelve) images of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) on or about January 27, 1998 on his computer and disks; and Count 5, forfeiture of the computer under 18 U.S.C. § 2253. He was tried before a twelve person jury on May 22 through 25, 2000. The jury acquitted him of Count 1, were unable to reach a verdict on Counts 2 and 3, and convicted him on Count 4. The Court declared a mistrial on Counts 2 and 3.
Parker filed a motion for judgment of acquittal which was denied on June 12, 2000. The government's motion to dismiss Counts 2 and 3 was granted on June 19, 2000.
Parker was sentenced to 37 months' imprisonment with three years of supervised release. The judgment and commitment was entered on September 18, 2000 and Parker surrendered to the institution on November 13, 2000.
Parker filed a notice of appeal on September 19, 2000. The government filed a notice of cross-appeal on September 22, 2000. Parker also filed a motion for new trial based on a Brady violation on November 8, 2000, which the Court denied on November 30, 2000. That order was appealed on December 7, 2000.
The three appeals were consolidated and were submitted to the Eighth Circuit Court of Appeals on May 15, 2001. On October 9, 2001, the Eighth Circuit affirmed the conviction and reversed and remanded the case for resentencing. United States v. Parker, 267 F. 3d 839 (8th Cir. 2001). Parker's petition for rehearing was denied on November 29, 2991.
On January 18, 2002, Parker was resentenced to 57 months' imprisonment followed by three years' supervised release.
The Supreme Court denied Parker's petition for writ of certiorari on April 15, 2002. Parker v. United States, 122 S.Ct. 1592 (2002). The parties stipulated to forfeiture of the computer and a final order of forfeiture was entered on October 17, 2000.
The following is a recitation of the facts by the Eighth Circuit in Parker, 367 F.3d at 842 -43*fn1 .
In 1997, Parker relocated from Minnesota to Little Rock, Arkansas, to begin his medical residency at the University of Arkansas. Soon after his move, United States Customs officials began investigating Parker as a recipient of images containing child pornography. Customs officials were alerted to Parker's involvement with child pornography through their investigation of an individual named Freddie Gravely who resided in Michigan. Gravely had sent six pornographic images to an America Online subscriber who was using the screen name "FUNWUN777." The subscriber was Parker.
Parker agreed to cooperate with Customs agents, and during a subsequent interview, Parker informed the agents that his daughter had received the images while visiting an Internet chat room, and that he had reported the incident to the FBI and the National Center for Missing and Exploited Children (NCMEC). The Customs agents were unable to substantiate Parker's assertion that he had contacted either agency. Parker also told the agents that he was told to download and print out the images and send them to both agencies. Parker did not send copies of the images to either agency. Parker offered to provide Customs agents with the name of the FBI agent who instructed him to download the pornographic images, but Parker never followed through with his offer. Parker invited the Customs agents to his home and executed a consent form, authorizing their search of his home for child pornography. At the agents' request, Parker copied the pornographic images stored on his computer's hard drive onto computer diskettes. The extent of Parker's collection was voluminous. Agents seized the disks and Parker's computer. The next day, Parker requested to meet again with Customs agents. Parker explained to the agents that contrary to what he had reported earlier, he-and not his daughter-had received the child pornography. He stated that he had printed out the images that he received and sent them to the FBI and the NCMEC. Parker stated that he voluntarily continued to receive pornographic images in an attempt to compile a list of suspect pornographers to assist law enforcement officials. When asked by Customs agents for his list of suspects, however, he was unable to provide it. Parker also informed the Customs agents of a previous episode that occurred while he was a fourth-year medical student at the Mayo Clinic, in Rochester, Minnesota, when he received a message from an individual in an Internet chat room. This individual offered to allow Parker to have sex with the man's adolescent daughter, as well as providing pictures of the interlude in exchange for a fee. Parker was told to meet the girl at a Minneapolis-area motel. Parker reported this solicitation to the FBI. FBI agents investigated Parker's complaint and initiated a surveillance operation at the motel; however, neither the individual nor his daughter ever materialized at the motel. Parker was charged in a five count indictment: three counts of receiving child pornography, one count of possessing child pornography, and one count of criminal forfeiture. Parker filed a motion indicating that he intended to assert a public authority defense because, he contended, he was assisting law enforcement officials in their attempt to identify and apprehend persons sending him pornographic material to his Internet account. At trial, however, Parker presented no evidence on his own behalf. Thus at the close of the trial, the district court refused to instruct the jury on Parker's reliance upon public authority, concluding the trial record contained insufficient evidence to warrant such an instruction.
Parker raises a number of claims, most of them based on ineffective assistance of counsel. Before proceeding to a discussion of those claims, the Court will address Parker's argument regarding the appropriate standard for reviewing an ineffective assistance claim.
In an ineffective assistance of counsel claim, Parker must demonstrate "that counsel's performance was deficient and that [he] was prejudiced by the deficient performance to such an extent that there is a reasonable probability that the outcome of the trial would have been different absent counsel's error." Bucklew v. Luebbers, 436 F. 3d 1010, 1016 (8th Cir. 2006). Parker must establish both prongs; if defendant has suffered no prejudice the Court does not have to analyze the performance prong. Boysiewick v. Schriro, 179 F.3d 616, 620 (8th Cir. 1999). "Judicial scrutiny of counsel's performance is highly deferential, indulging a strong presumption that counsel's conduct falls within the wide range of reasonable professional judgment." Id (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)). Parker has the burden to "overcome the strong presumption that counsel's actions constituted objectively reasonable strategy under the circumstances." Becht v. United States, 403 F.3d 541, 545 (8th Cir. 2005) (citation and internal quotation marks omitted). The Court will not "'second-guess trial strategy or rely on the benefit of hindsight, and the attorney's conduct must fall below an objective standard of reasonableness to be ineffective." Williams v. United States, 452 F. 3d 1009, 1013 (8th Cir. 2006) (citations omtited).
To prove prejudice, Parker must establish that "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Parker argues that the Court should consider the cumulative effect of trial counsel's errors in determining whether there was prejudice. Just recently the Eighth Circuit rejected a similar argument, finding that it contradicts Eighth Circuit precedent. Middleton v. Roper, 455 F.3d 838, 851 (8th Cir. 2006). See Hall v. Luebbers, 296 F. 3d 685, 692 (8th Cir. 2002) ("In our circuit, a habeas petitioner cannot build a showing of prejudice on a series of errors, none of which would by itself meet the prejudice test.") Thus, Parker must establish both deficient conduct and prejudice with respect to each of his claims of ineffective assistance of counsel in order to be entitled to relief.
Parker's Motion for an Evidentiary Hearing
Parker moves the Court for a hearing on his request for post-conviction relief. Under 28 U.S.C. § 2255, the Court shall grant a prompt hearing on the motion unless the motion and files and record conclusively show that the petitioner is entitled to no relief. A petition, however, "can be dismissed without a hearing it (1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Engelen v. United States, 68 F. 3d 238, 240 (8th Cir. 1995).
The Court has reviewed the petition, the additional submissions of the parties as well as the record in this case and as will be set out below, the Court is not persuaded that a hearing is necessary.
I. Ineffective Assistance of Counsel
Under a broad ineffective assistance of counsel claim, Parker asserts that counsel was ineffective for not putting on any defense or calling witnesses who were present and prepared to testify, or for not cross-examining witnesses effectively, or not preparing a defense and that deprived him of a jury instruction on the defenses of public authority or entrapment by estoppel. This claim has a number of subclaims which will be discussed below.
Before discussing the subclaims, Parker discusses generally his defense of public authority and how counsel's performance hindered Parker's ability to present the defense of public authority or entrapment by estoppel.*fn2 "Public authority" is an "affirmative defense where the defendant seeks exoneration based on the fact that he reasonably relied on the authority of a government official to engage him in covert activity." United States v. Achter, 52 F. 3d 753, 755 (8th Cir. 1995). "Entrapment by estoppel" applies when an official assures a defendant that certain conduct is legal and the defendant reasonably relies on that advice and continues or initiates that conduct."
Id. (citation omitted). Parker notes that counsel's failure to produce anything of substance deprived Parker of getting a jury instruction on the defense. As will be discussed below, the Court is not persuaded that counsel's performance was ineffective and that the failure of the Court to give a jury instruction on the defenses of public authority or entrapment by estoppel did not prejudice Parker.
Parker's retained counsel vigorously pursued defending Parker. Counsel filed a number of pre-trial motions, and he aggressively cross-examined the government's witnesses. Counsel videotaped Parker and his wife in preparation for their anticipated testimony. That the jury acquitted Parker on Count 1 and were unable to reach a verdict on Counts 2 and 3 lend support to the government's position that Parker cannot show that he was prejudiced by counsel's behavior. See Pryor v. Norris, 103 F. 3d 710, 714 (8th Cir. 1997) (counsel's strategy may have worked where defendant received sentences substantially less than he could have received).
A. Defense counsel was constitutionally ineffective for failing to put on a defense or calling witnesses that deprived him of his only defense.
Parker contends that he had a host of witnesses to testify and exhibits to offer on his behalf, and that defense counsel, on his own, decided that the defense would rest without calling any witnesses. Parker contends that the failure to call witnesses, including Parker, on his behalf was prejudicial. Parker makes several offers of poof to support his contention.
Parker's assertion that counsel unilaterally decided to not call witnesses is somewhat belied by Parker's own petition. According to Colleen Parker, she learned by a telephone call by defense counsel the night before the government rested that she might not be called to testify. Additionally, at the time the government rested, counsel stated that he wanted a recess to talk to some witnesses subpoenaed by the government to see if he would call them.*fn3 After the recess, counsel announced that the defense rested as well. Defendant sat silent.
The inference from the above is that Parker concurred with counsel's decision not to call any witnesses. In support of this inference, the government has submitted the affidavit of William C. Muse, a retired special agent for ATF, who was a friend of Parker. Muse states in the affidavit that he came to Little Rock to testify at the request of the government. While at the courthouse, Muse states that he saw Parker in the hallway who told Muse that he would not call Muse to testify because he was not putting on any witnesses.
The Court notes that the affidavit itself is not conclusive. Nevertheless, the Court is persuaded that the evidence supports the conclusion that counsel did not unilaterally decide not to call witnesses.
Even assuming counsel was ineffective in failing to call witnesses, as discussed below Parker cannot establish that the failure prejudiced him.
(a) Lonnie Joseph Parker:
Parker claims that had he testified he would have explained to the jury how the child pornography came to be on his computer,*fn4 what he tried to do to interest law enforcement in it, and the circumstances surrounding the e-mail about the 13 year old female and her father wanting to videotape her having sex. Parker further contends that he would have provided information to the jury of his prior law enforcement experience.
The government contends that the proffered testimony would not have affected the outcome of the trial. The government points to the inconsistencies in Parker's proposed testimony. Parker initially told agents that his daughter had inadvertently received the pornographic images while in a chat room. He later admitted that he was the one who received the images. Additionally, Parker's ex-wife, Colleen, stated that Parker received the images in 1997, while Parker claims that he initially received the first images of child pornography in 1996.
Other inconsistencies in Parker's proffered testimony undercut his credibility. Parker contends that he contacted the National Center for Missing and Exploited Children (NCMEC) on several occasions to report that he had received images. He gave conflicting reports regarding whether he was told to mail the images to NCMEC.
Testimony concerning Parker's defense was introduced through the government's witnesses. Thus, the jury was told about Parker's assertions of contact with the FBI and NCMEC and his contention that he was assisting law enforcement.
Even assuming that Parker established that he contacted law enforcement to assist, he cannot refute that he failed to provide the information to the FBI as requested. That is, he continued to possess the child pornography even after being told to bring it in to the FBI. His allegations of being too busy ring hollow in light of the fact that he basically passed by the Little Rock FBI office regularly on his way to work. His allegations concerning the difficulty in sorting and downloading the images also ring hollow in light of the evidence of the time it took to download the information to the diskettes and in light of his ex-wife's testimony at sentencing that she told Parker to put images into a separate file on the computer, that Parker kept the images in a separate file, and that Parker printed images to send to the NCEMC.
Thus, Parker cannot establish that he was prejudiced by not being allowed to testify at his trial.
Parker also states that his ex-wife, Colleen Parker, was present and ready to testify. She could, according to Parker, corroborate Parker's calls to law enforcement. At the sentencing hearing she testifed about Parker's shock at seeing the child pronography on his computer and knew of calls to law enforcement.
Colleen Parker stated that she wanted to testify, and that defense counsel even videotaped her and Parker to prepare them as witnesses. She claims that she found out that they might not be testifying until the night before the government ...