United States District Court, M.D. Pennsylvania
WILLIAM W. CALDWELL, District Judge.
Defendant, Blaine R. Handerhan, has filed a pro se motion under 28 U.S.C. § 2255 to vacate his conviction and sentence. Defendant was named in a two-count indictment. Count One charged him with knowingly distributing, and attempting to distribute, child pornography in violation of 18 U.S.C. § 2252A(a)(2). Count Two charged him with knowingly possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5).
Defendant and the government entered into a written plea agreement in which the government agreed to dismiss Count One and Defendant agreed to plead guilty to Count II. Defendant was sentenced on Count Two to ninety-six months' imprisonment. The sentence also required Defendant to pay $75, 000 in restitution. Defendant appealed, raising only sentencing issues. The sentence was affirmed on appeal. United States v. Handerhan, 739 F.3d 114 (3d Cir. 2014).
Defendant raises seven claims, five in his 2255 motion and two in a supplemental brief. The 2255 motion raises the following five claims. First, he was constructively denied counsel because his lawyer had a brain tumor, diagnosed after counsel had begun representing Defendant and after Defendant had pled guilty. Second, counsel was ineffective in failing to file a motion to suppress the evidence seized from Defendant's house as a result of an illegal search warrant. Third, counsel was ineffective in failing to file a motion to suppress statements he allegedly made after he was taken into custody during the search of his residence when police did not give him his Miranda warnings. Fourth, counsel was ineffective in failing to file a motion to dismiss the indictment on the bases of pre-indictment delay in bringing the prosecution and on a violation of the Speedy Trial Act. Fifth, counsel was ineffective in not investigating whether Defendant's mental illness prevented him from being able to knowingly or intentionally form the criminal intent necessary to commit the charged offenses.
In the supplemental brief (Doc. 110), Defendant adds his sixth and seventh claims. Defendant's sixth claim is that counsel was ineffective in misleading him "into agreeing to restitution when restitution may not have been an element of the crime." ( Id., ECF p. 2). Defendant alleges that counsel never advised him "that restitution was an element of the penalty" for his offense. ( Id. ). Defendant's seventh claim is that counsel was ineffective in failing to argue that he was incompetent to assist in his own defense, stand trial, or enter a guilty plea.
A. Counsel's Brain Tumor Did Not Result in a Constructive Denial of Counsel Requiring that Prejudice Be Presumed
Defendant's first claim is that he was constructively denied counsel because his lawyer had a brain tumor, diagnosed after counsel had begun representing Defendant and after Defendant had pled guilty. Defendant asserts the cancer would have affected counsel's performance before it was diagnosed. Defendant alleges that brain tumors are progressive diseases that develop over time and cause "memory loss, impaired concentration, problems with reasoning, [and] changes in personality and behavior." (Doc. 93, 2255 motion, p. 3). Defendant alleges that "[v]ery early in his representation" counsel "did exhibit these symptoms and behavior." ( Id. ). Defendant thus asserts prejudice should be presumed from his counsel's illness.
Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland sets forth a two-prong test to establish ineffectiveness. First, counsel's performance must be deficient. Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005)(citing Strickland ). Second, counsel's deficient performance must have prejudiced the defense. Id. (quoting Strickland ). A petitioner must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 105 (quoting Strickland ).
However, in "cases of actual or constructive denial of assistance of counsel altogether, " a defendant does not have to show prejudice. Instead, "prejudice may be presumed...." Palmer v. Hendricks, 592 F.3d 386, 398 (3d Cir. 2010)(quoting Strickland )(internal quotation marks and brackets omitted).
We disagree with Defendant that his counsel's brain tumor means that he was constructively denied counsel. We believe that a brain tumor does not necessarily impair a person's cognitive abilities to such an extent that we must find constructive denial of counsel. Instead, Defendant must still show specific instances of conduct that prejudiced the defense, either stemming from the tumor or based on some other reason.
We support our ruling with Smith v. Ylst, 826 F.2d 872 (9th Cir. 1987). In Ylst, the defendant claimed he was constructively denied counsel based on his attorney's mental illness. The Ninth Circuit rejected the argument, stating: "Rather than attempt to identify mental illnesses that would presumptively disable an attorney from conducting a criminal defense we believe that it is more prudent to evaluate the attorney's actual conduct of a trial in light of allegations of mental incompetence." Id. at 876. See also Dows v. Wood, 211 F.3d 480, 485-86 (9th Cir. 2000)(defense counsel's diagnosis of Alzheimer's disease eighteen months after trial did not establish constructive denial of counsel because the disease varies in its manifestations, and the better course was to examine counsel's actual performance); Jackson v. United States, 1994 WL 375427, at *3 (7th Cir. 1994)(nonprecedential)(defense counsel's drug use during trial did not constitute per se ineffectiveness)(citing Ylst ).
Defendant must therefore support his claims of ineffectiveness with specific instances of his attorney's conduct claimed to be deficient and which resulted in prejudice.
B. The Claim that Counsel Was Ineffective in Failing to Obtain the Three Experts' Reports Before Defendant Entered His Guilty Plea
As part of his first claim concerning constructive denial of counsel, Defendant does make a specific claim of ineffectiveness, that counsel was ineffective in failing to obtain three experts' reports before Defendant pled guilty. Defendant asserts that these experts, one in computer forensics and two in mental health, would have created reasonable doubt that Defendant was guilty of the charged offenses.
The government counters that examination of the opinions of the mental-health experts reveals that their reports would not have exonerated Defendant. The government cites the sentencing transcript. As for the computer expert, the government points out that counsel did find a computer expert and did seek several continuances of trial for the purpose of having that expert examine the evidence. If the expert had found any evidence favorable to Defendant, counsel would have presented it.
We agree with the government. The report of one of the mental-health experts is attached to Defendant's sentencing memorandum and the report of the other is attached to the presentence report. These reports would not have established reasonable doubt, and Defendant does not explain how they would have. In fact, these reports indicate Defendant admits he downloaded child pornography. Second, as to the computer expert, Defendant does not provide us with a copy of that expert's report nor does he describe the substance of the report. We therefore cannot evaluate the merits of the claim as it relates to this expert and therefore reject it. Also, this expert was retained before entry of the guilty plea, as counsel sought extensions of the trial date so that this expert could examine Defendant's computer.
C. The Claim That Counsel Was Ineffective in Not Moving to Suppress the Evidence Seized From Defendant's House
Defendant's second claim is that counsel was ineffective in failing to file a motion to suppress the evidence seized from Defendant's house. Defendant argues the search warrant violated the Fourth Amendment in the following ways: (1) the warrant was defective because it named the address of the place to be searched as being in Jonestown Borough when Defendant's residence was in Swatara Township; (2) the application for the warrant stated that an internet account in Defendant's name was accessing the internet from locations in Jonestown Borough when Defendant never accessed the internet from that Borough or used a computer or had property in Jonestown Borough; (3) police lied or acted recklessly by asserting on the warrant application that Defendant had said in January 2006 that his residence was in Jonestown Borough when Defendant actually said his residence was in Mount Carmel Borough; (4) the warrant's description of the residence to be searched was not a description of his residence; (5) the Pennsylvania magisterial district judge who approved the warrant failed to act in a neutral and detached manner because of the nature of the charges; and (6) the warrant application lacked a showing of probable cause.
Defendant's first argument lacks merit, and to show that we must address the fourth argument at this time. The fourth argument is that the warrant's description of the residence to be searched was not a description of Defendant's residence. The warrant described Defendant's house as follows: "Wooden ranch style home with tan vinyl siding, green shutters and door with an exposed garage undernieth (sic) the residence known as 30 Middle Avenue, Jonestown, PA 17038, Jonestown Borough, Lebanon County." (Doc. 107-1, ECF p. 9, search warrant and application). Defendant says this description is wrong by comparing it to a description apparently made by a real estate company for the purpose of selling the house. We will not quote the latter description. (Doc. 111, ECF p. 2 ¶ G). It naturally provides greater detail than the description in the warrant, but the latter description is consistent with the warrant's - both describe a ranch-style house with tan (or taupe) siding, green shutters, and a garage underneath (or at street level). We thus disagree with Defendant that the warrant description is not of the same house.
Returning to the first argument, we note that Defendant concedes that 30 Middle Avenue is correct, but argues that the reference to Jonestown Borough is improper because his residence is physically in Swatara Township. In opposition, the government points out that, while Defendant's residence may be in Swatara Township, the warrant used Jonestown Borough because Jonestown is his ...