United States District Court, W.D. Pennsylvania
R. HORNAK, UNITED STATES DISTRICT JUDGE
before the Court is Petitioner Craig Alan Finley's
pro se Motion to Vacate, Set Aside, or Correct a
Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 115)
("Petition") filed at Criminal No. 11-04 (Erie) and
as Civil Action No. 15-249 (Erie). The United States has
filed a Response to the Motion, to which Mr. Finley has filed
a Reply. For the reasons which follow, the Motion will be
Finley was charged in a four-count superseding Indictment
with (1) sexual exploitation of a minor in and around August
2010, in violation of 18 U.S.C. §§ 2251(a) and (e);
(2) receipt of material depicting the sexual exploitation of
a minor from in and around August 2010 to in and around
December 2010, in violation of 18 U.S.C. §§
2252(a)(2) and (b)(1); (3) distribution of material depicting
the sexual exploitation of a minor from in and around August
2010 to in and around December 2010, in violation of 18
U.S.C. §§ 2252(a)(2) and (b)(1); and (4) possession
of material depicting the sexual exploitation of a minor from
in and around August 2010 to in and around December 2010, in
violation of §§ 2252(a)(4)(B) and (b)(2). (ECF No.
charges arose out of a Federal Bureau of Investigation
("FBI") undercover operation on the peer-to-peer
Internet file sharing network GigaTribe. GigaTribe is a
program offered for free that anyone who has Internet access
can download onto their computer. "Peer-to-peer"
simply means that the GigaTribe program allows computers in
different locations to connect together over the Internet,
and GigaTribe will act as a conduit between the computers to
allow them to share information and otherwise communicate
with one another. GigaTribe allows users to share: (i) only
content the user has specifically designated for sharing on
GigaTribe; (ii) only with other GigaTribe users that are
"friends;" and (iii) only while both users are
connected to GigaTribe through the Internet. The FBI
undercover agents involved in this case operated on the
GigaTribe network using actual GigaTribe usernames that had
been taken over by the FBI in prior child pornography
undercover investigation initially involved FBI Agent Marc
Botello of Los Angeles, California communicating via
GigaTribe with Mr. Finley in October, 2012. Working
independently from Agent Botello, FBI Agent Barry Couch of
Rochester, New York communicated via GigaTribe with Mr.
Finley in late December, 2012.
October 21, 2010, Agent Botello logged onto the GigaTribe
network using the GigaTribe username, "JoePeter94."
Tr., Jan 19, 2012, at 37 (ECF No. 104). He saw the username
"Boys4me2010, " surveyed his online GigaTribe
shared folders, and realizing that a password was required in
order to view the contents of the folders, he initiated a
chat. Id. at 38. When one logs onto GigaTribe, they
have to manually set certain files on the computer to share,
that is, one has to affirmatively make the content available
for others to download Id. at 16. Botello asked
Boys4me2010 if he (Botello) could have the password for a
folder titled "stuff that Boys4me2010 was sharing on the
network. Id. at 39, 46. Boys4me2010 gave Botello the
password. Id. at 46. Botello clicked on the folder,
entered the password, and the list of files the folder
contained was displayed to Botello. Id. at 51.
Botello then downloaded several files from the "stuff
folder verifying that they contained what appeared to be
child pornography. Id. at 52-54.
was able to identify username Boys4me2010 as operating from
an IP address of 188.8.131.52 on October 21, 2010.
M. at 45, 54. He further confirmed that IP address
of 184.108.40.206 was registered with Armstrong Cable Services
of Butler, Pennsylvania. Id. at 60. Botello served
Armstrong Cable with a request for the subscriber information
for the IP address 220.127.116.11. Id. On November 2,
2010, Armstrong Cable responded that the subscriber was Craig
Alan Finley with a residence address in Titusville,
Pennsylvania. Id. at 61-65. Botello passed the
information he had gathered about Boys4me2010 onto the FBI
field office in Erie, Pennsylvania because that office covers
the Titusville, Pennsylvania area. Id. at 65-66.
FBI Agent Michael Shaffer received the lead from Agent
Botello in early December, 2010, and began initial
preparation and investigation towards gaining a search
warrant for Mr. Finley's residence. Tr. Jan. 24, 2012, at
3 (ECF No. 105). Before a search warrant was obtained, Agent
Barry Couch in Rochester, New York, logged onto the GigaTribe
network on December 20, 2012, in an undercover capacity using
the GigaTribe username "PurpleTrim420." Tr., Jan
19, 2012, at 88-89 (ECF No. 104). Because PurpleTrim420 was
at one time an active account trading child pornography, the
user had a friends' list that included Boys4me2010.
Id. at 91. Couch engaged in a conversation with
Boys4me2010. Id. at 91, 96. He pretended that he had
forgotten Boys4me2010's passwords for his shared
GigaTribe folders and asked for them again. M at 96.
Boys4me2010 gave Couch the passwords. M at 97-98. Couch then
used the passwords to unlock the Boys4me2010's shared
folders and downloaded several still images and movies of
child pornography. Id. at 98-104. Couch viewed
information that user Boys4me2010 had placed in his profile,
which indicated that the user was a male with a birthdate of
January 26, 1977.
continued chatting with Boys4me2010 and learned that the user
may be physically engaged in sexual conduct with a minor
child. Id. at 106. Because there was potentially a
victim in present danger of being molested, Couch continued
chatting with Boys4me2010 in order to learn as much
information as he could to allow law enforcement to take
steps to protect the potential victim. Id. at
107-18. Through his conversation with Boys4me2010, Couch
learned that the user was approximately 33 years old; the
minor children were boys ranging in age from 7 to 14 years
old; the minor boys were related to the user; the user did
not own a vehicle and he lived within a 15-minute walking
distance of the minors. Id. at 119-22.
served Armstrong Cable with a request for the subscriber
information for the IP address 18.104.22.168 being used on
December 20, 2012. Id. at 130. Armstrong Cable
Company responded that the IP address was registered to Craig
Finley with a residence address in Titusville, Pennsylvania.
Id. at 131. Couch then forwarded the information he
had gathered to the Erie FBI field office, letting the office
know that there was an immediate concern that an adult might
be engaging in sexual conduct with a minor. Id. at
Shaffer was already preparing for a search warrant for Mr.
Finley's residence based on the information Botello had
forwarded to him in early December when the second lead from
Couch came in containing the identical IP address and
GigaTribe username. Tr. Jan. 24, 2012, at 4 (ECF No. 105).
The matter became a priority for Couch because of the
allegation that a minor child was at risk, and thus the FBI
obtained and executed a search warrant on December 23, 2010.
Id. at 4-5.
(lay the search warrant was executed, Couch logged onto
GigaTribe and was able to see that Boys4me2010 was also
logged into his GigaTribe account. Id. at 8-9. Couch
shared this information with Shaffer, and so he proceeded to
Mr. Finley's residence assuming that Mr. Finley was at
home. Id. at 9. The Agents knocked at the door and
announced that it was law enforcement. Id. When no
one answered, the Agents decided to forcefully enter the
apartment believing Mr. Finley may be attempting to destroy
evidence. Id. When the Agents entered the apartment
they discovered that Mr. Finley was not there. Id.
Shaffer viewed Mr. Finley's running computer.
Id. at 10. The screen on the monitor was asleep.
Id. at 16. Shaffer moved the mouse connected to the
computer tied to the sleeping monitor, which "woke
up" the screen. Id. at 13, 16. Viewing the
screen. Agent Shaffer confirmed that the GigaTribe program
with a username of Boys4me2010 was active on the computer.
Id. at 13-14, 16. Prior to the search, Shaffer had
viewed an image that Couch had downloaded th£it
Boys4me2010 was sharing on GigaTribe of a boy sitting on a
green couch, and further observed the same green couch in Mr.
Finley's apartment. Id. at 17-18.
with the execution of the search warrant were Titusville
police officers who knew that Mr. Finley's brother lived
close by. Tr. Jan. 17, 2012, at 29 (ECF No. 102). The Agents
decided to go to Mr. Finley's brother's house
thinking that Mr. Finley might be there. Id; Tr.
Jan. 24, 2012, at 22. He was not. Tr. Jan. 17, 2012, at 30.
The officers were told that he was Christmas shopping with
his sister-in-law. Id. One of the occupants called
the sister-in-law and handed the phone to an Agent who spoke
with her, and then with Mr. Finley. Id. The Agent
asked him to return to his apartment. After he arrived, Mr.
Finley was interviewed, and the search warrant process was
completed. Among the items seized from Mr. Finley's
apartment were two computers (one computer was not plugged
in) and a cell phone that Mr. Finley possessed when he was
State Police Corporal Robert Pearson examined the two
computers and the cell phone seized during the execution of
the search warrant. Tr. Jan. 24, 2012, at 51 (ECF No. 105).
He is a federally deputized law enforcement officer and
expert in computer forensics. Id. at 37-38. At the
time of trial he was the coordinator of the Northwest
Computer Crimes Task Force. Id. at 37. His
examination showed that both computers contained, among other
items, Mr. Finley's resume, a link to his Facebook page,
a GigaTribe account for Boys4me2010, a Skype account with the
username Boys4me2010, an AOL account with the username
Boys4me2010, and over 30, 000 images and videos of child
pornography. Id. at 58-65. Corporal Pearson
discovered multiple saved chat logs showing that Boys4me2010
had engaged in conversations with 100's of other
GigaTribe users about sharing, distributing, and receiving
child pornography. Id. at 74-110. A review of the
chat records revealed that on October 3, 2010, Boys4me2010
announced to other GigaTribe users that he was updating his
GigaTribe folders as a result of a computer change.
Id. 109-110, 121. In addition, the chat records
indicated numerous instances when Boys4me2010 tells other
GigaTribe users that he leaves his computer and GigaTribe
account up and running when he is away from his computer.
Id. at 142-44.
Finley was arrested and detained on December 23, 2010.
Assistant Federal Public Defender Thomas Patton was appointed
to represent Mr. Finley. A jury trial was set for January,
2012. On December 14, 2011, Mr. Patton filed a motion to
suppress statements Mr. Finley gave to the Agents v/hen he
was questioned at his apartment. On January 4, 2012, Mr.
Finley sent a letter to the Court, which was filed as a
motion to disqualify counsel.
Court held a hearing on the motion to disqualify counsel on
January 10, 2012. Tr. Jan. 10, 2012 (ECF No. 92). The Court
conducted an in camera examination of Mr. Finley
outside of the presence of both the government and Mr.
Patton. Id. at 4-10. Mr. Finley explained that he no
longer wanted Mr. Patton to represent him because of
communication issues, disagreements about trial strategy,
pressure to take a plea, non-response to requests to file
motions, and refusal to file motions. Id. at 4-8.
The Court told Mr. Finley that it was "not going to
replace him based on what you have told me this morning. I
just don't think there's a good basis for that,
granting that request." Id. at 9.
court the Court asked Mr, Patton questions regarding his
relationship with Mr. Finley, his ability to represent Mr.
Finley, and whether he pressured him to take a plea..
Id. at 10-11. Being satisfied that Mr. Patton was
able to properly represent Mr. Finley, the Court denied Mr.
Finley's motion to disqualify counsel and his request to
continue the trial to seek new counsel. Id. at 11.
suppression hearing was held prior to trial on January 17,
2012. Tr. Jan. 17, 2012 (ECF No. 102). After testimony and
evidence were received, the Court found that Mr. Finley was
in custody at the time he was questioned and that he had not
been given Miranda warnings. Accordingly, the motion
to suppress was granted and Mr. Finley's statements were
trial began on January 18, 2012, after which Mr. Finley was
convicted of all four counts. Prior to sentencing the Court
issued tentative findings and rulings finding that (i) a
vulnerable victim enhancement pursuant to U.S.S.G. §
3Al. 1 (b)(1) was proper because the Court determined that
the minor victim was asleep, making the child unusually
vulnerable; and (ii) that no sentence would be imposed at
Count 4 of the superseding indictment because it is a lesser
included offense of Count 2.
8, 2012, Mr. Finley was sentenced to a total term of
imprisonment of 50 years, consisting of 30 years at Count 1
of the superseding indictment, a consecutive 20-year sentence
at Count 2 of the superseding indictment, and a concurrent
term of 20 years' imprisonment at Count 3 of the
timely appeal to the United States Court of Appeals for the
Third Circuit was filed by Assistant Federal Public Defender
Karen Sirianni Gerlach. On August 12, 2013, that court issued
its opinion affirming the judgment of conviction and
sentence. United States v. Finley, 726 F.3d 483 (3d
Cir. 2013). Thereafter, Mr. Finley timely filed his motion to
vacate, raising issues as to the claimed ineffectiveness of
both his trial and appellate counsel.
STANDARD OF REVIEW
2255 of Title 28 of the United States Code provides a means
of collaterally attacking a sentence imposed after a
conviction. See United States v. Cannistraro, 734
F.Supp. 1110, 1119 (D. N.J. 1989), aff'd sub nom.
Appeal of Cannistraro, 919 F.2d 133 (3d Cir. 1990), and
aff'd 919 F.2d 137 (3d Cir. 1990). Pursuant to
28 U.S.C. § 2255, a federal prisoner may move the
sentencing court to vacate, set aside, or correct a sentence:
[U]pon the ground that the sentence was imposed in violation
of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.
28 U.S.C. § 2255 (2012). Relief under this provision is
"generally available only in 'exceptional
circumstances' to protect against a fundamental defect
which inherently results in a complete miscarriage of justice
or an omission inconsistent with the rudimentary demands of
fair procedure." United States v. Gordon, 979
F.Supp. 337, 339 (E.D. Pa. 1997) (quoting Hill v. United
States, 368 U.S. 424, 428 (1962).
district court is required to hold an evidentiary hearing on
a motion to vacate sentence filed pursuant to 28 U.S.C.
§ 2255 unless the motion, files, and records of the case
show conclusively that the movant is not entitled to relief.
See 28 U.S.C. § 2255(b); United States v.
Booth, 432 F.3d 542, 545-46 (3d Cir. 2005); United
States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994).
Thus, if the record conclusively negates the factual
predicates asserted in support of a § 2255 motion, or if
the movant would not be entitled to relief as a matter of law
even if the factual predicates as alleged in the motion are
true, an evidentiary hearing is not required. See
Government of Virgin Islands v. Nicholas, 759 F.2d 1073,
1075 (3d Cir. 1985).
Court finds no need for an evidentiary hearing here, as the
record conclusively establishes that Mr. Finley is not
entitled to the relief sought in the petition. See 28 U.S.C.
§ 2255. Accordingly, his motion for an evidentiary
hearing will be denied.
Finley argues that he was denied effective assistance of
counsel under the Sixth Amendment of the Constitution at
trial and on appeal. Underlying Mr. Finley's
ineffectiveness of counsel arguments is his central assertion
that an anonymous, unauthorized person surreptitiously and
illegally accessed his computers, engaged in the numerous
chat session with other GigaTribe users, and caused images
and videos of child pornography to be placed on his
Mr. Finley alleges his counsel was ineffective as follows:
• in failing to challenge the search warrant because the
officers had knowledge indicating unauthorized user activity;
• in failing to move for acquittal pretrial, during
trial, and post-trial as to Count One because the depiction
did not meet the definition of sexual activity nor did the
evidence establish Mr. Finley's receipt;
• in refusing to investigate and present an alternate
user defense theory;
• in failing to subpoena certain character and fact
• in failing to adequately cross-examine government
witnesses Shaffer, Couch, Botello, Pearson, and Blashford;
• in failing to object to prosecutorial misconduct;
• in failing to be competent in computer forensics; and
• in failing to preserve issues for appeal.
Finley also argues that his Sixth Amendment right to
effective counsel was violated by the court denying his
motion to appoint new counsel because it resulted in
"conflicted" counsel as follows:
• trial counsel was "representing conflicting
interests, " by which Mr. Finley means Mr. Patton
refused to investigate Mr. Finley's defense and that Mr.
Patton would not vigorously and competently pursue Mr.
Finley's defense strategy;
• appellate counsel was ineffective because she was
operating under a conflict based on the fact that she was
employed by the same Federal Public Defender's office as
Mr. Patton, and that she failed to raise any issue based on
Mr. Finley's theory of defense; and
• due to the conflicts of interests, none of the issues
Mr. Finley has raised in this proceeding were raised on
appeal, which denied him a first appeal as of right.
underlying Mr. Finley's Petition is his assertion that he
is "actually innocent" of the charges. This claim
is not a traditional claim of actual innocence, but is in
fact a rephrasing of Mr. Finley's primary ineffectiveness
claims. Although he asserts that he is in fact "actually
innocent" of the charges against him, he bases this
assertion on the same arguments supporting his
ineffectiveness claims; that is, his trial and appellate
counsel failed to competently and thoroughly investigate and
pursue Mr. Finley's alternate remote user access defense.
He claims this resulted in the jury being denied the evidence
upon which it would have found Mr. Finley to be innocent.
Mr. Finley's Actual Innocence Claim and Remote User
Finley's claim that he was actually innocent permeates
his Petition and therefore the Court will first set out his
allegations that someone else accessed his computers without
his knowledge. As noted, this is not a typical claim of
actual innocence. "To establish actual innocence,
petitioner must demonstrate that, 'in light of all the
evidence, ' 'it is more likely than not that no
reasonable juror would have convicted him.'"
Bousley v. United States, 523 U.S. 614, 623 (1998)
(quoting Schlup v. Delo, 513 U.S. 298, 327-328
(1995)). '"[A]ctual innocence' means factual
innocence, not mere legal insufficiency." Id.
Finley acknowledges that he downloaded the GigaTribe software
in early 2010, explaining that his intent was to use the
program to share video games files and sessions, but that he
"never bought into activate or register Gigatribe."
Pet. Reply at 26 (ECF No. 136). He claims he did not activate
the Boys4me2010 GigaTribe account, did not know that it was
on his computer, and he was not the person operating the
account. Similarly, he claims he was not the person who
engaged in any of the numerous chat sessions with other
GigaTribe users discussing receiving, distributing, and
possessing child pornography using the Boys4me2010 account.
Mr. Finley also claims that he was not the person who
discussed with the undercover Agent and other users the
user's, desire to engage in unlawful sexual conduct with
Mr. Finley's minor relatives. Finally, he claims he did
not create the folders in the Boys4me2010 account named after
his same minor relatives and containing images and videos of
Finley's theory is that an unknown person unlawfully and
surreptitiously gained remote access to his computer, and
that the unauthorized user activated a GigaTribe account with
the username Boys4me2010 using Mr. Finley's birthdate and
gender. This user then supposedly created several folders
within the Boys4me2010 account including the primary folder
titled "Stuff as well as folders named after Mr.
Finley's minor relatives. The remote user then proceeded
to engage in unlawful activity involving child pornography
from approximately August 2010 though December 2010. This
user allegedly engaged in hundreds of chat sessions about
child pornography with other users. In several of these
conversations the user offered information directly aligning
with Mr. Finley's life and relationships. The user
downloaded over 30, 000 unlawful child pornography files and
placed them in folders on Mr. Finley's computer. Mr.
Finley asserts that he did not know that this activity was
occurring and did not know that the files were on his
Finley acknowledges that the image of his minor relative on
Mr. Finley's green couch, for which he was convicted of
production of child pornography, was on his computer. He
claims he is not responsible for distributing this file on
GigaTribe. He otherwise does not address the existence of
folders allegedly created by the unknown GigaTribe remote
user titled with reference to his minor relatives or the fact
that images of his minor relatives were placed in those
Finley implies that the unauthorized hacking began with his
old Compaq computer that was not connected to the Internet at
the time of the search warrant. The Compaq computer did
contain the Boy4me2010 GigaTribe account and the related
folders containing over 30, 000 files of child pornography as
well as the folders and files related to his minor relatives.
Mr. Finley explains that the child pornography files on his
Dell computer were simply copied over from his old Compaq
computer without his knowledge. Mr. Finley's admitted use
of the Compaq computer and his subsequent copying over of
files from that computer to his new Dell computer occurred at
the same time that the alleged remote user told his fellow
GigaTribe users that he was in the process of transferring
files from an old computer to a new computer.
Finley next claims without any evidentiary support that this
"case reveals Petitioner the victim of multiple
instances of anonymous, unauthorized user access activity;
(i.e., Hacker), resulting in the instant charges . .
. ." Pet. Mot. To Vacate, at 7 (ECF No. 115). Mr. Finley
supports his theory with evidence produced during the trial
that when the search warrant was executed the Agents
discovered the GigaTribe program up and running on Mr.
Finley's computer when he was not at home.
Finley asserts that the "officers heard computer sounds
coming from inside" and therefore entered his apartment
in case evidence was being destroyed. Id. at 19.
There is no evidence in the record that the officers heard
computer sounds before entering the apartment. The evidence
shows that at the time the search warrant was executed Agent
Couch had logged onto GigaTribe and confirmed that the
Boys4me2010 account was also logged onto GigaTribe. Tr. Jan.
24, 2012, at 8 (ECF No. 105). This information was relayed to
Agent Shaffer who proceeded to execute the search warrant
assuming that Mr. Finley was present in the apartment.
Id. at 8-9. When no one responded to law
enforcement's knock on the door the decision was made to
forcefully enter the apartment in case Mr. Finley was
attempting to destroy potential evidence. Id. at 9,
Finley also erroneously asserts that the prosecutor implied
Mr. Finley was at the apartment when the Agents arrived to
execute the search warrant but left to go to his
brother's house when he realized the Agents were there.
Id. There is no evidence in the record to support
this assertion. The evidence shows that after entering Mr.
Finley's apartment and discovering that Mr. Finley was
not there, the Agents attempted to locate Mr. ...