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Lebowitz v. United States

United States District Court, N.D. Georgia, Atlanta Division

February 11, 2015

UNITED STATES OF AMERICA, Respondent. Civil No. 1:14-CV-0646-RWS-JFK


RICHARD W. STORY, District Judge.

The matter is before the Court on Magistrate Judge Janet F. King's Final Report and Recommendation (Final R&R) [231] and Movant's objections [233]. For the reasons discussed below, Movant's objections are overruled, the Final Report and Recommendation is adopted as the Order of this Court, and Movant's 28 U.S.C. § 2255 motion and a certificate of appealability (COA) are denied.

In reviewing a Magistrate Judge's Report and Recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Absent objection, the district judge "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge, " 28 U.S.C. § 636(b)(1), and "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation, " Fed.R.Civ.P. 72, advisory committee note, 1983 Addition, Subdivision (b).

I. Discussion

Movant is serving two concurrent 320-month terms of imprisonment for producing child pornography and attempting to entice a minor. (See J., ECF No. 169); United States v. Lebowitz, 676 F.3d 1000, 1006 (11th Cir. 2012). On April 5, 2012, the Eleventh Circuit Court of Appeals affirmed the judgment against Movant. Lebowitz, 676 F.3d at 1017. The United States Supreme Court denied certiorari on March 4, 2013. Lebowitz v. United States, ___ U.S. ___, 133 S.Ct. 1492 (2013).

In his § 2255 motion, as amended with counsel, Movant has raised one ground for relief: pre-trial counsel ineffectively presented the motions for a Franks[1] hearing and to suppress evidence seized from Movant's home (hereinafter collectively referred to as the suppression motion). (Br. on Mot. to Vacate at 18-31, ECF No. 205-1; Mov't First Reply at 2-8, ECF No. 220).

A. Background

At issue are Officer Beth Suber's statements - as bolded - in her search warrant affidavit -

The suspect in this case, [Movant], was arrested for criminal attempt to commit aggravated child molestation and enticing a child for indecent purposes; whereas he contacted the victim from his home computer, via the internet, to send nude photos of himself and emails to discuss oral and anal sex with the victim. Suspect stated that he was at work but when he got home, he would email the photos. Suspect did drive to the victim's house with the intentions of having sex with the victim. Those intentions were displayed when he placed a bag with two unsealed personal lubricants and a large amount of condoms in the front passenger seat of his vehicle.

(Gov't Resp. to Motion to Suppress, Aff. & Appl. for a Search Warrant, ECF No. 60 (emphasis added).)[2] A DeKalb County Magistrate Judge issued a search warrant for Movant's home for, among other things, video tapes and items commonly found in child pornographic cases. (Id., Search Warrant.) The search revealed a video tape of Movant engaging in sexual acts with teenage males. Lebowitz, 676 F.3d at 1007. It is counsel's pre-trial assistance on the suppression of that video that concerns Movant in his § 2255 motion. (Objections to Final R&R at 18-19, ECF No. 233.)

Movant, through Omar F. Guerra Johansson, who presented the suppression motion, argued, among other things, that Suber's home statement was recklessly false based on Suber's work statement, which contradicted the home statement by stating that Movant was at work and would contact the victim when he got home.[3] (Mem. for Mot. to Suppress at 14, ECF No. 54.) In denying the suppression motion, the Court accepted as true that Movant had made the work statement and found that there was no internal conflict between the two statements and that Movant's argument bordered on frivolous. (See Report and Recommendation on Mot. to Suppress (hereinafter Suppression R&R) at 10-11, 21-22, ECF No. 63; Order of July 22, 2009, ECF No. 94.) In addition to rejecting Movant's claims of falsity or reckless omissions, the Court found that the affidavit provided probable cause to search Movant's home, that the affidavit was not over broad, and that, even if it was, the good faith exception would apply. (Suppression R&R at 22-35.)

B. The § 2255 Motion and Final Report and Recommendation

In his one ground for relief - ineffective assistance of pre-trial counsel on the suppression motion - Movant argues (1) that Johansson was deficient because he did not review discovery[4] and argue based thereon that there was no factual basis for the home and work statements; (2) that Johansson was deficient in arguing that the warrant was over broad in allowing a search for child pornography because he failed to present certain non-binding case law to show that Movant's crime of arrest and child pornography are not necessarily connected; and (3) that Johansson and Laura D. Hogue[5] were both deficient for failing to file a meritorious Franks claim based on Suber's fabrication of the work statement, which evidence allegedly showed that Movant had never made. (Br. on Mot. to Vacate at 19-24; Mov't First Reply at 2-3.) Movant attempts to show that the work statement is false because it is not otherwise recorded and because Movant has denied making such statement. (Mov't First Reply at 3, 6-7.)

Movant argues (1) that in ruling on the suppression motion the Court relied on the work statement as true to find that Movant contacted the victim from his home computer; (2) that the work statement was recklessly false; and (3) that the suppression ruling, thus, cannot stand. (Mov't Second Reply at 2-4, ECF No. 230.) Movant further argues that, even if the discovery material could factually support the home statement, using the discovery to show the sufficiency of the affidavit without the work statement is impermissible because Suber did not provide sufficiently detailed factual support from discovery to the DeKalb County Magistrate Judge. (Id. at 10-11.) Movant additionally argues that he was prejudiced because the ...

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