Lynch v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DAVID PAUL LYNCH,

v. Case No. 8:17-cr-37-VMC-AEP

8:21-cv-02614-VMC-AEP

UNITED STATES OF AMERICA.

____________________________/

ORDER

This matter is before the Court pursuant to David Paul

Lynch’s pro se 28 U.S.C. § 2255 Motion to Vacate, Set Aside,

or Correct Sentence (Civ. Doc. # 1; Crim. Doc. # 159), filed

on October 27, 2021. The United States of America responded

on November 29, 2021 (Doc. # 3), and Mr. Lynch replied on

December 21, 2021. (Doc. # 10). With leave from the Court,

the United States filed a sur-reply on January 10, 2022. (Doc.

# 13). For the reasons that follow, the Motion is denied.

I. Background

On September 6, 2017, a grand jury indicted Mr. Lynch on

eight counts of attempting to produce child pornography in

violation of 18 U.S.C. § 2251(a) and (e); one count of

traveling in foreign commerce to engage in illicit sexual

conduct, in violation of 18 U.S.C. § 2423(b); one count of

receipt of child pornography, in violation of 18 U.S.C. §

2252(a)(2) and (b)(1); one count of attempting to travel in

foreign commerce to engage in sexual conduct, in violation of

18 U.S.C. § 2423(b) and (e); and one count of possession of

child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B)

and (b)(2). (Crim. Doc. # 58).

The charges against Mr. Lynch for attempting to produce

child pornography involve his travel to the Philippines to

engage in sexual activity with three underage girls. On June

15, 2005, Mr. Lynch filmed himself sexually abusing Liza, who

was approximately fifteen years old at the time. (Crim. Doc.

# 149 at 154:22–155:4, 160:6–14). In December 2006, Mr. Lynch

travelled to the Philippines to meet with Erica, who was

approximately thirteen years old at the time. (Id. at 177:5–

14, 182:18–21). While in the Philippines, Mr. Lynch filmed

himself sexually abusing Erica. (Id. at 179:13–21).

Similarly, in August 2007, Mr. Lynch travelled to the

Philippines to meet with Rica, who was approximately thirteen

years old. (Id. at 210:16–24, 211:5–8). Mr. Lynch took a

photograph of himself sexually abusing Rica. (Id. at 210:4–

15).

At trial, the Government introduced evidence of Liza,

Erica, and Rica’s ages in three ways. First, investigators

relied on chat messages sent by Mr. Lynch, where the girls’

ages were discussed. In a February 1, 2006, chat between Mr.

Lynch and an unknown individual, Mr. Lynch stated that Liza

was “only 16[.]” (Crim. Doc. # 102-20 at 2). Based on this

chat, Task Force Agent Megan Buck testified at trial that

Liza would have been fifteen in June 2005. (Crim. Doc. # 149

at 160:12–14). Similarly, in a December 5, 2006, chat with

Thomas Winqvist, an individual with whom Mr. Lynch conversed

frequently, Mr. Winqvist relayed to Mr. Lynch that Erica was

thirteen. (Crim. Doc. # 102-23 at 1). As to Rica, Agent Buck

testified that based on the chats, Rica’s age was believed to

be around thirteen. (Crim. Doc. # 149 at 211:5–8).

Second, the Government presented expert testimony from

Dr. Walter Lambert, a pediatrician and pediatrics professor,

that in Dr. Lambert’s medical opinion Liza, Erica, and Rica

were under eighteen. (Doc. # 150 at 8:21–25, 23:20–24:3,

30:24–31:10, 29:20–30:3).

Third, the Government introduced a video at trial

depicting Mr. Lynch engaging in sexual activity with Erica

and other women who were not alleged to be minors. (Crim.

Doc. # 149 at 204:17–205:2). The video was accompanied by a

transcript and partial translation, since at certain points

throughout the video, the participants conversed in a

Filipino dialect, identified as Tagalog. (Id. at 203:3–13).

At one point in the video, one of the women states that Erica

is thirteen years old. (Id. at 205:23–206:1). This statement

was made in English. (Id.).

Mr. Lynch presented expert testimony from Dr. Arlan

Rosenbloom, a retired pediatrics professor, regarding the

girls’ ages. (Id. at 151:16–22). Dr. Rosenbloom testified

that he found “no evidence that one could say with any degree

of medical certainty that the individuals in those

photographs and videos were under 18 years of age.” (Id. at

181:18–20).

Following a jury trial, on October 13, 2017, Mr. Lynch

was found guilty on all counts. (Crim. Doc. # 101). On March

1, 2018, the Court sentenced Mr. Lynch to a 3,960-month term

of imprisonment, followed by a 15-year term of supervised

release. (Crim. Doc. # 125).

II. Discussion

The Government contends that Mr. Lynch’s motion should

be dismissed because it is untimely. (Civ. Doc. # 3 at 8).

Mr. Lynch argues that the statute of limitations should be

equitably tolled due to COVID-19. (Civ. Doc. # 10 at 1). In

the alternative, the Government also contends that Mr.

Lynch’s motion should be denied on the merits. (Civ. Doc. #

3 at 10). The Court will first address timeliness before

moving on to the merits of Mr. Lynch’s claims.

A. Timeliness

The one-year statute of limitations for filing a motion

under Section 2255 begins to run from the latest of: (1) the

date on which the judgment of conviction becomes final; (2)

the date any unconstitutional government impediment to the

movant’s motion is removed; (3) the date on which the right

asserted was initially recognized by the Supreme Court; or

(4) the date on which the facts supporting the claim or claims

could have been discovered through the exercise of due

diligence. 28 U.S.C. § 2255(f); Jones v. United States, 304

F.3d 1035, 1037-38 (11th Cir. 2002).

Mr. Lynch has not alleged that any unconstitutional

government impediment that prevented him from timely filing

his motion as required by Section 2255(f)(2). Nor does he

identify a newly recognized right as required

by Section 2255(f)(3), or allege that he discovered any new

facts through the exercise of due diligence under Section

2255(f)(4). Accordingly, Section 2255(f)(1) requires Mr.

Lynch to have filed his motion within the year after his

conviction became final.

Mr. Lynch’s judgment of conviction became final on March

9, 2020 — the day that the Supreme Court denied

certiorari. (Crim. Doc. # 156); see Washington v. United

States, 243 F.3d 1299, 1300-01 (11th Cir. 2001)

(“Washington’s conviction became final on October 6, 1997,

the day the Supreme Court denied his certiorari petition.”).

Therefore, Mr. Lynch had one year from that date, through

March 9, 2021, to file a timely Section 2255 motion. But

Lynch’s motion was not filed until October 27, 2021 — nearly

twenty months after his conviction became final. Accordingly,

Lynch’s motion is untimely under 28 U.S.C. § 2255(f).

Unless equitable tolling applies, the motion is time-

barred and due to be dismissed. See Warmus v. United States,

253 F. App’x 2, 5-6 (11th Cir. 2007) (holding that

a Section 2255 motion filed more than one year after

petitioner’s conviction becomes final is “subject to

dismissal as time-barred”).

B. Equitable Tolling

Statutes of limitations for motions under Section 2255

can be equitably tolled under certain circumstances. Outler

v. United States, 485 F.3d 1273, 1280 (11th Cir. 2007).

“Equitable tolling is only available if the petitioner

establishes (1) extraordinary circumstances and (2) due

diligence.” Id. Indeed, “[e]quitable tolling is an

extraordinary remedy and is applied sparingly.” Id. The

movant “bears a strong burden to show specific facts to

support his claim of extraordinary circumstances and due

diligence.” Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir.

2008).

Mr. Lynch submits that the COVID-19 pandemic restricted

his access to the law library and the commissary, and that he

has diligently pursued his rights. (Civ. Doc. # 10 at 1–2).

Specifically, Mr. Lynch explains that beginning in March

2020, the prison facility where he was housed instituted a

facility lockdown and prevented inmates from accessing the

law library. (Id. at 8). Because of these lockdowns, Mr. Lynch

was unable to obtain the requisite legal form to submit his

Section 2255 motion. (Id. at 8–9). In addition, Mr. Lynch

explains that he was separated from his legal work, including

materials containing his criminal case number, rendering him

unable to list the crimes with which he was charged. (Id. at

8). Mr. Lynch also states that the prison facility restricted

his ability to purchase items from the commissary, including

pens, paper, envelopes, and stamps, and although staff

members “were supposed to bring [the inmates] materials to

write with, FBOP staff at USP Tucson never provided [Mr.

Lynch] with pens, paper, envelopes, or stamps which [he] could

use to file a 2255 motion.” (Id. at 9). Indeed, a memorandum

indicates that commissary sales for Mr. Lynch’s prison

facility were suspended on October 20, 2020. (Id. at 16).

As an initial matter, “neither lack of access to a

federal law library, nor periods of time in which a prisoner

is separated from his legal documents constitute

extraordinary circumstances.” Castillo v. United States, No.

16-17028-E, 2017 WL 5591797, at *3 (11th Cir. May 4, 2017);

see also Holland v. Florida, 560 U.S. 631, 649 (2010) (stating

that lack of access to a federal law library is not an

“extraordinary circumstance” justifying equitable tolling);

Dodd v. United States, 365 F.3d 1273, 1283–84 (11th Cir. 2004)

(“[L]ockdowns and periods in which a prisoner is separated

from his legal papers are not ‘extraordinary circumstances’

in which equitable tolling is appropriate.”); Phillips v.

United States, No. 8:18-cr-91-JDW-AAS, 2021 WL 679259, at *3

(M.D. Fla. Feb. 22, 2021), certificate of appealability

denied, No. 21-11895-J, 2021 WL 7448601 (11th Cir. Nov. 4,

2021), cert. denied, 212 L. Ed. 2d 591, 142 S. Ct. 1691 (2022)

(finding insufficient to justify equitable tolling

petitioner’s allegations that “prisoners are not only denied

access to legal materials, they have been, and are, denied

unfettered access to writing instruments, copying

capabilities, and postage stamps”).

Further, to the extent Mr. Lynch alleges that the

lockdowns at the prison facility prevented him from obtaining

the necessary materials to prepare his 2255 motion – stamps,

pen, and the standard form – he has not indicated what steps

he took to exercise diligence. See George v. Lamas, No. 1:11-

CV-01462, 2012 WL 4506077, at *5 (M.D. Pa. Oct. 2, 2012)

(finding petitioner’s lack of access to habeas forms

justified equitable tolling [after the denial of his petition

for allowance of appeal] where “he wrote to the Clerk of Court

to request habeas forms approximately one week later, but the

Clerk’s Office did not send the forms until [after the filing

deadline]”); Bonilla v. Ricks, No. 00CIV.7925(LAP)(AJP), 2001

WL 253605, at *2 (S.D.N.Y. Mar. 14, 2001) (declining to find

equitable tolling applied in a 18 U.S.C. § 2244 case during

the period of time it took petitioner to receive habeas forms

from the Clerk’s office).

Specifically, Mr. Lynch has not indicated whether, at

any point, he requested such materials from the prison

facility. Nor has he explained why he did not request a copy

of the form from the Clerk’s office, given that he filed a

motion with this Court on March 5, 2021, in his criminal case.

(Crim. Doc. # 157). And as for the commissary materials, a

May 25, 2021, memorandum from the prison warden explaining

that disruptive conduct would result in a restriction of

commissary spending limit to $50 per week suggests that at

some point, the suspension of commissary was lifted. (Doc. #

10 at 26). Mr. Lynch does not state when the suspension of

commissary was lifted, nor why he was unable to obtain

supplies after that point.

In short, Mr. Lynch has not demonstrated that he

diligently pursued his rights. The Court thus finds that

equitable tolling does not apply. Mr. Lynch’s motion is thus

due to be dismissed as untimely.

C. Merits

Alternatively, even if Mr. Lynch’s motion were timely,

he cannot prevail on the merits of his claims. Mr. Lynch

asserts two grounds for relief, both based on ineffective

assistance of counsel. (Civ. Doc. # 1 at 4–5). In ground one,

Mr. Lynch alleges his trial counsel was deficient for failing

to locate and present the testimony of Mr. Lynch’s victims.

(Id. at 13). In ground two, Mr. Lynch alleges his trial

counsel was deficient for failing to hire an independent

translator. (Id. at 14).

Mr. Lynch bears the burden of proving that he is entitled

to relief under Section 2255. See Rivers v. United States,

777 F.3d 1306, 1316 (11th Cir. 2015) (“[W]e note that Rivers

bears the burden to prove the claims in his [Section] 2255

motion.”). The Court will address each of Mr. Lynch’s

arguments in turn.

1. Ground One – Victim Testimony

Mr. Lynch contends that his trial counsel was

ineffective because he failed to locate and present the

testimony of the subjects of the videos forming the basis of

Counts One through Five and Seven though Nine. (Civ. Doc. #

1 at 4, 13). According to Mr. Lynch, he repeatedly informed

his trial counsel that Liza, Erica, and Rica were over

eighteen years old, and he provided his trial counsel with

the names and contact information to locate them in the

Philippines. (Id. at 13). Had trial counsel located those

individuals, Mr. Lynch argues, they would have testified that

they were over the age of eighteen at the time the videos and

photos were taken. (Id.).

To prevail on a claim of ineffective assistance of

counsel, a petitioner must show that (1) his counsel’s

performance was deficient and (2) the deficient performance

prejudiced his defense. Strickland, 466 U.S. 668, 687 (1984).

To establish deficient performance, Mr. Lynch must

demonstrate by a preponderance of the evidence “that

particular and identified acts or omissions of counsel were

outside the wide range of professionally competent

assistance.” Chandler v. United States, 218 F.3d 1305, 1314

(11th Cir. 2000) (citations omitted). In other words, Mr.

Lynch must show that “no competent counsel would have taken

the action that [his] counsel did take.” Id. at 1315. In

deciding whether an attorney’s performance was deficient,

courts are “highly deferential” and “indulge [the] strong

presumption that counsel’s performance was reasonable and

that counsel made all significant decisions in the exercise

of reasonable professional judgment.” Id. at 1314 (internal

quotation marks omitted).

Here, Mr. Lynch has not established that his trial

counsel was deficient under Strickland. See Strickland, 466

U.S. at 697 (“[T]here is no reason for a court deciding an

ineffective assistance claim . . . to address both components

of the inquiry if the defendant makes an insufficient showing

on one.”). “[T]he presentation of testimonial evidence is a

matter of trial strategy[.]” Buckelew v. United States, 575

F.2d 515, 521 (5th Cir. 1978). “Which witnesses, if any, to

call, and when to call them, is the epitome of a strategic

decision[.]” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.

1995).

At trial, Mr. Lynch’s counsel did not present testimony

from Mr. Lynch’s alleged victims. Rather, counsel focused on

presenting expert testimony regarding the victims’ ages. Mr.

Lynch has not shown that no reasonable attorney would decline

to present the testimony of the victims in the case,

especially given the nature of the charges against Mr. Lynch.

Indeed, “allegations of what a witness would have testified

are largely speculative.” Buckelew, 575 F.2d at 521. Mr. Lynch

provides no support for his contention that Liza, Erica, and

Rica would have testified that they were over the age of

eighteen when the photos and videos were created. See United

States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991)

(“[E]vidence about the testimony of a putative witness must

generally be presented in the form of actual testimony by the

witness or on affidavit. A defendant cannot simply state that

the testimony would have been favorable; self-serving

speculation will not sustain an ineffective assistance

claim.”); see also Streeter v. United States, 335 F. App’x

859, 864 (11th Cir. 2009) (holding that the district court

did not err in denying claim for ineffective assistance of

counsel when movant did not provide an affidavit setting forth

the testimony of the potential witness).

Because Mr. Lynch has not presented evidence

demonstrating that the testimony of his victims would have

been favorable to his defense, he has not shown that trial

counsel’s performance “fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688.

2. Ground Two – Translator

Mr. Lynch also contends his trial counsel was

ineffective because he did not hire an independent

translator. (Civ. Doc. # 1 at 5, 14). At trial, the Government

provided a translation from Tagalog to English of portions of

a video where Mr. Lynch engaged in sexual activity with Erica.

(Id. at 14; Crim. Doc. # 149 at 201:16–20). At one point in

that video, another individual states that Erica is thirteen

years old. (Crim. Doc. # 149 at 205:20–206:1). However,

according to Mr. Lynch, the translation was inaccurate

because the individual in the video was speaking Kapampangan,

not Tagalog. (Doc. # 1 at 14). Mr. Lynch asserts that he

alerted trial counsel to the mistranslation but that his

counsel did not hire an independent translator. (Id.). Mr.

Lynch maintains that a correct translation would establish

that the individual in the video did not state she was

thirteen years old. (Id.). Even if the Court assumes such

performance was deficient, this claim still fails regarding

the prejudice prong.

To satisfy Strickland’s second prong — prejudice — Mr.

Lynch must show that “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S.

at 694. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. “[I]f a claim

fails to satisfy the prejudice component, the court need not

make a ruling on the performance component.” Ortiz v. United

States, No. 8:16-cv-1533-VMC-JSS, 2017 WL 6021645, at *2

(M.D. Fla. Jan. 11, 2017).

Here, Mr. Lynch cannot show that he was prejudiced by

any failure to correct the alleged mistranslations because

the critical portion of the exchange – where Erica’s age was

stated – occurred in English. (Crim. Doc. # 149 at 205:23–

206:1). Thus, even assuming that Mr. Lynch is correct that

at certain points throughout the video, the individuals spoke

Kapampangan, not Tagalog, no prejudice resulted from the

alleged mistranslations.

III. Certificate of Appealability and Leave to Appeal In

Forma Pauperis Denied

The Court declines to issue a certificate of

appealability because Mr. Lynch has failed to make a

substantial showing of the denial of a constitutional right

as required by 28 U.S.C. § 2253(c) (2). Nor will the Court

authorize Mr. Lynch to proceed on appeal in forma pauperis

because such an appeal would not be taken in good faith. See

28 U.S.C. § 1915(a) (3). Mr. Lynch shall be required to pay

the full amount of the appellate filing fee pursuant to

Section 1915(b) (1) and (2).

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

David Paul Lynch’s pro se 28 U.S.C. § 2255 Motion to

Vacate, Set Aside, or Correct Sentence (Civ. Doc. # 1; Crim.

Doc. # 159) is DENIED. The Clerk is directed to enter judgment

for the United States of America and to close this case.

DONE and ORDERED in Chambers in Tampa, Florida, this 3rd

day of August, 2023.

lagi In. Mumenby Cnn

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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