Coopman v. United States

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

)

UNITED STATES OF AMERICA

)

v.

) Case No. 2:07-CR-196-JD-PRC

) 2:16-CV-539-JD

BRAD COOPMAN )

OPINION AND ORDER

This matter is before the Court on Petitioner Brad Coopman’s Motion under 28 U.S.C. §

2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [DE 68]. Based

upon a recent change to U.S.S.G. § 2G2.2(b)(3)(F), the Petitioner argues that he was improperly

sentenced because he did not knowingly distribute child pornography. In relevant part, the

Government argues that the instant petition is untimely. For the reasons stated below, the Court

agrees that the Petitioner’s request is untimely. See 28 U.S.C. § 2255(f)(1). Therefore, the

Petitioner’s Motion to Vacate [DE 68] is denied.

I. BACKGROUND

On April 2, 2008, the Petitioner pleaded guilty to knowingly receiving child pornography

in violation of 18 U.S.C. § 2252(a)(2). See DE 12. On August 18, 2008, the probation

department prepared a presentence investigation report (PSR). Pursuant to U.S.S.G. §

2G2.2(b)(3)(F), which provided for a two-level enhancement for distribution of child

pornography, the Petitioner’s base offense level was increased because he “used a file sharing

program, which allowed others to obtain videos.” PSR ¶ 22. During this time, U.S.S.G. §

2G2.2(b)(3)(F) did not incorporate a mens rea requirement. See U.S.S.G. § 2G2.2(b)(3)(F) (eff.

Nov. 1, 2007). The Petitioner did not object to the use of U.S.S.G. § 2G2.2(b)(3)(F). See PSR p.

12.

On April 23, 2009, the Court sentenced the Petitioner to 151 months of imprisonment.

See DE 44. The Petitioner appealed, but he did not contest the use of U.S.S.G. § 2G2.2(b)(3)(F).

On April 19, 2010, the Seventh Circuit affirmed the Petitioner’s conviction. United States v.

Coopman, 602 F.3d 814, 820 (7th Cir. 2010). On October 4, 2010, the Supreme Court denied the

Petitioner’s writ of certiorari. Coopman v. United States, 562 U.S. 923 (2010).

On December 28, 2016, the Petitioner filed the instant Motion to Vacate under 28 U.S.C.

§ 2255. The Petitioner notes that U.S.S.G. § 2G2.2(b)(3)(F) was recently “clarified and amended

to say that an enhancement should be given if the defendant ‘Knowingly Distributed” to another

person . . . .” DE 68, p. 4. The Petitioner argues that “[t]he reason given for the distribution

enhancement . . . was the evidence of the use of a peer to peer file sharing program. While I do

not contest this fact, according to the new amendment, use of a P2P does not necessarily qualify

as grounds for the distribution enhancement. The defendant has to have ‘knowingly’ distributed

and I never knowingly shared, forwarded, or gave anything to anyone.” Id. at 10. In response, the

Government argues that (1) the Petitioner’s claim is untimely, (2) the amendment to U.S.S.G. §

2G2.2(b)(3)(F) is not retroactive, and (3) a subsequent change to the sentencing guidelines is not

cognizable in a § 2255 proceeding. DE 71, p. 5.

II. STANDARD OF REVIEW

28 U.S.C. § 2255(a) provides that a federal prisoner “claiming the right to be released

upon the ground that the sentence was imposed in violation of the Constitution or laws of the

United States . . . may move the court which imposed the sentence to vacate, set aside or correct

the sentence.” 28 U.S.C. § 2255(a). The Seventh Circuit has recognized that § 2255 relief is

appropriate only for “an error of law that is jurisdictional, constitutional, or constitutes a

fundamental defect which inherently results in a complete miscarriage of justice.” Harris v.

2

United States, 366 F.3d 593, 594 (7th Cir. 2004). Relief under § 2255 is extraordinary because it

seeks to reopen the criminal process to a person who has already had an opportunity of full

process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United

States, 467 F.3d 1063, 1068 (7th Cir. 2006)).

III. DISCUSSION

The Petitioner argues that he is entitled to relief due to the recent modification to

U.S.S.G. § 2G2.2(b)(3)(F). In relevant part, the Government argues that the Petitioner’s claim is

untimely because his § 2255 motion was filed more than a year after his conviction became final.

The Petitioner argues that the statute of limitations should not apply because “[a]t the time of my

conviction and subsequent sentencing, the amendments that were enacted [on] November 1,

2016, were not available.” DE 68, p. 12. For the reasons stated below, the Court agrees that the

Petitioner’s request is untimely. See 28 U.S.C. § 2255(f)(1). Therefore, the Petitioner’s Motion to

Vacate [DE 68] is denied.

“A 1-year period of limitation shall apply to a motion under this section.” 28 U.S.C. §

2255(f). As relevant to this case, the statute of limitations began to run once the Petitioner’s

conviction became final. 28 U.S.C. § 2255(f)(1); Boulb v. United States, 818 F.3d 334, 339 (7th

Cir. 2016). A conviction is final when the Supreme Court “affirms a conviction on the merits on

direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari

petition expires.” Clay v. United States, 537 U.S. 522, 527 (2003). Nevertheless, the statute of

limitations may be equitably tolled. Clarke v. United States, 703 F.3d 1098, 1101 (7th Cir. 2013).

“A habeas petitioner is entitled to equitable tolling only if he shows ‘(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and

prevented timely filing.’” Carpenter v. Douma, 840 F.3d 867, 870 (7th Cir. 2016) (quoting

3

Holland v. Florida, 560 U.S. 631, 649 (2010)). “It is the petitioner’s burden to establish both of

these points.” Socha v. Boughton, 763 F.3d 674, 683 (7th Cir. 2014). The diligence required for

equitable tolling is reasonable diligence, not maximum feasible diligence. Holland, 560 U.S. at

653. However, conclusory allegations of diligence are insufficient. Mayberry v. Dittmann, 904

F.3d 525, 531 (7th Cir. 2018) (citing Carpenter, 840 F.3d at 870).

U.S.S.G. § 2G2.2 calculates the offense level for knowingly receiving child pornography.

At the time of his sentencing, U.S.S.G. § 2G2.2(b)(3) provided as follows:

(3) (Apply the greatest) If the offense involved:

(A) Distribution for pecuniary gain, increase by the number of levels from the

table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to

the retail value of the material, but by not less than 5 levels.

(B) Distribution for the receipt, or expectation of receipt, of a thing of value,

but not for pecuniary gain, increase by 5 levels.

(C) Distribution to a minor, increase by 5 levels.

(D) Distribution to a minor that was intended to persuade, induce, entice, or

coerce the minor to engage in any illegal activity, other than illegal activity

covered under subdivision (E), increase by 6 levels.

(E) Distribution to a minor that was intended to persuade, induce, entice,

coerce, or facilitate the travel of, the minor to engage in prohibited sexual

conduct, increase by 7 levels.

(F) Distribution other than distribution described in subdivisions (A) through

(E), increase by 2 levels.

U.S.S.G. § 2G2.2(b)(3) (eff. Nov. 1, 2008) (emphasis added).

On November 1, 2016, U.S.S.G. § 2G2.2(b)(3)(F) was modified as follows: “If the

defendant knowingly engaged in distribution, other than distribution described in subdivisions

(A) through (E), increase by 2 levels.” U.S.S.G. § 2G2.2(b)(3)(F) (eff. Nov. 1, 2016) (emphasis

4

added). The United States Sentencing Commission’s reasoning for this modification is seen

below:

The circuits have reached different conclusions regarding whether application of

the 2-level distribution enhancement at §2G2.2(b)(3)(F) requires a mental state (mens rea),

particularly in cases involving use of a file-sharing program or network. The Fifth, Tenth,

and Eleventh Circuits have held that the 2-level distribution enhancement applies if the

defendant used a file-sharing program, regardless of whether the defendant did so

purposefully, knowingly, or negligently. See, e.g., United States v. Baker, 742 F.3d 618,

621 (5th Cir. 2014); United States v. Ray, 704 F.3d 1307, 1312 (10th Cir. 2013); United

States v. Creel, 783 F.3d 1357, 1360 (11th Cir. 2015). The Second, Fourth, and Seventh

Circuits have held that the 2-level distribution enhancement requires a showing that the

defendant knew of the file-sharing properties of the program. See, e.g., United States v.

Baldwin, 743 F.3d 357, 361 (2d Cir. 2015) (requiring knowledge); United States v.

Robinson, 714 F.3d 466, 468 (7th Cir. 2013) (knowledge); United States v. Layton, 564

F.3d 330, 335 (4th Cir. 2009) (knowledge or reckless disregard). The Eighth Circuit has

held that knowledge is required, but knowledge may be inferred from the fact that a file-

sharing program was used, absent “concrete evidence” of ignorance. See United States v.

Dodd, 598 F.3d 449, 452 (8th Cir. 2010). The Sixth Circuit has held that there is a

“presumption” that “users of file-sharing software understand others can access their files.”

United States v. Conner, 521 Fed. App’x 493, 499 (6th Cir. 2013); see also United States

v. Abbring, 788 F.3d 565, 567 (6th Cir. 2015) (“the whole point of a file-sharing program

is to share, sharing creates a transfer, and transferring equals distribution”).

The amendment generally adopts the approach of the Second, Fourth, and Seventh

Circuits. It amends §2G2.2(b)(3)(F) to provide that the 2-level distribution enhancement

applies if “the defendant knowingly engaged in distribution.” Based on testimony, public

comment, and data analysis, the Commission determined that the 2-level distribution

enhancement is appropriate only in cases in which the defendant knowingly engaged in

distribution.

U.S.S.G., App. C, Am. 801 (eff. Nov. 1, 2016), available at https://guidelines.ussc.gov/ac/801.

Relying upon this recent modification to U.S.S.G. § 2G2.2(b)(3)(F), the Petitioner argues

that he was improperly sentenced because “[t]he reason given for the distribution enhancement . .

. was the evidence of the use of a peer to peer file sharing program. While I do not contest this

fact, according to the new amendment, use of a P2P does not necessarily qualify as grounds for

the distribution enhancement. The defendant has to have ‘knowingly’ distributed and I never

knowingly shared, forwarded, or gave anything to anyone.” DE 68, p. 10. The Government

5

argues that the Petitioner’s claim is untimely because his § 2255 motion was filed more than a

year after his conviction became final. DE 71, p. 3. The Petitioner argues that the statute of

limitations should not apply because the recent modification to U.S.S.G. § 2G2.2(b)(3)(F) was

not available at the time of his sentencing. DE 68, p. 12. However, the Petitioner’s timeliness

argument is without merit because the Seventh Circuit had previously incorporated the

“knowing” standard to U.S.S.G. § 2G2.2(b)(3)(F).

In United States v. Carani, 492 F.3d 867, 869 (7th Cir. 2007), Fabio Carani was

convicted of possession of child pornography. Carani used Kazaa, a peer-to-peer file sharing

program, to download the child pornography. Id. at 869–70. Based upon his user settings, other

Kazaa users were able to download child pornography from Carani’s computer. Id. at 870.

Carani originally told federal agents that he was not aware that he was distributing child

pornography. Id. However, evidence presented at trial indicated that Carani may have been

aware that other people were downloading child pornography from his computer. Id. at 870–71.

At sentencing, the district court found that Carani “knowingly distributed child pornography in

that he knowingly made his child pornography on his computer available to other Kazaa users,

who downloaded it from his computer.” Id. at 872. Based upon this, the district court imposed a

two-level sentencing enhancement for distribution under U.S.S.G. § 2G2.2(b)(3)(F). Id. On

appeal, Carani argued there was insufficient evidence that he distributed child pornography. Id.

at 875. The Seventh Circuit rejected this argument and reasoned as follows:

The notion that Carani could knowingly make his child pornography available for

others to access and download without this qualifying as “distribution” does not square

with the plain meaning of the word. Indeed, this court rejected a similar argument in United

States v. Gunderson, where the defendant had programmed his computer to allow others to

access his files if they first uploaded files to his computer. 345 F.3d 471, 473 (7th Cir.

2003). Once the program was written, it required no action by Gunderson to allow others

to download his files. Id. We described the passive nature of the program as “irrelevant” to

6

whether a distribution enhancement was appropriate. Id. Such is the case here. The district

court specifically found that Carani made his child pornography videos available through

Kazaa, and that he knew other users were downloading these files from him. This finding

was not clearly erroneous.

Id. at 876 (emphasis added).

In United States v. Robinson, 714 F.3d 466, 468 (7th Cir. 2013), the defendant was

interrogated by the police for possession of child pornography. The defendant admitted to

downloading child pornography through a peer-to-peer file sharing program. Id. However, the

defendant stated that he did not know that his files could be downloaded by other individuals. Id.

The defendant was ultimately convicted of possession of child pornography. Id. at 467. At

sentencing, the district court applied U.S.S.G. § 2G2.2(b)(3)(F). Id. On appeal, the defendant

argued that the district court erred because he did not knowingly distribute child pornography. Id.

at 467–68. The Seventh Circuit emphasized that “strict liability is disfavored in the criminal

context.” Id. at 468. Further, the court reasoned that “[a] person who downloads files from a file-

sharing program might, though knowing that the downloaded files were accessible by other

subscribers to the program, not realize that this made him a ‘distributor.’” Id. at 468–69. Based

upon this, the Seventh Circuit held that a “sentencing judge must find that the defendant either

knew, or was reckless in failing to discover, that the files he was downloading could be viewed

online by other people.” Id. at 468.

As seen above, the Seventh Circuit had already incorporated a “knowing” standard to

U.S.S.G. § 2G2.2(b)(3)(F). If the Petitioner was diligently pursuing his postconviction remedies,

then he would have filed a timely postconviction petition that relied upon Carani. At the very

least, the Petitioner should have filed his petition shortly after the Seventh Circuit’s reasoning in

Robinson. Certainly, the Court is aware that the Petitioner is a pro se prisoner. However, “lack of

7

representation is not on its own sufficient to warrant equitable tolling, nor is a petitioner’s lack of

legal training. Prisoners do not have a constitutional right to the assistance of counsel in post-

conviction collateral attacks.” Socha, 763 F.3d at 685 (citing Pennsylvania v. Finley, 481 U.S.

551, 555 (1987)). Likewise, ignorance of the law is not a circumstance that justifies equitable

tolling. Taylor v. Michael, 724 F.3d 806, 811 (7th Cir. 2013).

Furthermore, the Petitioner fails to explain what efforts he took during the six-year period

between his conviction becoming final and the filing of his untimely petition. Compare

Mayberry, 904 F.3d at 531 (“Given the lack of any specific evidence as to particular hurdles

Mayberry encountered in timely pursuing his claim, it was not an abuse of the district court’s

discretion to conclude that Mayberry’s evidence of reasonable diligence lacked the specificity

necessary to entitle him to equitable tolling.”), with Socha, 763 F.3d at 687–88 (the petitioner

established reasonable diligence when he repeatedly wrote his attorney requesting access to his

file, requested help from the public defender’s office, used limited library time to work on his

petition, and contacted the court before time expired to ask for an extension). Therefore, based

upon the record as a whole, the Court finds that the Petitioner fails to demonstrate reasonable

diligence.

The Petitioner also fails to establish an extraordinary circumstance. Based upon the

information contained within the PSR, there is no indication that the Petitioner suffers from any

sort of physical or mental impairment that could explain his delay in filing. See PSR ¶¶ 48–60.

The Petitioner does not claim that his efforts were hindered by any sort of mental or physical

condition. See, e.g., Obriecht v. Foster, 727 F.3d 744, 750–51 (7th Cir. 2013). Likewise, the

Petitioner does not claim that his efforts were hindered by any other unique circumstance. Thus,

8

the Petitioner fails to demonstrate that an extraordinary circumstance prevented the timely filing

of his petition.

For the reasons stated above, the Petitioner fails to demonstrate that he diligently pursued

his claims or that an extraordinary circumstance prevented the timely filing of his petition.

Therefore, in an exercise of discretion, the Court declines to apply the doctrine of equitable

tolling. Because the Court has dismissed the instant petition on timeliness grounds, the Court

need not address the Government’s alternative arguments.

IV. CERTIFICATE OF APPEALABILITY

The Court declines to issue a certificate of appealability. A certificate of appealability

may be issued “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). The substantial showing standard is met if the

issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel,

529 U.S. 473, 484 (2000). For the reasons stated above, the Court does not believe that the

resolution of this motion is debatable or that the issues deserve encouragement to proceed

further. Nevertheless, the Court advises the Petitioner that he may request a certificate of

appealability from a circuit judge pursuant to Rule 22(b) of the Federal Rules of Appellate

Procedure. Fed. R. App. P. 22(b)(1). If the Petitioner wishes to appeal this judgment, a notice of

appeal must be filed within 60 days after the judgment is entered. Fed. R. App. P. 4(a); Guyton v.

United States, 453 F.3d 425, 427 (7th Cir. 2006).

V. CONCLUSION

For the reasons stated above, the Court DENIES Brad Coopman’s Motion under 28

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [DE

68]. The Court DENIES the issuance of a certificate of appealability. The Clerk of Court is

9

DIRECTED to enter judgment accordingly. Finally, the Clerk of Court is DIRECTED to file

Brad Coopman’s Presentence Investigation Report under seal.

SO ORDERED.

ENTERED: July 28, 2020

/s/ JON E. DEGUILIO

Chief Judge

United States District Court

10