United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION AND ORDER
MICHAEL P. MILLS, District Judge.
Robert Warren Triplett, Jr., pleaded guilty to a federal crime and was sentenced to ten years in the custody of the Bureau of Prisons. He is proceeding pro se on a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. He has also filed a motion to supplement his § 2255 motion, and a motion to amend his original pleading to include an additional claim. The government has submitted a response to Triplett's motions, and Triplett has filed responses thereto. Having considered the pleadings and the record, including the relevant parts of Triplett's underlying criminal case, along with the relevant law, the Court finds that an evidentiary hearing is unnecessary, and that Triplett's § 2255 motion, as supplemented and amended, should be denied.
Background Facts and Relevant History
On September 18, 2009, Robert Triplett reported his stepdaughter, Kaila Morris, missing. The previous evening, Kaila had been at the home of her mother, Bonnie Morris-Triplett, and stepfather, Robert Triplett, at 181 Golding Road in Columbus, Mississippi. Morris-Triplett was out of town, and Triplett was at the couple's home. Kaila had plans to go to a friend's house that evening, but she never arrived. Kaila was last seen at 181 Golding Road by Triplett.
During the investigation into Kaila's disappearance, Triplett was questioned. He stated to investigators that he washed Kaila's sheets around the time of her disappearance because she had complained that they were dirty. He also stated that he had given massages to Kaila while she was shirtless. Triplett informed authorities that he had kissed Kaila on the lips on two occasions, but that after she indicated that she did not enjoy it on the second occasion, he did not attempt to kiss her again. At some point, Triplett's criminal history was accessed, and investigators learned that Triplett had pleaded guilty to attempted aggravated assault in Jackson County, Mississippi, and that he was on probation in that case at the time of Kaila's disappearance. Investigators also learned that Triplett was involved in a criminal investigation of a rape in Louisiana, in which he was tried and convicted before the case was overturned on appeal. Later, Triplett pleaded guilty to a misdemeanor relating to that crime.
Investigators also learned that the day Kaila was last heard from, Triplett stated he had, at Kaila's request, "check[ed] some of her property" in Pickens County, Alabama. He stated that he had taken a shovel and an axe with him, and that he had gotten his four-wheeler stuck on the property. Investigators also interviewed Bonnie Morris-Triplett, who notified them that Triplett had changed the hard drive in his computer days after Kaila's disappearance.
Subsequently, a search warrant was issued for items at the Morris-Triplett residence that could lead to information about Kaila's disappearance. Among the items listed on the warrant were "electronic devices" and "electronic memory devices." Several computers were seized from the home, and a forensic examination of the computers was conducted. After a forensic examination revealed images of what the investigator believed to be child pornography, the investigator ceased his examination and called the Sheriff's Department to advise them to apply for another search warrant. A second search warrant was obtained, and over 4, 000 images of child pornography were located on the computers. Numerous images were of pre-pubescent children.
Triplett was questioned in connection with the images found on his computers, and he confessed to viewing sexually explicit photographs of young girls. In a videotape and audiotaped conversation with his son while he was in jail, Triplett apologized to his son about the pornography on his computers and informed his son that he thought that he had been able to destroy the images. Triplett was subsequently arrested, and a federal grand jury indicted him in a one-count indictment for possession of child pornography that had been shipped and transported in interstate commerce by means of computers and that were produced using materials that had been mailed, shipped, and transported in interstate and foreign commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B) and § 2256(8)(A).
Triplett subsequently filed a motion to suppress the electronic devices and digital information seized, the first search warrant, and statements he made to law enforcement, along with his post-arrest statements to his wife and son. Following a hearing and consideration of post-hearing briefs, this Court found that probable cause existed to support the first search warrant, and that there was an adequate nexus linking Kaila's disappearance to the computers described in the warrant. The Court further found that Triplett's wife gave separate, independent consent to allow law enforcement to search the home and its contents, which would have otherwise led to the discovery of the digital information. The Court granted the suppression motion as to the statements Triplett made to Bonnie Morris-Triplett, but it denied the motion as to Triplett's statements to his son and to law enforcement.
On August 27, 2010, Triplett entered a conditional plea of guilty to one count of possession of child pornography, reserving the right to appeal the Court's denial of his motion to suppress. The Court subsequently sentenced Triplett to 120 months' imprisonment, to be served consecutively to any previously imposed State or Federal sentence. Triplett filed an appeal. The Fifth Circuit affirmed this Court's decision regarding the search warrant, as well as Triplett's plea and sentence. United States v. Triplett, 684 F.3d 500 (5th Cir. 2012).
Triplett subsequently filed this § 2255 motion, and shortly thereafter, he filed a motion to supplement his § 2255 motion to include various claims that his counsel provided ineffective assistance. Later, he filed a motion to amend his petition in order to raise a claim alleging prosecutorial misconduct. Respondent objects to Triplett's attempt to amend his petition, arguing that it is untimely and unrelated to the claims raised in the initial petition. Respondent otherwise argues that Triplett's motions should be denied as without merit.
After a defendant has been convicted and exhausted his appeal rights, a court may presume that "he stands fairly and finally convicted." United States v. Frady, 456 U.S. 152, 164 (1982). A motion brought pursuant to § 2255 is a "means of collateral attack on a federal sentence." Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990) (citation omitted). There are four separate grounds upon which a federal prisoner may move to vacate, set aside, or correct a sentence under § 2255: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255. Collateral attack limits a defendant's allegations to those of "constitutional or jurisdictional magnitude." United States v. Samuels, 59 F.3d 526, 528 (5th Cir. 1995) (citation omitted). Relief under § 2255 is reserved, therefore, for violations of "constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and, would, if condoned, result in a complete miscarriage of justice." United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981).
I. Ineffective assistance of counsel
Triplett maintains that his now ex-wife, Bonnie Morris, hired attorney, Robert Laher, to represent Triplett in (1) his probation revocation in Jackson County, Mississippi; (2) his federal case in this Court; and (3) his trial in the Circuit Court of Lowndes County, Mississippi. Triplett makes numerous claims that counsel performed ineffectively in representing Triplett in these various cases. Specifically as to Triplett's federal case, Triplett maintains that Laher failed to subpoena witnesses, that he conducted an inadequate cross-examination of the government's witnesses, that he failed to submit mitigating evidence, that he failed to communicate with Triplett and seek his input, and that he rendered ineffective assistance in advising Triplett to accept a plea.
The Sixth Amendment guarantees a criminal defendant the right to the "reasonably effective" assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Whether counsel has rendered constitutionally acceptable assistance requires consideration of whether trial counsel's performance was so deficient that it cannot be said that he was functioning as "counsel" within the meaning of the Sixth Amendment, and whether the deficient performance actually prejudiced the defense. See id. at 687. Judicial scrutiny of an attorney's performance is "highly deferential, " a reviewing court indulges a "strong presumption" that counsel has rendered "reasonable professional assistance." Id. at 689.
Even if counsel committed professionally unreasonable errors, however, such "does not warrant setting aside the judgment of a criminal proceeding if the error did not prejudice the defense." Ricalday v. Procunier, 736 F.2d 203, 208 (5th Cir. 1984) (citation omitted). In order to make the requisite showing of prejudice, a defendant must show that there is a reasonable probability that, but for counsel's specified errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694 (quotation marks omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Absent an affirmative showing of prejudice, there is no merit to a claim of ineffective assistance of counsel. See, e.g., Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (noting that "[i]n the absence of a specific showing of how these alleged errors and omissions were constitutionally deficient, and how they prejudiced [the defendant's] right to a fair trial, " there is no merit to an ineffective assistance of counsel claim). The failure to prove either deficient performance by counsel or actual prejudice as a result of counsel's actions or omissions defeats a claim of ineffective assistance. Strickland, 466 U.S. at 697; Green v. Johnson, 160 F.3d 1029, 1035 (5th Cir. 1998). Moreover, unsupported allegations are insufficient to sustain a claim of ineffective assistance. See United States v. Demik, 489 F.3d 644, 646 (5th Cir. 2007) (holding that "conclusional allegations" and general claims are insufficient to establish ineffective assistance or to require an evidentiary hearing on the issue).
The Court notes that many of Triplett's arguments about counsel's performance involve his representation of Triplett at his State court trial, which occurred subsequent to this federal prosecution. Triplett's arguments regarding counsel's performance during State court proceedings, which Triplett concedes is not ...