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United States v. Hopson

United States District Court, D. Colorado

October 11, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
GREGORY L. HOPSON, Defendant/Movant.

          ORDER

          LEWIS T. BABCOCK, JUDGE

         This matter is before me on a Motion Under 28 U.S.C. §2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody filed pro se by Defendant-Movant, Gregory L. Hopson. [Doc #188] The Government has filed a response to this motion [Doc #194], and Mr. Hopson has filed a reply. [Doc #197] After consideration of the pleadings and attachments filed, I DENY Mr. Hopson's §2255 motion for the reasons set forth below.

         I. Background

         Special Agents from Immigration and Customs Enforcement sought and obtained a warrant to search a home located in Westminster, Colorado. The basis for the search warrant was precipitated when a Special Agent in Virginia, as part of a separate investigation, identified several email addresses that had sent or received images of child pornography. One such account, a yahoo email address known as “anniegirl11@yahoo.com, ” exchanged emails including child pornography in February and March of 2010.

         Further investigation revealed that someone logged into the anniegirl account on March 2 and 11, 2010, using the same two IP addresses, and that the IP addresses were owned by QWest Communications. A subpoena was issued to QWest who responded that the IP addresses at the relevant times and dates were assigned to a subscriber named “Greg Hopsin” at the Westminster address. A subsequent law enforcement database search identified Mr. Hopson as a registered sex offender who pled guilty to sexual assault on a child while in a position of trust in February 2000. His probation officer indicated that Mr. Hopson was permitted to visit his “girlfriend or wife” at the Westminster address as long as their five-year old daughter was not present during the visit. Agents conducting surveillance subsequently observed a man who appeared to be Mr. Hopson enter the residence at the Westminster address, followed several hours later by an adult woman and a young girl.

         The ensuing search of the Westminster address revealed a computer and several CDs containing thousands of images of child pornography. Mr. Hopson was charged with sixteen counts of production, transportation, receipt, and possession of child pornography on October 24, 2012. [Doc #1] Mr. Hopson moved this court, via counsel, for an order suppressing the evidence seized. I denied his motion to suppress on May 29, 2014. [Doc # 78] Mr. Hopson then pled guilty to two counts of transportation of child pornography and one count of possession, in violation of 18 U.S.C. §2252A(a)(1)&(b)(1) and §2252(a)(5)(B)&(b)(1), while preserving his right to appeal the suppression ruling. I subsequently sentenced him to 420 months of imprisonment.

         Mr. Hopson, acting pro se, appealed the denial of his motion to suppress to the Court of Appeals. The Tenth Circuit affirmed, holding that: (1) facts contained in the “hypothetical corrected” affidavit in support of the search warrant were sufficient to establish probable cause, and (2) the defendant's prior conviction for sexual assault on a child while in a position of trust was properly considered as part of the totality of the circumstances establishing probable cause. United States v. Hopson, 643 F. App'x 694, 697-98 (10th Cir. 2016)(unpublished).

         Mr. Hopson now files this motion seeking post-conviction relief pursuant to 28 U.S.C. §2255, which provides that a “prisoner in custody under sentence of a court . . . claiming the right to be released upon the ground that the sentence . . . [is] subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” Mr. Hopson's §2255 motion raises four claims: 1) his trial counsel “failed to correctly litigate Fourth Amendment issues;” 2) “[t]he appellate court's affirmation of probable cause is based on an unreasonable determination of facts in light of the evidence presented;” 3) “[t]he appellate court create[d] hypothetical facts” to reject his challenge to the search warrant affidavit; and 4) the government failed to disclose exculpatory evidence (related to paragraph 61 of the search warrant affidavit) in violation of the ruling in Brady v. Maryland, 373 U.S. 83 (1963). As a result, Mr. Hopson seeks the following post-conviction relief: 1) that his sentence be vacated; 2) reconsideration of the motion to suppress; 3) “the appellate opinion be voided and a new appellate review be undertaken by a different panel applying the correct facts of the case;” 4) “the case be returned to the district court where the government's admission reg[ar]ding paragraph 61 can be presented and argued;” and 5) “any other relief to which he may be entitled.”

         II. Motion to Suppress Ruling

          When initially challenging the search warrant at issue, Mr. Hopson argued that the affidavit submitted in support of the search warrant application contained a false statement in the first sentence of paragraph 60 and a conclusory misstatement in paragraph 78(G), and it omitted critical information that, in turn, vitiated a nexus between the child pornography activity by the user of the anniegirl email address and the Westminster residence where the search warrant was executed.

         In reviewing the search warrant affidavit, I struck a statement - in the first sentence of paragraph 60 - which indicated that the report/log provided by Yahoo (documenting the internet activity associated the anniegirl account) indicated that an email was sent on March 11, 2010 at 04:41:08 GMT, and another sent on March 2, 2010 at 20:53:33 GMT. The Government conceded that the Yahoo log did not indicate that emails were sent, but rather that the user of the email account anniegirl11@yahoo.com merely logged on to the account on those dates and times. In addition, I struck a conclusory misstatement at paragraph 78(G). Finally, I ruled that omitted information about the anniegirl account user's extensive use of other IP addresses, that were not associated with the Westminster residence address, was not material to the probable cause determination. As such, I concluded that even when the challenged assertions in the first sentence of paragraph 60 and the entirety of paragraph 78G were stricken, and the alleged omitted information about the anniegirl account's extensive use of other IP addresses was considered, there was still ample probable cause supporting the issuance of the warrant. [Doc #78]

         III. Standard of Review

          I construe this §2255 motion liberally because Mr. Hopson is a pro se litigant, but also note that the Court does not act as a pro se litigant's advocate. Haines v. Kerner, 404 U.S. 519, 520-2, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         IV. Ineffective ...


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