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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Michael Huntoon,

Petitioner,

v. 

United States of America,

Respondent.

No. CV-21-00094-TUC-DCB

No. CR-16-00046-TUC-DCB

ORDER 

Pending before this Court is Petitioner's "Motion to Vacate Sentence or Correct 

Sentence," pursuant to 28 U.S.C. § 2255. ((Doc. 1 (Petition) in CV 21-94 TUC DCB); Doc. 

188 (CR 16-46 TUC DCB)). The Court denies the motion and dismisses this action.

The Petitioner argues that his sentence is unconstitutional because the Court erred 

in failing to suppress evidence obtained from an illegal search of Defendant’s laptop; erred 

in admitting evidence under Rules 414 (similar crimes in child-molestation cases) and 404b

(other crimes, wrongs, and acts); erred in denying Defendant’s Motion for Disclosure 

related to Torrential Downpour software and training; abused its discretion in failing to 

grant a mistrial, and that there was cumulative error.

In the screening Order, the Court summarized the Petitioner’s claims as follows: 

Count 1, ineffective assistance of counsel at trial; Count 2, denial of due process right to a 

fair trial because the “404b cautionary instruction was “woefully inadequate”; Count 3, 

Sixth Amendment speedy trial violation by the Government for “unduly delaying the 

prosecution of his case”; Count 4, denial of due process right to a fair trial due to the 

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“admission and playing of Exhibit 20A, a redacted recorded jailhouse call between 

Defendant and his wife; Count 5, Fourth Amendment violation because probable cause to 

issue the State search warrant was founded on false material statements, therefore, the 

search of the laptop was presumptively unreasonable; Count 6, Fifth and Fourteenth 

Amendment due process violations because the State, without a court order, released the 

laptop to the Government and it was searched without a warrant; Count 7, factual 

innocence, and Count 8, ineffective assistance of counsel on appeal. (Order (Doc. 3) at 2-

3.)

For the reasons explained below, the Court denies these claims because they are 

procedurally barred and entirely without merit.

A. Conviction and Sentence

The Petitioner Defendant was charged with distributing child pornography (Count 

1); knowing access of child pornography (Count 2), and possession of child pornography

(Count 3). He was convicted by a jury of distributing and possessing child pornography. 

On July 24, 2018, the Court sentenced the Defendant to concurrent sentences of 240 

months on Counts 1 and 3, to run concurrent with the sentence to be imposed in a pending 

state case. The Court sentenced Defendant to a lifetime of supervised release. On January 

9, 2019, the Pinal County Superior Court imposed a 280-year sentence based on state 

convictions for 10 counts of sexual exploitation with a minor. He is currently in Arizona 

state custody, serving the 280-year sentence. 

The Defendant appealed his convictions and sentences. On December 16, 2019, the 

Ninth Circuit affirmed both. On March 23, 2020, the Supreme Court denied his petition for 

certiorari. The Petitioner filed the habeas Petition, pursuant to 28 U.S.C. § 2255, on March 

4, 2021.

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B. 28 U.S.C. § 2255: Motion to Vacate or Correct Sentence

Title 28 of the United States Code, Section 2255 provides for collateral review of 

Petitioner's conviction and sentence as follows: “A prisoner in custody under sentence of 

a court established by Act of Congress claiming the right to be released upon the ground 

that the sentence was imposed in violation of the Constitution or law of the United States, 

or that the court was without jurisdiction to impose such sentence, or that the sentence was 

in excess of the maximum authorized by law, or is otherwise subject to collateral attack, 

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

sentence.” 28 U.S.C. § 2255.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) instituted a 

one-year limitations period for collateral attacks by federal and state prisoners. 28 U.S.C. 

§ 2255(f). As noted by the Government, the Petition is timely. An evidentiary hearing on 

prisoner's Motion to Vacate Sentence is mandatory if the record does not affirmatively 

manifest factual or legal invalidity of the prisoner's claims. United States v. Popoola, 881 

F.2d 811, 812 (9th Cir. 1989). The Court may, however, summarily dismiss the Petition 

without holding a hearing because the Petitioner fails to allege facts which, if true, would 

entitle him to relief, and the Petition, files and record of the case conclusively show that he 

is entitled to no relief. United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004).

Section 2255 was not intended to give prisoners another appeal; it may not be used 

to overturn their convictions on grounds which could have been raised on direct appeal. 

United States v. Dunham, 767 F.2d 1395, 1396 (9th Cir. 1985). Therefore, the Petitioner 

may not relitigate in his 2255 Petition an issue he unsuccessfully raised on appeal. United 

States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985). This forecloses review pursuant to 28 

U.S.C. § 2255 of the claims raised in Counts 2, 5 and 6. On direct appeal, the Defendant 

challenged the legitimacy of the warrant and the admission under Rule 414 of the prior 

child molestation conviction and admission of evidence under Rule 404b of prior charges 

of possession of child pornography. He lost on both arguments. The appellate court also 

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rejected his argument challenging the sufficiency of the Court’s 404b cautionary 

instruction. United States v. Huntoon, 796 Fed. Appx. 362 (9th Cir. 2019). Procedurally, 

these claims cannot be relitigated on habeas review.

The remainder of the claims raised in Counts 2 through 7 are procedurally barred

because they could have been raised at trial or on direct appeal from the conviction, but 

were not raised. They cannot be brought in a § 2255 proceeding unless the defendant can

show cause for the procedural default and prejudice arising from the failure to raise them. 

United States v. Frady, 456 U.S. 152, 167-69 (1982); McCleskey v. Zant, 499 U.S. 467, 

493-495 (1991); Parks v. United States, 832F.2d 1244, 1245-46 (11th Cir. 1987). "[A] 

procedural default of even a constitutional issue will bar review under § 2255, unless the 

defendant can meet the cause and prejudice test." Campino v. United States, 968 F.2d 187, 

189-90 (2d Cir. 1992). Where there is no showing of cause and prejudice pertaining to the 

failure to raise issues on direct appeal that are raised for the first time in a § 2255 motion, 

summary dismissal of those claims is warranted. See Parks, 832 F.2d at 1246; Garland v. 

United States, 837 F.2d 1563, 1565 n.4 (11th Cir. 1988).

“Cause” under the cause and prejudice test must be something that cannot be fairly 

attributed to the Petitioner, something external to the Petitioner. Coleman v. Thompson, 

501 U.S. 722, 753 (1991) (emphasis in original). Examples of external factors that 

constitute cause, include "interference by officials," or "a showing that the factual or legal 

basis for a claim was not reasonably available to counsel." Murray v. Carrier, 477 U.S. 

478, 488 (1986). If there is no showing of cause for the failure to raise the claims, the 

Court need not consider whether the petitioner was prejudiced by the procedural default. 

Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993).

To establish “prejudice,” a petitioner must demonstrate prejudice so substantial that 

it undermines the integrity of the entire proceeding. Frady, 456 U.S. at 170; Campino, 968 

F.2d at 188-91. Here, there is no showing of cause and no need to determine whether the 

Petitioner was prejudiced by the alleged errors. Nevertheless, the Court finds no prejudice 

exists because the claims of error are substantively without merit. The Court remembers 

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this case and the trial very well, and based on that record, the claims of error, singularly or 

in combination, did not prejudice the Defendant because the evidence supporting the 

conviction was overwhelming. It is accurately represented by the Government’s statement 

of facts in its Response (Doc. 14) at 3-14.)

As noted by the Government, a Petition may be appropriate where petitioner argues 

he is actually innocent. (Response (Doc. 14) (citing Bousley v. United States, 523 U.S. 614, 

622 (1998) “‘To establish actual innocence, petitioner must demonstrate that, in light of all 

the evidence, it is more likely than not that no reasonable juror would have convicted him.’” 

Id. (citing Bousley, 523 U.S. at 623 (actual innocence means factually innocent, not legal 

insufficiency)). The Petitioner makes an assertion of actual innocence in Count 7, but fails 

to present any argument supporting it. Given the record of conviction, no such argument 

could be made. 

The Petition is procedurally barred for Counts 2 through 7. The only claims entitled 

to habeas review are Counts 1 and 8, which are both ineffective assistance of counsel 

claims. They fail, substantively.

Count 1 alleges ineffective assistance of trial counsel, and Count 8 alleges 

ineffective assistance of appellate counsel. In this case, trial counsel represented the 

Defendant on appeal. 

The allegations of ineffectiveness at trial are that counsel did no request a 404(b) 

cautionary instruction; did not present any evidence to support the motion to suppress, and 

failed to raise a Speedy Trial argument. The charge that he had no counsel to consult with 

regarding a plea offer relates to the state proceeding and is not cognizable against his 

attorney representing him in this case.

At trial, Defendant’s attorney addressed the cautionary instruction before it was 

given (Resp. (Doc. 14) at 27 (citing TR 4/18/18 at 4-12); she urged the Court to preclude 

other acts evidence entirely, id. (citing Huntoon, 796 F.Appx. at 364-65); she argued for 

suppression based on challenges to the warrant, id. (citing Huntoon, 796 F.Appx. at 363-

64), and she asked for a Franks hearing, id. The Court granted the continuance of the trial 

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from March to April, 2018, as requested by the Defendant, because it denied the motion to 

preclude evidence of pornographic computer files and the jailhouse telephone calls by the 

Defendant asking his wife to accept responsibility for the pornography found on his laptop. 

Defendant had filed a motion to preclude the Lenovo tower evidence. “‘The Court 

continued the trial date to Tuesday, April 17, 2018, to allow the Defendant time to have his 

expert examine the laptop and to afford him sufficient time to supplement his Motion to 

Suppress with any relevant evidence.’” Id. at 20 (citing Order (Doc. 142)). 

On appeal, Defendant’s attorney raised the arguments challenging the warrant 

which supported arguments to suppress evidence; argued the Defendant should have been 

given a Franks hearing, and she challenged the Court’s cautionary instruction. These 

arguments were rejected on the merits. The Defendant argues that because his appellate 

counsel was his trial attorney, she was not positioned to argue ineffective assistance of trial 

counsel, and she failed to raise the arguments of error, he makes now—which are those the 

Court has determined to be procedurally barred. 

Like the procedural default test, which failed due to a lack of prejudice, the 

ineffective assistance of counsel claims, likewise, fail. To establish ineffective assistance 

of counsel, Petitioner must show the attorney’s performance fell below prevailing norms, 

which prejudiced the Petitioner. Strickland v. Washington, 466 U.S. 666, 687-88 (1984).

To show prejudice, “[t]he defendant must show that there is a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Id. at 694. There exists a strong presumption that counsel’s conduct falls within 

the wide range of reasonable professional assistance, id. at 689, and the Court must not 

second-guess counsel’s decisions nor apply twenty-twenty vision in hindsight. Campbell 

v. Wood, 18 F.3d 662, 673 (9th Cir. 1994). A fair assessment of attorney performance 

requires every effort to be made to eliminate the distorting effects of hindsight, to 

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate counsel’s 

conduct from her perspective at the time. Id.; Strickland, 466 U.S. at 689.

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A review of the record coincides with this Court’s recall of this case. The Defendant 

was represented by counsel who had extensive criminal experience, who reached 

reasonable decisions based on the facts in this case. The record included strong evidence 

of guilt, especially considering the appellate court’s affirmation of this Court’s rulings 

denying suppression of the computer evidence and admission of the Rule 414 and 404b 

evidence. The Petitioner cannot show “that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different.” 

Supra above.

Accordingly,

IT IS ORDERED that Petitioner's "Motion to Vacate Sentence or Correct Sentence 

(Doc. 1," pursuant to 28 U.S.C. § 2255, filed in CV 21-94 TUC DCB and (Doc. 188) filed 

in CR 16-46-TUC DCB is DENIED.

IT IS FURTHER ORDERED that Civil case number CV 21-94 TUC DCB is 

DISMISSED with prejudice.

IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment 

accordingly.

IT IS FURTHER ORDERED, pursuant to Rule 11(a) of the Rules Governing 

Section 2255 Cases, in the event Movant files an appeal, the Court declines to issue a 

certificate of appealability because reasonable jurists would not find the Court’s assessment 

of the constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 

(2000).

Dated this 9th day of February, 2022.

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