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Supreme Court of the United States App. 1 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-30510 UNITED STATES OF AMERICA, Plaintiff-Appellee V. GARY JEFFERSON BYRD, - Defendant-Appellant - Appeal from the United States District Court for the Western District of Louisiana (Filed Jun. 8, 2018) ORDER: Gary Jefferson Byrd, federal prisoner # 07983-035, was convicted of one count of receiving child pornogra- phy and one count of possessing child pornography and was sentenced to serve 180 months in prison and a 10- year term of supervised release. Following the district court's denial of his 28 U.S.C. § 2255 motion, he moves this court for a certificate of appealability (COA) on claims related to his right to testify, actual innocence, selective prosecution, juror unanimity, ineffective as- sistance of counsel, and cumulative error. App. 2 One will receive a COA only by making "a substan- tial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473,484 (2000). One "satisfies this standard by demonstrating that ju- rists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327. Because Byrd has not made this show- ing, his COA motion is DENIED. Is! James C. Ho JAMES C. HO UNITED STATES CIRCUIT JUDGE App. 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION UNITED STATES CASE NO. OF AMERICA 6:12-CR-00274-01 VERSUS JUDGE FOOTE GARY JEFFERSON BYRD MAGISTRATE (01) JUDGE HANNA CERTIFICATE OF APPEALABILITY (Filed Sep. 18, 2017) A final order having been filed in the above- captioned habeas case, the court, considering the rec- ord in this case and the requirements of 28 U.S.C. § 2253, hereby finds that: The certificate of appealability is DE- NIED because the applicant has failed to demonstrate a substantial showing of the denial of a constitutional right. The certificate of appealability is - GRANTED for the following reasons. The applicant has made a substantial show- ing that the following issues constitute a denial of a constitutional right: THUS DONE in Chambers on this 16th day of September, 2017. Is! Elizabeth E. Foote Elizabeth E. Foote United States District Judge App. 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION UNITED STATES CRIMINAL NO. OF AMERICA 6:12-00274 CIVIL NO. 6:16-1365 VERSUS GARY JEFFERSON BYRD JUDGE FOOTE MAGISTRATE JUDGE HANNA JUDGMENT This matter was referred to United States Magis- trate Judge Patrick J. Hanna for report and recommen- dation. After an independent review of the record, and consideration of objections filed, this Court concludes that the Magistrate Judge's report and recommenda- tion is correct and adopts the findings and conclusions therein as its own. Accordingly, IT IS ORDERED, that the Motion to Vacate filed pursuant to 28 U.S.C. § 2255 by pro se petitioner, Gary Jefferson Byrd is DENIED and DISMISSED WITH PREJUDICE consistent with the report and recom- mendation. Shreveport, Louisiana, this 24th day of May 2017. Is! Elizabeth E. Foote ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA UNITED STATES OF * CRIMINAL NO. AMERICA 6:12-00274 * CIVIL NO. 6:16-1365 VERSUS JUDGE FOOTE GARY JEFFERSON BYRD * MAGISTRATE * JUDGE HANNA REPORT AND RECOMMENDATION (Filed Apr. 3, 2017) Pending before the undersigned for Report and Recommendation is the Motion to Vacate filed pursu- ant to 28 U.S.C. § 2255 by pro se petitioner, Gary Jef- ferson Byrd ("Byrd"). [rec. doe. 1131. The Government has filed an Answer, and a Memorandum in Support of its Answer [rec. doe. 1201, to which petitioner filed a Reply. [rec. doe. 1231. For the following reasons, the undersigned recom- mends that the Motion be DENIED AND DISMISSED WITH PREJUDICE. Because the undersigned is able to make this recommendation based on the record, transcripts and briefs filed by the parties, no eviden- tiary hearing is necessary' 1 No evidentiary hearing is required in a § 2255 petition where the claims made by the petitioner are either contrary to law or plainly refuted by the record. US. v. Green, 882 F.2d 999, 1008 (5th Cir. 1989). App. 7 BACKGROUND In 1992, Byrd was convicted of receiving child por- nography through the mail in violation of 18 U.S.C. § 2252(a)(2), for which he was sentenced to the statu- tory maximum of ten years imprisonment. Byrd de- fended the case arguing, in part, that the child pornography had been obtained as part of Byrd's own private investigation into a pedophile ring involving the Catholic Church, the Louisiana D.H.H.R. (which he claimed was out to get him) and various high-level gov- ernment officials .2 At trial, evidence that Byrd had mo- lested two minor boys, one of which was a foster child living with Byrd, was presented. Byrd completed his sentence and was released. See United States v. Gary Jefferson Byrd, 6:92-cr-60025 (WD. La.); see also United States v. Byrd, 31 F.3d 1329 (5th cir. 1994). On October 9, 2012, Byrd, was indicted on two child pornography counts. Count 1 charged Byrd with possession of child pornography images and movies stored on computer compact disks (CDs) and DVDs on September 20, 2012, in violation of 18 U.S.C. § 2252A(a)(5)(B). Count 2 charged Byrd with receiving child pornography beginning on February 29,2008 and continuing until April 22, 2011, in violation of 18 U.S.C. § 2252A(a)(2)(A).3 [rec. doc. 121. On December 11, 2012, 2 Byrd additionally argued that the government, by its sting operation, entrapped him into ordering the child pornography tapes. Prior to indictment, Byrd was the subject of a criminal com- plaint, alleging the same substantive counts. [rec. doe. 11. um a Superceding Indictment was returned, charging the same two substantive counts. [rec. doc. 241. The indictment stemmed from an investigation conducted by the U.S. Postal Inspector of a Canadian company, Azov Films, which sold films over the inter- net. An undercover inspector made purchases from Azov which were shipped from Buffalo, New York to Nashville, Tennessee. Based on the content of these films, the postal inspector obtained a warrant author- izing the search of Azov's Toronto, Canada offices. Byrd's name was found on customer invoices obtained from the search. These invoices reflected that Byrd had ordered materials from Azov. Azov utilized a "dis- claimer" stating its films were "legal" in the United States. This information was forwarded to the Baton Rouge Field Office. Byrd ordered CDs titled "Viadik Anthology" and "Cutting Room Floor", containing video of young, naked boys, engaging in a number of activities, including the pushing of cup cakes between their buttocks toward the anus. The local postal inspectors obtained a warrant from Magistrate Judge Hill to search Byrd's residence. During the search, the government seized numerous CDs and still images which form the basis of the in- dictment. Following a trial by jury, Byrd was convicted of both counts of the superceding indictment. On April 11, 2014, Byrd was sentenced to 168 months imprison- ment on Count 1 and 180 months imprisonment on Count 2, the sentences to run consecutively. we69 M The Fifth Circuit affirmed Byrd's convictions and sentences on March 3, 2015. On direct appeal, Byrd ar- gued that there was insufficient evidence to support his convictions because the items found in his posses- sion do not constitute child pornography, and alterna- tively, that he did not knowingly possess child pornography because he believed the materials did not qualify as child pornography. United States u. Byrd, 595 Fed. Appx. 431 (5th Cir. 2015). In rejecting the for- mer claim, the Fifth Circuit expressly found that its review of the evidence refuted Byrd's assertion that the items underlying his conviction do not amount to child pornography and additionally found no clear er- ror in the jury's "conclusion that these items contained a lascivious exhibition of children's genitalia." Id. at *432. The United States Supreme Court denied writs of certiorari on October 5, 2015. Byrd v. United States, 136 S.Ct. 96 (2015). In the instant Motion, petitioner argues four claims for relief: (1) that his counsel was ineffective for failing to allow him to testify to explain the basis for his innocence, including that the Azov Naturist Film Company from which he purchased was a "main line company" which was "legitimate" and which produced "only legal films" and that he "reviewed disclaimers" on these products, and that he obtained other stills from "bulletin boards which prohibited any child pornogra- phy"; (2) that the government engaged in selective prosecution by choosing to prosecute him and not oth- ers who were customers of the Azov Naturist Film Company because Byrd was "proceeding to address App. 10 misbehavior of the AUSA" in a prior 1992 trial, and that his attorney was ineffective for failing to raise this issue; (3) that there is no record evidence indicating which of the many images the jury unanimously found constituted child pornography to convict him and that his attorney was ineffective for failing to object as to this lack of specificity; and (4) that there is no testi- mony as to the age of the specific individuals depicted in the image or images the jury unanimously relied on to convict him and that counsel was ineffective for fail- ing to object as to this lack of specificity.
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