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Gourlay v. Barett

United States District Court, E.D. Michigan, Southern Division

April 11, 2017

KENNETH GOURLAY, Petitioner,
v.
JOSEPH BARRETT, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on petitioner Kenneth Gourlay's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, petitioner challenges his convictions for two counts of child sexually abusive activity, Mich. Comp. Laws § 750.145c(2); two counts of using a computer to communicate with another to commit child sexually abusive activity, id. § 750.145d(2)(f); two counts of distributing or promoting child sexually abusive material, id. § 750.145c(3); two counts of using a computer to communicate with another to commit distribution of child sexually abusive material; id. § 750.145d(2)(d); third-degree criminal sexual conduct (“CSC”), id. § 750.520d(1)(a); and soliciting a child for immoral purposes, id. § 750.145a.

         The trial court sentenced petitioner to concurrent prison terms of six to twenty years for the child sexually abusive activity and using a computer to communicate with another to commit child sexually abusive activity convictions; three to seven years for the distributing or promoting child sexually abusive material convictions, four to ten years for the using a computer to communicate with another to commit distribution of child sexually abusive material convictions, five to fifteen years for the CSC conviction, and 145 days for the soliciting a child conviction. For the reasons that follow, the petition for a writ of habeas corpus is denied.

         I. BACKGROUND

         Petitioner was convicted on March 9, 2007, following a jury trial in the Washtenaw County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).

Justin Berry, at the age of 13, obtained a web camera, which he soon used to broadcast pornographic images of himself over the Internet. Berry also created his own website, the “justinscam” website, which he used to broadcast the images.
Defendant, who owned Chain Communications, a web hosting company, contacted Berry, informing Berry that he was watching Berry over the Internet. Defendant and Berry began to communicate on a daily basis. They talked about computers, but Berry also informed defendant that he wanted to take his website to “the next level.” He wanted to place his website with a web hosting company and he wanted the website to have a members-only section. Defendant and Berry discussed different ideas for the new website.
In January 2002, the new website, the “JFWY” website, was created. The purpose of the website was to allow Internet viewers to watch Berry engage in pornographic acts. Chain Communications hosted the website. Defendant registered the domain name, created a members-only section, and programmed the website with a JAVA applet, which provided a near live streaming image. According to Berry, defendant watched the images broadcasted over the website.
In the spring of 2003, Berry moved into an apartment, which he set up with several web cameras so that his Internet viewers could watch him day and night. Berry discussed the apartment and the cameras with defendant. He also informed defendant that he was going to create a new website, the “mexicofriends” website. The purpose of this website was also to allow Internet viewers to watch Berry engage in pornographic acts. Chain Communications hosted the website, and defendant registered the domain name, created a members-only section, and programmed the website with the JAVA applet.
Defendant denied knowing that Berry was broadcasting pornographic images of himself over the JFWY and mexicofriends websites. He believed that the JFWY website was a “rouse.” Berry explained to him that the website only contained pictures of Berry in “suggestive” poses and that the website's name stood for “just f* * * * * * with you.” With the website, Berry “was just f* * * * * * with those pedophiles on the [I]nternet who thought they could get child pornography.” When Berry created the mexicofriends website, defendant was led to believe that the website would only contain pornographic images of Berry's Mexican friends. When defendant learned that the website had pornographic images of Berry, he believed that Berry was over the age of 18.

People v. Gourlay, No. 278214, 2009 WL 529216, at *1B2 (Mich. Ct. App. Mar. 3, 2009).

         The Court adds these additional facts from the record:

         Petitioner grew Berry's child pornography business from a home-based, part-time site to a 24/7 operation. The record contains an abundance of evidence consisting of chats between Berry and petitioner showing that petitioner was sexually and romantically attracted to Berry. (March 6, 2007, T. pp. 178, 220-22, 235, 236-37.)

         Petitioner persuaded Berry to continue producing his child pornography because it was “lucrative, ” and that Berry should “milk” it for all it was worth. (March 7, 2007, T. pp. 234- 35.) While petitioner claims that Berry had many other legitimate web sites on petitioner's internet server, Berry's Mexicofriends.com web site accounted for 51% of petitioner's Internet traffic on his server. (March 6, 2007, T. pp. 22-23, 24.) Furthermore, child pornographic images from Berry's web sites were found on petitioner's hard drive under a folder labeled “Ken.”[1] (Id. at 31.) Petitioner's conviction was affirmed on appeal. See Gourlay, 2009 WL 529216, at *1, lv. den. 772 N.W.2d 382 (2009).

         Petitioner has filed a habeas petition seeking relief on the following claims:

I. The court's failure to instruct the jury on a substantial defense-federal preemption and immunity for an internet service provider who does not create the child pornographic content-resulted in plain error affecting petitioner's substantial rights; alternatively, defense counsel's failure to request a proper federal preemption instruction amounted to ineffective assistance of counsel.
II. Newly discovered Brady information demonstrates that the prosecution's primary witnesses gave materially false testimony and concealed material inducements, and petitioner was entitled to an evidentiary hearing on the issue pertaining to being deprived of his ...

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