Wallace v. USA

Filing 24

ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255). Signed by Judge Warren W. Eginton on 6/21/17. (Ladd-Smith, I.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MATTHEW WALLACE,
Petitioner,
v.
USA,
Respondent.

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3:16-cv-00119-WWE

MEMORANDUM OF DECISION ON PETITIONER’S
MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Following a three-day trial, a jury convicted Matthew Wallace of one count of receipt of
child pornography and one count of possession of child pornography. The Court sentenced
Wallace to 100 months of imprisonment, below the Guidelines range. The Second Circuit
rejected Wallace’s numerous arguments on appeal. See United States v. Wallace, 607 F. Appx
25 (2d Cir. 2015).
Wallace has now moved pursuant to 28 U.S.C. § 2255 to vacate his sentence based on
alleged ineffective assistance of counsel. Wallace raises ten separate issues in his petition, which
the Court will address in turn.
Ground One: Counsel Failed to Properly Advise Client of Plea
To succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate
that he was actually prejudiced by his counsel’s unreasonably deficient performance. Strickland
v. Washington, 466 U.S. 668, 688 (1984). At the plea offer stage, a defendant must show that
but for the ineffective advice there is a reasonable probability that the defendant would have
accepted the plea. Lafler v. Cooper, 566 U.S. 156, 164 (2012).
A defendant can demonstrate prejudice “by producing both a sworn affidavit or testimony
stating that he would have accepted or rejected a plea agreement but for his counsel's deficient

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performance and also some additional ‘objective evidence’ supporting his claim.” U.S. v.
Frederick, 526 Fed. Appx. 91, 93 (2d Cir. 2013). This objective evidence can come, for
example, in the form of a large disparity between a defendant’s actual sentence and the likely
sentence he would have received pursuant to the plea agreement. Id.
Wallace argues that if he had received competent advice from counsel he would have
made “a more intelligent and informed decision” to accept the plea offer instead of electing to go
to trial. Nevertheless, Wallace has been unwavering in asserting his innocence, and the
agreement offered by the government before trial included a potential sentence of up to 120
months in prison, large fines, and sex offender registration. Wallace’s persistence in maintaining
his innocence through the appeals process undercuts his position that he would have accepted
such a deal, especially considering that the actual sentence imposed after trial was a belowGuidelines 100 months.
Wallace has neither sworn that he would have accepted the government’s plea offer nor
presented additional objective evidence of prejudice. Moreover, Wallace indicated on separate
occasions in open court that he was satisfied with his attorney’s representation and that he and
counsel agreed to decline the plea offer after reviewing it together. See Blackledge v. Allison,
431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry a strong presumption of verity.
The subsequent presentation of conclusory allegations unsupported by specifics is subject to
summary dismissal, as are contentions that in the face of the record are wholly incredible.”).
Accordingly, Wallace’s plea offer claim will be denied.
Ground Two: Counsel Failed to Properly Investigate Defense
Wallace argues that his attorney failed to properly rebut false evidence and statements
proffered at trial by the government. Wallace also faults his attorney for deciding not to put their

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forensic computer expert, Mr. Libby, on the stand to present his defenses. Wallace believes that
if counsel had properly investigated and presented various exculpatory evidence, the result of the
trial may have been different.
The government responds that these are matters of trial strategy that are unchallengeable.
See United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002) (“A failure to call a witness for
tactical reasons of trial strategy does not satisfy the standard for ineffective assistance of
counsel.”). Similarly, “[d]ecisions about whether to engage in cross-examination, and if so to
what extent and in what manner, are ... strategic in nature and generally will not support an
ineffective assistance claim.” Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002). The
government also points out that the defense was able to elicit much of the testimony that Wallace
asserts was improperly withheld – for example, that the images of children were located in
temporary folders and that Wallace’s computer was unsecured and vulnerable to unauthorized
access. The Court will not overturn Wallace’s conviction based on his allegations of tactical
mistakes. Accordingly, Wallace’s investigation claim will be denied.
Ground Three: Counsel Failed to Pursue Alibi
Wallace argues that counsel failed to present two of his alibi defense witnesses: Donald
Gesswin and Nigel Edgerton. The government responds that counsel did present an alibi defense
through Wallace himself and through two other witnesses: his mother and his fiancé. All three
testified that Wallace was not at his mother’s home on the day in question, so additional
witnesses could have been viewed as cumulative. Moreover, Wallace admits that Gesswin, who
could have testified that he and Wallace spent the day moving a washer and dryer, has a prior
felony conviction for child endangerment, which counsel allegedly explained to Wallace, “might

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not sound good to a jury.” Finally, Wallace merely spoke to Edgerton by telephone on the day in
question, so it is not clear that his testimony would have been helpful to Wallace’s case.
As discussed above, tactical decisions concerning trial strategy do not constitute a basis
for ineffective assistance claims. Accordingly, Wallace’s alibi claim will be denied.
Ground Four: Courtroom was Inappropriate for Trial
Wallace argues that a faulty audio system in the courtroom prevented the Court from
hearing essential testimony and argument, as evidenced by “inaudible” indications at various
places in the transcript. He asserts that counsel should have objected more strenuously to the
courtroom setup.
The government responds that the 39 instances where the trial transcript indicates
“inaudible” does not mean the judge or the jurors were unable to hear the testimony; it reflects
only that the electronic recording system was unable to capture a particular word or phrase
sufficiently enough to allow the transcriber to decipher what was said. Moreover, counsel cannot
be held ineffective for failing to point these instances out during trial, as the only way he would
have been aware of them was by reviewing the transcript, which was not prepared until after the
trial was over.
The Court agrees that Wallace’s argument regarding the courtroom audio is speculative
and therefore insufficient to establish prejudice. See Kemp v. New York, 2009 WL 306258, at
*14 (S.D.N.Y. February 9, 2009) (“Vague and speculative allegations . . . are insufficient to
establish the prejudice required by Strickland.”). Accordingly, Wallace’s claim based on an
allegedly inappropriate courtroom will be denied.

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Ground Five: Court Failed to Rule on Defendant’s Rule 29 Motion
Wallace argues that the Court failed to rule on his motion for a judgment of acquittal
pursuant to Rule 29, made at the close of the government’s case. The government responds that
pursuant to Rule 29(b), the court may reserve decision on the motion at the time it is made and
decide it either before or after the jury returns a verdict. See Fed. R. Crim. P. 29(b). Although
Wallace’s counsel never renewed the motion, and the Court never explicitly denied it, the
Second Circuit has held that in these circumstances, the Court’s “subsequent entry of a judgment
of conviction makes plain that it denied the motion.” See U.S. v. Jianjun Liu, 515 Fed. Appx.
49, 51 (2d Cir. 2013). Here, as in Liu, the jury returned a verdict of guilty, and the Court
sentenced the defendant and entered a judgment of conviction. Moreover, any renewal of
Wallace’s Rule 29 motion would have been denied, as viewing the evidence in a light most
favorable to the government, and drawing all inferences in favor of the prosecution, a reasonable,
rational jury could have found Wallace guilty beyond a reasonable doubt. See U.S. v. Irving,
452 F.3d 110, 117 (2d Cir. 2006) (“A Rule 29 motion should be granted only if the district court
concludes there is no evidence upon which a reasonable mind might fairly conclude guilt beyond
a reasonable doubt.”). Accordingly, Wallace’s Rule 29 claim will be denied.
Ground Six: Counsel Ignored Defendant’s Request to Confer Regarding
Summation
Wallace argues that defense counsel’s “off-the-cuff” closing statement was deficient,
primarily due to counsel’s failure to consult with Wallace immediately before beginning his
summation. The government responds that Wallace has neglected to identify how consultation
would have aided his defense. Absent clarification of the points Wallace desired to suggest to

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counsel, this claim amounts to conclusory speculation, incapable of demonstrating prejudice.
See Strickland, 466 U.S. at 693.
In addition, the government contends that Wallace’s attorney presented a comprehensive
summation which addressed the evidence and highlighted defense themes, including the burden
of proof, the element of intent, the vulnerability of Wallace’s internet connection, Wallace’s alibi
defense, and how Wallace’s cooperation with investigators indicated his innocence. See Al
Jaber v. U.S., 2014 WL 3925496, at *5 (D. Conn. August 12, 2014) (holding under similar
circumstances that counsel was well within the bounds of objectively reasonable representation).
Wallace’s claim based on counsel’s failure to confer prior to summation will be denied.
Ground Seven: Trial Misconduct
Wallace argues that the government’s misrepresentation of facts, false statements, and
inflammatory, irrelevant evidence antagonized and confused the jury and amounted to trial
misconduct. Moreover, Wallace contends that his defense counsel failed to counteract such
tactics.
Wallace argues that the government engaged in misconduct at trial by introducing
evidence about (1) defendant’s possession of a pornographic magazine titled “Hawk” that
advertised barely legal teens; (2) his possession of discs and computer files depicting bestiality;
and (3) his paid membership in an adult pornographic website titled BlacksOnBlondes.com. In
addition, Wallace complains about misleading testimony concerning his refusal to take a
polygraph and about the functionality of online file-sharing networks. Finally, Wallace contends
that the government should not have been permitted to show the jury images of child
pornography found on Wallace’s computer in light of Wallace’s willingness to stipulate to their
nature and existence.

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The government responds that because the Second Circuit rejected these same claims of
government misconduct on direct appeal, Wallace is precluded from raising them again here.
See Yick Man Mui v. U.S., 614 F.3d 50, 55 (2d Cir. 2010). “A § 2255 motion may not relitigate
issues that were raised and considered on direct appeal.” U.S. v. Perez, 129 F.3d 255, 260 (2d
Cir. 1997).
Wallace attempts to differentiate his claims in this petition by arguing that his counsel
was ineffective for failing to object to or otherwise challenge the government’s conduct. But the
government points out that defense counsel did object to and move to preclude the above
evidence at trial. Counsel cannot be faulted when the Court denied his motions and allowed the
evidence. Moreover, counsel was successful in obtaining limiting instructions where
appropriate, as, for example, with regard to the polygraph evidence. Accordingly, Wallace’s
claim that defense counsel was ineffective at preventing trial misconduct will be denied.
Ground Eight: Counsel Left During PSR Interview
Wallace argues that his attorney exited the room part way through his pre-sentencing
interview with probation, which resulted in an inaccurate and prejudicial PSR. Nevertheless, the
record contradicts Wallace’s self-serving allegations.
The PSR itself states that “Mr. Wallace was interviewed in the presence of counsel.” At
sentencing, Wallace confirmed under oath that he had reviewed the PSR and was satisfied with
its contents. He also stated that he was satisfied with his counsel’s representation.
Regardless of the accuracy of Wallace’s contentions, he has cited no authority for a right
to counsel during the PSR interview. The government, in contrast, has listed numerous
persuasive authority in opposition. See e.g. United States v. Tyler, 281 F.3d 84, 96 (3d Cir.

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2002) (“[N]o court has found the Sixth Amendment right to counsel applies to routine
presentence interviews.”).
Finally, Wallace has again failed to demonstrate prejudice. He merely “believe[s]” that a
corrected PSR could have resulted in a “potentially lowered non-guideline sentence.”
The Court will deny Wallace’s PSR-based ineffective assistance claim.
Ground Nine: Failure to Argue Misinformation in PSR
Wallace challenges the number of images he possessed, arguing that the evidence did not
show that he possessed over 600 images of child pornography, which was the number reflected
in the PSR that was used to determine his sentencing enhancements under the Guidelines.
The government responds that the Second Circuit already considered and rejected this
argument on direct appeal. Therefore, Wallace may not relitigate the issue. See Perez, 129 F.3d
at 260. Moreover, Wallace explicitly stated under oath that he was satisfied with the PSR, which
included the enhancement for over 600 images.
To the extent that Wallace is claiming his counsel was ineffective for not raising the issue
before sentencing, he cannot demonstrate prejudice, as any such challenge would have been
futile. The government’s forensic examiner testified that he found over 500 images of child
pornography, and the government presented at least four videos of child pornography, which,
under the Guidelines, shall be considered the equivalent of 75 images each for purposes of the
sentencing enhancement. U.S.S.G. § 2G2.2 Application Note 4(B)(ii). Accordingly, the total
number of “images” of child pornography found on Wallace’s computer exceeded 600, so his
claim based on misinformation will be denied.

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Ground Ten: A Pattern of Ineffectiveness During Post-Conviction Proceedings
Wallace argues that his attorney was dilatory and ineffective in his appeal to the Second
Circuit. He alleges that a breakdown in communications between attorney and client ultimately
led to an appellate brief that lacked depth and omitted crucial arguments.
The government responds that “it is not sufficient for the habeas petitioner to show
merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to
advance every nonfrivolous argument that could be made.” Mayo v. Henderson, 13 F.3d 528,
533 (2d Cir. 1994). Indeed, there is no “constitutional right to compel appointed counsel to press
nonfrivolous points requested by the client, if counsel, as a matter of professional judgment,
decides not to present those points.” See Jones v. Barnes, 463 U.S. 745, 751 (1983). Moreover,
Wallace was permitted to file both a supplemental pro se brief and a pro se reply brief, so he
cannot demonstrate prejudice. See Knight v. Phillips, 2012 WL 5955058, at *21 (E.D.N.Y. Nov.
28, 2012) (“When a petitioner has raised, in a supplemental pro se brief, the very issues that he
asserts demonstrate prejudice, his ineffective assistance of appellate counsel claim must be
denied.”).
Here, the Second Circuit stated: “We have considered all of the arguments raised
by Wallace on appeal and find them to be without merit.” U.S. v. Wallace, 607 Fed. Appx. 25,
30 (2d Cir. 2015). Accordingly, Wallace’s claim based on an ineffective appeal will be
dismissed.

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CONCLUSION
For the foregoing reasons, Wallace’s motion to vacate, set aside, or correct his sentence is
DENIED. The Clerk is instructed to close this case.
Dated this 21st day of June, 2017, at Bridgeport, Connecticut.

/s/Warren W. Eginton
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE

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