Walley v. USA

Filing 26

ORDER denying 8 --amended motion to vacate/set aside/correct sentence (2255); denying 25 --motion for hearing; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER JUDGMENT against Walley and to CLOSE the case. Signed by Judge Steven D. Merryday on 3/28/2018. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.

CASE NO. 8:13-cr-304-T-23AEP
8:15-cv-344-T-23AEP

RONALD O. WALLEY
/
ORDER
Walley moves under 28 U.S.C. § 2255 (Doc. 8) to vacate his sentence and
challenges the validity of his convictions for one count of both receipt of child
pornography and possession of child pornography, for which he is imprisoned for
sixty months. Walley pleaded guilty without a plea agreement. The United States
correctly argues that Walley’s guilty plea precludes his claims and that the motion to
vacate otherwise lacks merit.
I. FACTS*
In 2006/2007, Ronald O. Walley was identified through the
course of an Immigration and Customs Enforcement operation
(Project Flicker) which sought to identify individuals who had
made purchases from known child pornography (CP) websites.
Due to Walley’s association with the Department of the Navy
at the time of the purchases, NCIS assumed investigative
jurisdiction.
On July 6, 2011, NCIS S[pecial] A[gent]s made contact with
Walley at his residence [in] Ft. Meade, Florida, in the Middle
District of Florida. The agents identified themselves as NCIS

This summary of the facts derives from the “Notice of Essential Elements, Penalties, and
Factual Basis” (Doc. 26 at 4–6), which Walley accepted as true when he pleaded guilty. (Doc. 67
at 22–25)
*

agents and advised Walley that they needed to discuss a matter
with him that occurred prior to his discharge from the United
States Marine Corps. Walley invited the agents into his
residence to discuss the matter.
During the interview Walley advised that in 2003 while in the
Marines, he had been caught looking at child pornography . . .
and received counseling for it. Walley eventually admitted to
currently possessing child pornography on his ASUS laptop
computer. He also advised that he had a “couple hundred”
child pornographic images and a “few” videos saved on his
computer which he had downloaded through “Vuze,” a peer-topeer network. Walley advised that the images did not contain
any sexual contact and were of females ranging in age from
10 and up. . . .
After being advised of his constitutional right to refuse, Walley
signed a consent form and provided his ASUS laptop and
Toshiba laptop computer to law enforcement. Walley advised
the agents that the computers contained child pornographic
images.
A subsequent forensic review of the ASUS and Toshiba
revealed that Walley possessed numerous images and
videos of child porn and child erotica. Most of the files were
located in the “Vuze Downloads” folder and organized into
subfolders by what appears to be series names. All of the
images were downloaded from Vuze between September 8,
2010, and June 9, 2011, with several downloads occurring on
December 7, 2010. A review of the search terms used on
Walley’s computers confirm that Walley was looking for child
pornography. . . .
....
All of the images and videos located on Walley’s media were
forwarded to the National Center for Missing and Exploited
Children (NCMEC). NCMEC identified 1,888 image files and
772 video files as known child erotica and child pornography
containing known child victims. Many of the images/videos
were created outside of the United States and outside of the
state of Florida.

Walley pleaded guilty without a plea agreement. Under the Presentence
Investigation Report, Walley earned an Offense Level of 30 and a Criminal History
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Category I, which produces a recommended sentencing range of 97–121 months.
The district court sentenced Walley to imprisonment for sixty months and to
supervised release for life. In his motion to vacate Walley asserts three claims of
ineffective assistance of counsel and two direct challenges to his conviction and
sentence.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Walley asserts several claims of ineffective assistance of counsel, a difficult
claim to sustain. “[T]he cases in which habeas petitioners can properly prevail on
the ground of ineffective assistance of counsel are few and far between.” Waters v.
Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d
384, 386 (11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an
ineffective assistance of counsel claim, as Sims v. Singletary, 155 F.3d 1297, 1305
(11th Cir. 1998), explains:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
Supreme Court set forth a two-part test for analyzing ineffective
assistance of counsel claims. According to Strickland, first, the
defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

Strickland requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an
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ineffective assistance claim . . . to address both components of the inquiry if the
defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305
(“When applying Strickland, we are free to dispose of ineffectiveness claims on
either of its two grounds.”). “[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of counsel’s conduct.”
466 U.S. at 690. Strickland requires that “in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally competent
assistance.” 466 U.S. at 690.
Walley must demonstrate that counsel’s alleged error prejudiced the
defense because “[a]n error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of a criminal proceeding if the error had no
effect on the judgment.” 466 U.S. at 691S92. To meet this burden, Walley must
show “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the

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extent that reasonable professional judgments support the limitations on
investigation.” 466 U.S. at 690S91. Walley cannot meet his burden merely by
showing that the avenue chosen by counsel proved unsuccessful.
The test has nothing to do with what the best lawyers would
have done. Nor is the test even what most good lawyers would
have done. We ask only whether some reasonable lawyer at the
trial could have acted, in the circumstances, as defense counsel
acted at trial . . . . We are not interested in grading lawyers’
performances; we are interested in whether the adversarial
process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220S21 (11th Cir. 1992). Accord Chandler v.
United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial
lawyers, in every case, could have done something more or something different. So,
omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent
or appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting
Burger v. Kemp, 483 U.S. 776, 794 (1987)). See also Jones v. Barnes, 463 U.S. 745, 751
(1983) (counsel has no duty to raise a frivolous claim).
Although the Strickland standard controls a claim that counsel was ineffective
for recommending that a client plead guilty, Hill v. Lockhart, 474 U.S. 52 (1985),
Agan v. Singletary, 12 F.3d 1012 (11th Cir. 1994), the quantum of evidence needed to
prove both deficient performance and prejudice is different. “[C]ounsel owes a lesser
duty to a client who pleads guilty than to one who decided to go to trial, and in the
former case counsel need only provide his client with an understanding of the law in
relation to the facts, so that the accused may make an informed and conscious choice
between accepting the prosecution’s offer and going to trial.” Wofford v. Wainwright,
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748 F.2d 1505, 1508 (11th Cir. 1984). To prove prejudice, “the defendant must show
that there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S.
at 59.
III. GUILTY PLEA
Walley pleaded guilty and accepted the above factual basis. Tollett v.
Henderson, 411 U.S. 258, 267 (1973), holds that a guilty plea waives a nonjurisdictional defect:
[A] guilty plea represents a break in the chain of events
which has preceded it in the criminal process. When a criminal
defendant has solemnly admitted in open court that he is in
fact guilty of the offense with which he is charged, he may not
thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty
plea.

This waiver of rights precludes most challenges to the conviction. “[W]hen the
judgment of conviction upon a guilty plea has become final and the offender seeks to
reopen the proceeding, the inquiry is ordinarily confined to whether the underlying
plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569
(1989). See also United States v. Patti, 337 F.3d 1217, 1320 (11th Cir. 2003)
(“Generally, a voluntary, unconditional guilty plea waives all non-jurisdictional
defects in the proceedings.”). A guilty plea waives a claim based on a pre-plea
event, including a claim of ineffective assistance of counsel. Wilson v. United States,
962 F.2d 996, 997 (11th Cir. 1992). However, a guilty plea does not waive the right
to challenge the validity of the plea. Wilson, 962 F.2d at 997 (“A defendant who
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enters a plea of guilty waives all non-jurisdictional challenges to the constitutionality
of the conviction, and only an attack on the voluntary and knowing nature of the plea
can be sustained.”). Consequently, the entry of a guilty plea waives a claim (other
than a jurisdictional challenge or a challenge to the voluntariness of the plea),
including both a substantive claim and a purported failing of counsel that occurred
before entry of the plea.
IV. GROUNDS FOR RELIEF
Walley asserts five grounds for relief, two grounds that he should have raised
on appeal (grounds one and three) and three grounds of ineffective assistance of
counsel, two of which are based on counsel’s alleged omissions in grounds one and
three. Walley’s amended motion lists his grounds as follows (Doc. 8):
1.

Conviction and sentence on both counts of indictment
are multiplicious [sic] in violation of the Fifth
Amendment Double Jeopardy Clause.

2.

Ineffective assistance of counsel for failure to raise a
double jeopardy claim rendered guilty plea unintelligent.

3.

The Judgment and Sentence were imposed in violation
of the Fourth and Fifth Amendments due to NCIS
violation of its own regulations promulgated under
18 U.S.C. § 375.

4.

Failure of counsel to move to have indictment dismissed
or evidence suppress based on NCIS investigation of this
case induced [the] guilty plea[,] making such plea
involuntary.

5.

Ineffective assistance of counsel [for] counsel’s failure
to conduct adequate investigation prior to advising
defendant to plead guilty made [the] guilty pleas null
and void.

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Each ground is waived by Walley’s guilty plea because each ground is based
on a pre-plea event or omission and asserts no valid challenge to the voluntariness
of the plea. Wilson, 962 F.2d at 997. Moreover, each ground lacks merit. Walley’s
conviction for both receipt and possession of child pornography is not contrary to
the Double Jeopardy Clause because, under the admitted facts, Walley downloaded
the material from the internet on more than one occasion (grounds one and two).
The investigation by NCIS did not violate Walley’s rights because, even though he
was a civilian when arrested, under the admitted facts he was identified as possible
purchaser of pornography while he was still enlisted in the United State Marines
Corps (grounds three and four). At the change of plea hearing Walley testified that
he suffered from neither mental disease nor defect “of any kind,” and counsel
concurred that he had no concern about Walley’s competency (ground five).
(Doc. 67 at 5)
Accordingly, the amended motion under Section 2255 to vacate the sentence
(Doc. 8) is DENIED. The motion for an evidentiary hearing (Doc. 25) is DENIED.
The clerk must enter a judgment against Walley, close this case, and enter a copy of
this order in the criminal action.

DENIAL OF BOTH
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Walley is not entitled to a certificate of appealability (“COA”). A prisoner
moving under Section 2255 has no absolute entitlement to appeal a district court’s
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denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must
first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant
has made a substantial showing of the denial of a constitutional right.” To merit a
certificate of appealability, Walley must show that reasonable jurists would find
debatable both (1) the merits of the underlying claims and (2) the procedural issues
he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,
478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to
show that reasonable jurists would debate either the merits of the claims or the
procedural issues, Walley is entitled to neither a certificate of appealability nor an
appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Walley must obtain permission from the circuit court to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on March 28, 2018.

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