Ball v. United States of America
Filing
60
(1) William Brinson Ball's pro se Amended 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence (Civ. Doc. # 12; Crim. Doc. # 166) is DENIED. (2) Mr. Ball's original 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence (Civ. Doc. # 1; Crim. Doc. # 53) is DENIED as moot. (3) The Clerk is directed to enter judgment for the United States of America and to close this case. Signed by Judge Virginia M. Hernandez Covington on 10/24/2024. (RAS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WILLIAM BRINSON BALL,
v.
Case No. 8:18-cr-69-VMC-AAS
8:22-cv-2301-VMC-AAS
UNITED STATES OF AMERICA.
_______________________________/
ORDER
This matter is before the Court on William Brinson Ball’s
pro se 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or
Correct Sentence (Civ. Doc. # 1; Crim. Doc. # 53), filed on
October 3, 2022. Mr. Ball filed an amended Motion on December
27, 2022. (Civ. Doc. # 12). The United States of America
responded on January 25, 2023. (Civ. Doc. # 14). Mr. Ball
filed a reply on May 24, 2023. (Civ. Doc. # 21). For the
reasons that follow, the Motion is denied.
I.
Background
On February 15, 2018, a grand jury indicted Mr. Ball of
attempting to induce a minor to engage in sexual activity in
violation of 18 U.S.C. § 2422(b) and transporting child
pornography in violation of 18 U.S.C. § 2252(a)(1) and (b)(1).
(Crim. Doc. # 1). On April 30, 2018, Mr. Ball pled guilty to
both counts of the indictment. (Crim. Doc. # 36).
1
At the change of plea hearing, Magistrate Judge Amanda
Arnold Sansone asked Mr. Ball, who was under oath, a number
of questions regarding his guilty plea. She first assured
that he had sufficient education to read the documents in his
case
and
that
he
was
not
under
the
influence
of
any
intoxicating substances. (Crim. Doc. # 89 at 4-5). She next
confirmed that Mr. Ball had reviewed the charges, evidence,
and his option to go to trial with his attorney, Mr. Franklyn
Louderback. (Id. at 5-6). She asked Mr. Ball if he was “fully
satisfied
with
the
advice
and
representation”
of
Mr.
Louderback, to which he responded “[y]es, Your Honor.” (Id.).
She also confirmed that he had read each page of the plea
agreement, had discussed it with Mr. Louderback, and that Mr.
Louderback had answered any questions he had. (Id. at 7). She
next read the most significant terms of his plea agreement
with the government and ensured that Mr. Ball understood those
terms. (Id. at 7-9).
Judge Sansone next asked Mr. Ball whether he had been
“threatened,” “coerced,” or “force[d]” to plead guilty, to
which he responded “[n]o, your honor.” (Id. at 10). She asked
him if he was “pleading guilty, then, freely and voluntarily?”
(Id.). He responded “[y]es, Your Honor.” (Id.). She also
2
confirmed that he understood that his plea agreement included
an appellate waiver. (Id. at 14-15).
The factual basis in the plea agreement included several
relevant
facts.
“[T]he
defendant
used
his
Application
A
account username ‘iwillwaitforher’ and display name ‘Pervy
Daddy,’
to
[communicate
with]
X.X.,
whom
the
defendant
believed to be a person with whom he had previously exchanged
child-pornographic
images
and/or
videos.
The
defendant,
however, was actually messaging an HSI special agent acting
in an undercover capacity.” (Crim. Doc. # 36 at 21). They
began messaging about arranging a “sexual encounter with [a]
seven-year old child.” (Id. at 23). Copies of these messages
show
that
the
undercover
agent
told
Mr.
Ball
that
the
encounter would happen in the “Florida gulf” and that the
child’s dad would take Mr. Ball and the child “out on his
boat in the gulf.” (Civ. Doc. # 1-1 at 8-9). The undercover
agent connected Mr. Ball with another undercover agent, with
whom Mr. Ball began planning the encounter, and leading Mr.
Ball to wire $5,000 to the agent. (Crim. Doc. # 36 at 24).
Mr. Ball confirmed with the second undercover agent that he
booked air travel from Dubai to Miami, but then missed his
flight and had to fly from Dubai to Orlando. (Id.). He further
explained his plans with the undercover agent, including
3
purchasing condoms and sex toys once he landed in Florida.
(Id. at 25).
Once
arriving
predetermined
in
meeting
Florida,
Mr.
location,
Ball
made
arrived
contact
at
the
with
the
undercover agent, and was arrested. (Id. at 26). A search
incident to arrest found a bag containing a child’s stuffed
animal,
various
lubricants,
sexual
devices,
and
numerous
condoms. (Id.). He also had an iPhone SE, which forensic
analysis
showed
to
contain
the
following:
493
child-
pornographic images and 42 child-pornographic videos, many of
which were sadistic in nature, and the three videos that had
been sent from the undercover agent to Mr. Ball. (Id. at 27).
Judge Sansone asked Mr. Ball specifically if he agreed
with the factual basis listed in the plea agreement. (Crim.
Doc. # 89 at 23). He only had one correction to make, noting
that he actually flew into Orlando instead of into Fort
Lauderdale from Dubai. (Id. at 23-24). Judge Sansone stated
that
she
would
note
this
correction
in
the
Report
&
Recommendation (“R&R”). (Id.). Mr. Ball then confirmed that
he agreed with all other facts in the plea agreement. (Id.).
On
April
30,
2018,
Judge
Sansone
entered
her
R&R,
recommending that the plea agreement and plea of guilty be
4
accepted.
(Crim.
Doc.
#
33).
Neither
party
filed
any
objections to the R&R.
On October 25, 2018, the sentencing hearing was held in
front of Judge Elizabeth A. Kovachevich. (Crim. Doc. # 57).
There are a few events from the hearing worth noting. At the
hearing, Mr. Louderback called Dr. Peter Bursten as an expert
witness. (Crim. Doc. # 84 at 11-13). Mr. Louderback had
retained Dr. Bursten to review documents related to the case,
meet with Mr. Ball, and perform a psychological evaluation of
Mr. Ball. (Id. at 19-20). He diagnosed him with “an other
specified
pedophilia
disorder,”
believes
Mr.
would
Ball
but
also
stated
benefit
from
“sex
that
he
offender
treatment.” (Id. at 28). He also testified that Mr. Ball told
him that he was first exposed to “child pornographic material”
18 months prior to his arrest. (Id. at 39). Mr. Louderback
orally moved for a downward variance “to or near the 120month minimum sentence that is mandated by Count One,” based
upon his acceptance of responsibility and his lack of criminal
record. (Id. at 66). He also argued that Mr. Ball should not
be sentenced at the top of guidelines range because he would
benefit from treatment and his age at the time of his release
suggested a low rate of recidivism. (Id. at 79-81).
5
Judge Kovachevich then delivered her sentence. She noted
that her “first responsibility is to protect the community
from [Mr. Ball].” (Id. at 81). She then added that Mr. Ball
has “an opportunity to get all the treatment [he] can possibly
get [while incarcerated],” and that his “problem, which is
serious, needs treatment long term, as well as keeping [him]
from the community during those years when [he] would still
have
the
opportunity
to
act
out.”
(Id.
at
81-82).
She
concluded that a sentence at the low-end of the guidelines
was adequate, and sentenced Mr. Ball to 262 months on Count
One and 240 months on Count Two, with each sentence running
concurrently.
(Id.
at
83).
She
denied
the
motion
for
a
downward variance. (Id.).
Mr. Ball filed his notice of appeal on November 9, 2018.
(Crim. Doc. # 67). On appeal, he argued that applying the
statute extraterritorially is unconstitutional and that his
conduct did not violate the statute. (Crim. Doc. # 111 at 2).
The Eleventh Circuit found that, due to the appellate waiver
and his acknowledgement that he had committed crimes that
would violate Florida law, his claim was partially foreclosed
“to the extent it is based on his contention that § 2422(b)
does not reach sexual conduct that would have occurred in
international waters and would not have violated Florida
6
law.” (Id. at 3-4). However, the Eleventh Circuit noted that
“the plea agreement also described conduct that presumably
occurred
from
Dubai.”
(Id.).
Accordingly,
the
Eleventh
Circuit found that “[t]o the extent Ball argues § 2422(b)
does not reach this conduct, this argument is not inconsistent
with
his
Applying
guilty
a
plea
plain
and
error
therefore
standard,
not
the
waived.”
Eleventh
(Id.).
Circuit
rejected Mr. Ball’s claim, holding that “[b]ecause neither
the Supreme Court nor this Court has addressed whether §
2422(b)
extends
to
conduct
occurring
outside
the
United
States, and the statute itself does not specifically resolve
this issue, we cannot say the district court plainly erred
even if it applied the statute extraterritorially.” (Id.).
Now, Mr. Ball seeks to vacate his convictions, citing
numerous claims of ineffective assistance of both plea and
appellate counsel, due process violations, and alleging that
the
district
court
extraterritorially.
responded
in
erred
(Civ.
opposition
Doc.
(Civ.
by
#
Doc.
applying
12).
#
§
The
14),
and
2422(b)
government
filed
an
affidavit from Mr. Louderback as an exhibit. (Civ. Doc. # 141). Mr. Ball filed a reply. (Civ. Doc. # 21). The Motion is
ripe for review.
7
II.
Legal Standard
Mr. Ball bears the burden of proving that he is entitled
to relief under Section 2255. See LeCroy v. United States,
739 F.3d 1297, 1321 (11th Cir. 2014) (“[O]n a § 2255 petition,
[the burden of proof] belongs to the petitioner.”). “Under
the
procedural
default
rule,
a
defendant
generally
must
advance an available challenge to a criminal conviction or
sentence on direct appeal or else the defendant is barred
from presenting that claim in a § 2255 proceeding.” Lynn v.
United States, 365 F.3d 1225, 1234-35 (11th Cir. 2004). “This
rule
generally
constitutional
applies
claims.”
to
Id.
A
all
claims,
petitioner
including
“can
avoid
a
procedural bar only by establishing one of the two exceptions
to the procedural default rule. Under the first exception, a
defendant must show cause for not raising the claim of error
on
direct
appeal and actual
prejudice
from
the
alleged
error.” Id. “Under the second exception, a court may allow a
defendant to proceed with a § 2255 motion despite his failure
to show cause for procedural default if a constitutional
violation has probably resulted in the conviction of one who
is actually innocent.” Id. (internal quotations and citations
omitted).
8
To prevail on a claim of ineffective assistance of
counsel,
a
petitioner
must
show
that
(1)
his
counsel’s
performance was deficient, and (2) the deficient performance
prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). To establish deficient performance, Mr. Ball
must demonstrate by a preponderance of the evidence “that
particular and identified acts or omissions of counsel were
outside
the
wide
range
of
professionally
competent
assistance.” Chandler v. United States, 218 F.3d 1305, 1314
(11th Cir. 2000) (internal citations and quotations omitted).
In other words, Mr. Ball must show that “no competent counsel
would have taken the action that [his] counsel did take.” Id.
at 1315. In deciding whether an attorney’s performance was
deficient, courts are “highly deferential” and “indulge [the]
strong presumption that counsel’s performance was reasonable
and
that
counsel
made
all
significant
decisions
in
the
exercise of reasonable professional judgment.” Id. at 1314
(internal quotation marks omitted).
To satisfy Strickland’s second prong — prejudice — Mr.
Ball must show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S.
at 694. “A reasonable probability is a probability sufficient
9
to undermine confidence in the outcome.” Id. “To establish
prejudice in the context of a guilty plea, [Mr. Ball] must
show that there is a ‘reasonable probability that, but for
counsel’s unprofessional errors,’ he would not have entered
a guilty plea and would have insisted on going to trial.”
Solomon v. United States, No. 1:10-CR-376-RWS-CCH, 2012 WL
1900138, at *2 (N.D. Ga. May 2, 2012) (citation omitted),
report and recommendation adopted, No. 1:10-CR-0376-RWS, 2012
WL 1900136 (N.D. Ga. May 24, 2012). “[I]f a claim fails to
satisfy the prejudice component, the Court need not make a
ruling on the performance component.” Ortiz v. United States,
No 8:15-cr-409-VMC-JSS, 2017 WL 6021645, at *2 (M.D. Fla.
Jan. 11, 2017).
“[C]ounsel need not always investigate before pursuing
or not pursuing a line of defense. Investigation (even a
nonexhaustive, preliminary investigation) is not required for
counsel reasonably to decline to investigate a line of defense
thoroughly.” Brownlee v. Haley, 306 F.3d 1043, 1060 (11th
Cir.
2002)
(citation
omitted).
“The
decision
whether
to
present a line of defense, or even to investigate it, is a
matter
of
strategy
and
is
not
ineffective
unless
the
petitioner can prove that the chosen course, in itself, was
unreasonable.” Id. (internal quotation and citation omitted);
10
see also Stephens v. United States, 14 F. Supp. 2d 1322, 1331
(N.D. Ga. 1998) (“A decision not to investigate a potential
defense,
like
reasonable
to
other
fall
litigation
within
the
decisions,
range
need
of
only
be
professionally
competent assistance.” (citation omitted)).
“[T]he Eleventh Circuit has held that ‘a valid sentenceappeal
waiver,
entered
into
voluntarily
and
knowingly,
pursuant to a plea agreement, precludes the defendant from
attempting
to
attack,
in
a
collateral
proceeding,
the
sentence through a claim of ineffective assistance of counsel
during sentencing.’” Krecht v. United States, 846 F. Supp. 2d
1268, 1279 (S.D. Fla. 2012) (quoting Williams v. United
States, 396 F.3d 1340, 1342 (11th Cir. 2005)).
Additionally, “[i]n cases where the files and records
make manifest the lack of merit of a Section 2255 claim, the
trial court is not required to hold an evidentiary hearing.”
United States v. Lagrone, 727 F.2d 1037, 1038 (11th Cir.
1984).
III. Analysis
Mr. Ball organizes his grounds into three categories,
and then divides the grounds into several sub-claims. (Civ.
Doc. # 12). The Court will organize his claims under the subclaim categories. These claims are: counsel’s failure to
11
investigate
his
case
(Claim
1.1);
counsel’s
failure
to
suppress evidence (Claim 1.2); counsel’s failure to hire a
forensics expert (Claim 1.3); counsel’s failure to explain
the elements of the crimes such that his plea was not knowing
and
voluntary
(Claim
1.4);
counsel’s
failure
to
seek
dismissal of Count One (Claim 1.5); counsel’s failure to
inform him that a conviction would negate his ability to
sponsor his wife’s visa (Claim 1.6); counsel’s ineffective
assistance
at
sentencing
(Claim
1.7);
the
government’s
deception leading Mr. Ball to believe that his conduct was
legal
(Claim
2.1);
the
government’s
post-Miranda
interrogation (Claim 2.2); the government’s breach of the
plea agreement (Claim 2.3); and that Section 2422(b) was
inapplicable to his conduct, such that Count One should have
been dismissed (Claim 3.1). (Id.).
A. Claim 1.1
Mr.
Ball
asserts
that
Mr.
Louderback
failed
to
adequately investigate his case, such that he failed to
unearth “exculpatory and mitigating evidence, significantly
altering the outcome of the underlying criminal proceeding.”
(Civ. Doc. # 12-2 at 14). He specifically alleges that he
should have “prepare[d] witnesses, request[ed] a forensic
analysis of evidence (e.g. iPhone), and seek suppression
12
ahead of any upcoming hearings.” (Id. at 15). The only hearing
Mr. Ball identifies is the arraignment, where he alleges he
was deprived of the opportunity “to adversarially test the
government’s discovery.” (Id. at 14).
In
his
“travelled
affidavit,
to
the
Mr.
Louderback
Homeland
Security
averred
(HSI)
that
he
Office
to
physically view the evidence.” (Civ. Doc. #14-1 at 3). Mr.
Ball acknowledges that Mr. Louderback visited law enforcement
in possession of the iPhone and viewed the evidence, leading
Mr. Louderback to conclude that the evidence was correct.
(Id. at 17). Once Mr. Louderback reached this conclusion, his
decision not to further investigate the iPhone’s content was
reasonable and cannot constitute deficient performance. See
Brownlee, 306 F.3d at 1060 (“The decision whether to present
a line of defense, or even to investigate it, is a matter of
strategy and is not ineffective unless the petitioner can
prove that the chosen course, in itself, was unreasonable.”
(internal
quotation
and
citation
omitted));
Streeter
v.
United States, 335 F. App’x 859, 863-64 (11th Cir. 2009)
(“Counsel does not render ineffective assistance by deciding
not to pursue a particular line of defense without substantial
investigation, so long as the decision was reasonable under
the circumstances.” (internal quotations omitted)).
13
Mr. Ball does not identify any other specific evidence
that
Mr.
Louderback
could
have
discovered
with
further
investigation. See Chandler, 218 F.3d at 1314 (requiring that
deficient performance be established with “particular and
identified acts or omissions of counsel”). Regardless, Mr.
Ball did not suffer any prejudice due to this supposed failure
by Mr. Louderback. He claims the failure to investigate denied
him the right to “test the government’s discovery” at the
arraignment (Civ. Doc. # 12-2 at 14), but he was arraigned on
an
indictment
(Crim.
Doc.
#
1),
and
not
entitled
to
a
preliminary hearing. Fed. R. Crim. P. 5.1(a)(2).
Having
deficient
found
that
performance
Mr.
nor
Ball
has
prejudice
established
as
a
result
neither
of
Mr.
Louderback’s alleged failure to investigate, the Court denies
the Motion as to Claim 1.1.
B. Claim 1.2
Mr.
Ball
next
alleges
that
Mr.
Louderback
provided
ineffective assistance of counsel by failing to move to
suppress evidence, specifically evidence obtained from his
rental car, the contents of his iPhone, and his post-Miranda
statements. (Id. at 15-17).
“[W]here a petitioner faults his lawyer for failing to
pursue a motion to suppress prior to entering a plea, both
14
the deficient performance and prejudice prongs of Strickland
turn on the viability of the motion to suppress.” Arvelo v.
Sec’y, Fla. Dep’t of Corr., 788 F.3d 1345, 1348 (11th Cir.
2015).
Mr. Louderback was not ineffective for failing to move
to suppress the contents of Mr. Ball’s rental car. Mr. Ball
claims that “the government agent invited himself in Ball’s
vehicle without Ball’s consent . . . the agent took Ball’s
bag, searched it, and performed a warrantless search around
the vehicle.” (Civ. Doc. # 12-2 at 15). This is an inaccurate
account of what transpired. Mr. Ball met the undercover agent,
whom he believed to be a co-conspirator, in a parking lot and
the agent entered Mr. Ball’s car to discuss the next steps.
(Civ. Doc. # 1-1 at 160-161). There is no indication that the
agent forced his way into the car against Mr. Ball’s wishes,
as Mr. Ball said nothing to that effect during the incident.
(Id.). Mr. Ball then, without any prompt by the agent to his
bag or its contents, asked the agent if he wanted to “check
the things in [the bag],” and said that the agent was “welcome
to have a look.” (Id. at 161-162). Together, Mr. Ball and the
agent
then
went
through
the
contents
of
the
bag,
which
included sexual toys and gifts for the child he believed he
was
meeting.
(Id.
at
162-163).
15
Accordingly,
Mr.
Ball
consented to the undercover agent’s search of the car and
bag, and thus, the search was constitutional. United States
v. White, 401 U.S. 745, 749 (1971) (“[H}owever strongly a
defendant may trust an apparent colleague, his expectations
in this respect are not protected by the Fourth Amendment
when it turns out that the colleague is a government agent
regularly communicating with the authorities.” (citing Hoffa
v. United States, 385 U.S. 293, 302 (1966)). Given that moving
for suppression of the vehicle and bag’s contents would have
been
futile,
Mr.
Ball
suffered
no
prejudice
from
Mr.
Louderback having failed to do so. This element of Mr. Ball’s
claim
fails.
See
Arvelo,
788
F.3d
at
1348
(“[B]oth
the
deficient performance and prejudice prongs of Strickland turn
on the viability of the motion to suppress.”).
The Court also finds that Mr. Ball suffered no prejudice
from Mr. Louderback’s failure to move to suppress the iPhone
contents. The government had warrants to search the iPhone,
iCloud, and Dropbox accounts. (Civ. Doc. # 1-1 at 227, 254,
265). There were no grounds to suppress the evidence, and Mr.
Louderback was not ineffective for failing to move for its
suppression. See Castillo v. United States, 816 F.3d 1300,
1303 (11th Cir. 2016) (“If a search was constitutional, then
counsel is not obligated to move to suppress the evidence or
16
dismiss the indictment and a defendant is not prejudiced by
counsel’s failure to do so.”).
Next,
Mr.
Ball’s
complaint
that
Mr.
Louderback
was
ineffective for failing to move to suppress his confessions
is meritless. Mr. Ball alleges that his confessions were made
in violation of his right to counsel. (Civ. Doc. # 12-2 at
16-17). At the beginning of his interrogation, Mr. Ball said
that
he
“would
like
the
possibility
of
speaking
to
an
attorney” and when asked by the interrogating agent if he
would “like to consult with an attorney first,” Mr. Ball
answered “yes.” (Civ. Doc. # 1-1 at 178). The agent then
sought clarification if that meant he “[didn’t] want to talk
to us about anything that’s going on today?” (Id.). At that
point, Mr. Ball gave an ambiguous answer about how he was
unsure,
followed
questions.
(Id.
by
at
later
178-79).
providing
Mr.
Ball
answers
only
to
spoke
their
of
his
potential desire to stop questioning before meeting with an
attorney, but never explicitly requested to stop questioning
until he spoke with an attorney. Without a clear request,
there was no violation of Mr. Ball’s Sixth Amendment right to
counsel. See Davis v. United States, 512 U.S. 452, 461-62
(1994) (“If the suspect’s statement is not an unambiguous or
unequivocal
request
for
counsel,
17
the
officers
have
no
obligation to stop questioning him.”). Accordingly, Mr. Ball
cannot establish any prejudice from Mr. Louderback’s failure
to move for suppression of his statements and the Court
rejects this aspect of Mr. Ball’s claim. See Arvelo, 788 F.3d
at 1348 (“[B]oth the deficient performance and prejudice
prongs of Strickland turn on the viability of the motion to
suppress.”).
C. Claim 1.3
Mr. Ball alleges that Mr. Louderback was ineffective for
failing to obtain a separate forensic examination of the
iPhone, such that he could not challenge the government
report’s alleged inclusion of duplicate images which led to
a higher sentencing enhancement. (Civ. Doc. # 12-2 at 17-18).
Mr. Ball’s claim fails. As discussed previously, Mr. Ball
acknowledges that Mr. Louderback visited law enforcement in
possession of the iPhone and viewed the evidence, leading Mr.
Louderback to conclude that the evidence was correct. (Id. at
17). In Mr. Ball’s account, Mr. Louderback’s confidence in
the report’s accuracy led him to reject Mr. Ball’s request to
obtain
a
separate
forensic
examination.
(Id.).
Mr.
Ball
cannot show that “no competent counsel would have taken the
action that his counsel did take,” as Mr. Louderback had
examined the evidence himself and saw no need to challenge
18
its accuracy. Chandler, 218 F.3d at 1315; see also Streeter,
335 F. App’x at 863-64 (“Counsel does not render ineffective
assistance by deciding not to pursue a particular line of
defense without substantial investigation, so long as the
decision was reasonable under the circumstances.” (internal
quotations omitted)). Accordingly, Mr. Ball has failed to
demonstrate that Mr. Louderback’s performance was deficient
and
he
cannot
establish
his
ineffective
assistance
of
counsel. The Court denies this claim.
D. Claims 1.4 and 1.5
Mr. Ball raises largely the same argument in both Claims
1.4 and 1.5. Mr. Ball claims that Mr. Louderback failed to
explain the elements of both counts of the indictment, and he
would have proceeded to trial had he been “made aware that
his alleged conduct may not have violated certain elements.”
(Civ. Doc. # 12-2 at 18-19). He also claims Mr. Louderback
was ineffective for failing to seek dismissal of Count One
because “none of his alleged conduct occurred in the United
States” (Id. at 19-20), specifically arguing that his “act of
enticement occurred while [he] was in his private apartment
in Dubai” and “the focus of his conduct was not in Florida,
but a boat 50 miles out in the Gulf of Mexico.” (Civ. Doc. #
21 at 7). This argument fails for both claims.
19
In his plea agreement, Mr. Ball admitted to flying to
Florida,
then
further
coordinating
in
Florida
with
the
undercover agent, buying sex toys and gifts for the fictitious
child in Florida, and ultimately meeting in-person in Florida
the agent whom he believed would lead him to the fictitious
child. (Crim. Doc. # 36 at 25-27). Given these facts, Section
2422(b) properly applies to Mr. Ball’s conduct. See United
States v. Strevell, 185 F. App’x 841, 844-45 (11th Cir. 2006)
(holding that
§ 2422(b) applied when defendant made all the
arrangements in the United States for a sexual encounter in
Costa Rica); United States v. Harris, 991 F.3d 552, 560-61
(4th
Cir.
2021)
(approving
of
domestic
applications
of
Section 2422(b) when the defendant is “physically present in
the United States when he engage[s] in at least some of his
actions in support of the conspiracy”).
Thus, Mr. Ball’s complaint is that Mr. Louderback did
not raise a meritless legal issue. However, “an attorney will
not be held to have performed deficiently for failing to
perform a futile act, one that would not have gotten his
client any relief.” Pinkney v. Sec'y, DOC, 876 F.3d 1290,
1297 (11th Cir. 2017). Accordingly, it was not ineffective
for Mr. Louderback not to seek dismissal of Count One on an
unsupported legal argument. To the extent that Mr. Ball’s
20
complaint is that Mr. Louderback did not inform him of a legal
argument that was unsupported by the present law, the Eleventh
Circuit
has
“held
many
times
that
reasonably
effective
representation cannot and does not include a requirement to
make
arguments
based
on
predictions
of
how
the
law
may
develop.” Rambaran v. Sec’y, Dep’t of Corr., 821 F.3d 1325,
1334 (11th Cir. 2016) (internal quotations omitted). The
Court denies each claim.
Furthermore, Mr. Ball’s argument that Mr. Louderback
failed to explain the elements of the charges to him fails.
Even assuming that Mr. Louderback failed to do so, the plea
colloquy cured this error. Judge Sansone engaged in a lengthy
explanation of the elements involved for each charge to
confirm Mr. Ball’s understanding. (Crim. Doc. # 89 at 17-21).
In fact, Mr. Louderback directed the court’s attention to a
nuance within the second element of the second count to ensure
that his client was not pleading to the production of child
pornography. (Id.). After this nuance was resolved, Mr. Ball
then confirmed that he understood the elements of the charges.
(Id.). Thus, the plea colloquy assured that Mr. Ball had been
explained the elements of his crimes and Mr. Ball thereafter
reaffirmed his desire to plead guilty. Therefore, he cannot
establish a valid ineffective assistance of counsel claim on
21
this argument. See United States v. Wilson, 245 F. App’x 10,
12 (11th Cir. 2007) (holding that an effective plea colloquy
may cure any ineffective assistance in the explanation of the
terms of the plea agreement).
E. Claim 1.6
Next,
Mr.
Ball
alleges
that
Mr.
Louderback
was
ineffective for failing to advise him that, as a consequence
of
his
conviction,
he
would
be
unable
to
sponsor
an
immigration visa for his wife. (Civ. Doc. # 12-2 at 20-21).
Mr. Ball did not include this claim in his initial motion,
and first made this claim in his amended Motion. (Civ. Doc.
## 1, 12). Mr. Ball had until October 12, 2022, one year after
his conviction became final, to file his Section 2255 motion.
28 U.S.C. § 2255(f). He did not file his amended Motion until
December 27, 2022, almost two months after the deadline.
This additional claim is barred unless it “relates back”
to the claims in his initial motion, which is established “if
[it] ‘arose out of the conduct, transaction, or occurrence’
set forth in his original § 2255 motion.” Davenport v. United
States, 217 F.3d 1341, 1344 (11th Cir. 2000) (quoting Fed. R.
Civ. P. 15(c)). Furthermore, “the untimely claim must have
more in common with the timely filed claim than the mere fact
that
they
arose
out
of
the
22
same
trial
and
sentencing
proceedings.” Id.; see also Farris v. United States, 333 F.3d
1211, 1215-16 (11th Cir. 2003) (holding that a claim that
counsel had failed to advise defendant about certain elements
of his sentencing exposure did not relate back to claims of
counsel’s failure to advise him of other elements of his
sentencing exposure).
As Mr. Ball did not raise any issues related to the
collateral consequences of his plea in his motion, this
additional claim cannot relate back. Thus, the Court denies
this claim as untimely.
F. Claim 1.7
Mr.
Ball
ineffective
also
alleges
assistance
of
that
counsel
Mr.
Louderback
provided
at
sentencing
by:
(1)
failing to file a sentencing memorandum; (2) failing to
present
mitigating
evidence
to
rebut
the
government’s
argument that Mr. Ball had engaged in prior illicit conduct
by calling Mr. Ball’s wife and friend to testify; and (3)
failing to object to the Court’s allegedly improper promotion
of rehabilitation to justify its sentence. (Civ. Doc. # 12-2
at 21-23).
The Court notes that Mr. Louderback’s strategy at the
sentencing hearing was to focus on Mr. Ball’s acceptance of
responsibility and low risk of recidivism. (Crim. Doc. # 84).
23
Counsel presented expert testimony to attempt to show Mr.
Ball’s low risk of recidivism. (Id. at 11-13). He also moved
for a downward variance based on Mr. Ball’s acceptance of
responsibility and lack of criminal history (Id. at 66), or
in the alternative argued for a sentence at the low end of
the guidelines range. (Id.). This strategy was moderately
successful, as Judge Kovachevich sentenced him to the low end
of the guidelines range. (Id. at 83).
The Court finds that Mr. Louderback’s decision not to
file a sentencing memorandum was not ineffective. In his
affidavit, Mr. Louderback averred that “[he] did not prepare
a Sentence Memorandum because [his] prior experience with
Judge Kovachevich led [him] to conclude that she did not give
such self-serving documents any weight.” (Civ. Doc. # 14-1 at
4). Thus, Mr. Louderback made a reasoned strategic decision
that filing a sentencing memorandum would be unpersuasive.
The Court finds that such a strategic decision does not
constitute ineffective assistance here. See Chandler, 218
F.3d at 1314 n. 14 (holding that counsel is not ineffective
for
choosing
to
make
certain
strategic
decisions
at
sentencing and choosing not to make other arguments); Felker
v. Thomas, 52 F.3d 907, 912 (11th. Cir. 1995) (holding that
24
counsel’s
strategic
decision
to
advance
one
argument
at
sentencing over another argument was “entirely reasonable”).
Likewise, Mr. Louderback’s decision not to call Mr.
Ball’s wife and friend to testify at the sentencing hearing
was not ineffective. Mr. Ball claims that these witnesses
would have “present[ed] mitigating testimony that would have
rebutted
the
government’s
presumption
of
prior
conduct.”
(Civ. Doc. # 12-2 at 21). First, the Court notes that a letter
by Mr. Ball’s wife was attached to the presentence report,
such
that
the
Court
was
able
to
consider
his
wife’s
perspective. (Crim. Doc. # 52 at 35-37). Indeed, several
letters from Mr. Balls’ friends and family were attached to
the
presentence
report.
(Id.
at
22-44).
Second,
Mr.
Louderback presented significant mitigating evidence at the
hearing of Mr. Ball’s acceptance of responsibility and low
risk of recidivism, and specifically addressed his lack of
prior illicit conduct. (Crim. Doc. # 84 at 40). He called Dr.
Peter
Bursten
testified
who,
that
Mr.
after
Ball
being
only
qualified
started
as
an
looking
expert,
at
child
pornographic material eighteen months before his arrest, and
that his offense conduct was “an escalation in his deviant
behavior.” (Id. at 39-41). Mr. Louderback was not ineffective
for
choosing
to
use
Dr.
Bursten’s
25
testimony
to
present
mitigating evidence, and not calling Mr. Ball’s wife and
friend. See Chandler, 218 F.3d at 1319 (“Counsel is not
required
to
present
every
nonfrivolous
defense;
nor
is
counsel required to present all mitigation evidence, even if
the
additional
mitigation
evidence
would
not
have
been
incompatible with counsel’s strategy.”).
Mr. Ball also misrepresents the justification of Judge
Kovachevich for his sentence. Mr. Ball claims that Judge
Kovachevich’s
sentence
“was
based
on
the
need
for
rehabilitation.” (Civ. Doc. # 12-2 at 22). This entirely
ignores
her
statement
at
sentencing
that
her
“first
responsibility is to protect the community from you.” (Crim.
Doc # 84 at 81). She then added that his “problem, which is
serious, needs treatment long term,” and that she had to
protect the community during that time. (Id. at 81-82). Judge
Kovachevich’s justifications were entirely permissible. See
Tapia v. United States, 564 U.S. 319, 334 (2011) (“A court
commits
no
error
by
discussing
the
opportunities
for
rehabilitation within prison or the benefits of specific
treatment
or
training
programs.”).
Accordingly,
Mr.
Ball
cannot establish any prejudice from Mr. Louderback’s failure
to object to a permissible sentence and the Court rejects Mr.
Ball’s claim. See Ortiz, 2017 WL 6021645, at *2 (“[I]f a claim
26
fails to satisfy the prejudice component, the Court need not
make a ruling on the performance component.”).
G. Claims 2.1 and 2.2
Mr. Ball alleges that the government violated his due
process
rights
by
manufacturing
jurisdiction
through
“trickery” (Civ. Doc. # 12-2 at 23), and violated his Miranda
rights (Id. at 23-24). The government responds that these
claims are procedurally defaulted because Mr. Ball failed to
raise these claims on appeal. (Civ. Doc. # 14 at 14). Mr.
Ball replies that he failed to raise these claims on appeal
due to ineffective assistance of counsel, as his appellate
counsel, Ms. Rachel Reese, advised him that these claims could
not be raised on appeal. (Civ. Doc. # 21 at 8-10).
The Court finds that by failing to raise these arguments
in his direct appeal, Mr. Ball procedurally defaulted on these
claims. See Lynn, 365 F.3d at 1234-35 (“Under the procedural
default rule, a defendant generally must advance an available
challenge to a criminal conviction or sentence on direct
appeal or else the defendant is barred from presenting that
claim in a § 2255 proceeding.”). Therefore, Mr. Ball must
establish either that there is both cause and prejudice for
his
failures,
or
that
a
“constitutional
27
violation
has
probably resulted in the conviction of one who is actually
innocent.” Id.
Mr. Ball claims that he failed to raise these arguments
due to ineffective assistance of counsel. (Civ. Doc. # 21 at
8-10). A valid ineffective assistance of counsel claim would
constitute cause. See Fortenberry v. Haley, 297 F.3d 1213,
1222 (11th Cir. 2002) (“A petitioner can establish cause by
showing
that
a
constitutionally
procedural
ineffective
default
assistance
was
of
caused
counsel
by
under
Strickland.”).
However, Mr. Ball has not established a valid claim of
ineffective assistance of counsel for the failure to raise
these two arguments. Even if he had argued on appeal that the
government
agents
engaged
in
“trickery”
of
an
unconstitutional nature, his claim would have been denied.
See United States v. Castaneda, 997 F.3d 1318, 1324 (11th
Cir. 2021) (“As for law enforcement’s generic sting operation
of
posting
a
Craigslist
ad
and
communicating
with
[the
defendant] about his desire to abuse a child, there is no
legal basis for challenging as outrageous those commonplace,
and
common
sense,
tactics.”).
Likewise,
as
the
Court
discussed previously, Mr. Ball’s claim based on supposed
Miranda violations is without merit. Accordingly, Mr. Ball
28
suffered no prejudice from Ms. Reese’s failure to raise these
two arguments on appeal, such that Mr. Ball cannot prove an
ineffective assistance of appellate counsel claim. See United
States
v.
Nyhuis,
211
F.3d
1340,
1344
(11th
Cir.
2000)
(“Appellate counsel is not ineffective for failing to raise
claims reasonably considered to be without merit.” (internal
quotations omitted)). Accordingly, Mr. Ball cannot establish
any cause for his failure to raise these arguments on appeal.
See Lynn, 365 F.3d at 1234-35 (requiring both cause and
prejudice to excuse a procedural default).
Mr. Ball also cannot meet the second possible exception
to a procedural default that a “constitutional violation has
probably resulted in the conviction of one who is actually
innocent.” Id. “[A}ctual innocence means factual innocence,
not mere legal insufficiency.” Bousley v. United States, 523
U.S. 614, 623 (1998). Mr. Ball admitted to, and does not
attempt to refute now, that he endeavored to sexually assault
a seven-year-old, and that he possessed child pornographic
pictures and videos. (Crim. Doc. # 36 at 21-27). Thus, the
Court does not find that Mr. Ball argues his actual innocence,
nor does it find any evidence of actual innocence in the
record. Accordingly, Mr. Ball cannot establish the second
exception for his procedural default.
29
Having
failed
to
establish
both
exceptions
for
his
procedural default, the Court denies Claims 2.1 and 2.2 as
procedurally barred.
H. Claim 2.3
Mr. Ball argues that the government breached the plea
agreement by failing to move for an additional one-level
downward departure pursuant to U.S.S.G. § 3E1.1.(b) beyond
the
two-level
downward
departure
for
acceptance
of
responsibility pursuant to U.S.S.G. § 3E1.1.(a). (Civ. Doc.
# 12-2 at 24). The government responds that this claim is
procedurally barred as Mr. Ball failed to raise this argument
in his direct appeal. (Civ. Doc. # 14 at 14). Mr. Ball did
not address the government’s position in his reply. (Civ.
Doc. # 21). The Court agrees with the government that the
claim is procedurally barred.
By failing to raise this argument in his direct appeal,
Mr. Ball procedurally defaulted on this claim. See Lynn, 365
F.3d
at
1234-35
(“Under
the
procedural
default
rule,
a
defendant generally must advance an available challenge to a
criminal conviction or sentence on direct appeal or else the
defendant is barred from presenting that claim in a § 2255
proceeding.”). Therefore, Mr. Ball must establish either that
there is both cause and prejudice for his failure, or that a
30
“constitutional
violation
has
probably
resulted
in
the
conviction of one who is actually innocent.” Id.
Contrary to Mr. Ball’s assertion, Mr. Ball did receive
an additional one-level downward adjustment under U.S.S.G. §
3E1.1.(b). (Crim. Doc. # 52 at 12). Accordingly, Mr. Ball has
suffered no prejudice from failing to raise this meritless
argument and cannot establish the first exception to the
procedural bar. See Lynn, 365 F.3d at 1234-35 (requiring both
cause and prejudice to meet the procedural bar exception). As
this claim relates to his sentencing, as opposed to his
convictions,
Mr.
Ball
also
cannot
establish
the
second
exception’s requirement that a “constitutional violation has
probably resulted in the conviction of one who is actually
innocent.” Id.
Having failed to meet both exceptions for his procedural
default, the Court denies this claim as procedurally barred.
Even if it were not procedurally barred, this claim would
fail on the merits because, as mentioned, Mr. Ball did receive
the one-level downward adjustment.
I. Claim 3.1
Finally, Mr. Ball argues that 18 U.S.C. § 2422(b) was
inapplicable to his conduct because “the alleged conduct Ball
pleaded to occurred in Dubai” and “even if any sexual activity
31
were to have occurred, it would have been in international
waters.” (Civ. Doc. # 12-2 at 25). The government responds
that this claim is procedurally barred because he raised this
argument on his direct appeal and may not re-litigate his
legal arguments in a Section 2255 action. (Civ. Doc. # 14 at
17). Mr. Ball replies that the claim is not procedurally
barred because “[t]he Eleventh Circuit did not reach the
merits of his claim.” (Civ. Doc. # 21 at 10). The Court agrees
with the government that the claim is procedurally barred.
“The district court is not required to reconsider claims
of error that were raised and disposed of on direct appeal.
Once a matter has been decided adversely to a defendant on
direct appeal it cannot be re-litigated in a collateral attack
under section 2255.” Nyhuis, 211 F.3d at 1343 (internal
quotations and citations omitted). In rejecting Mr. Ball’s
claim, the Eleventh Circuit held that “[b]ecause neither the
Supreme Court nor this Court has addressed whether § 2422(b)
extends to conduct occurring outside the United States, and
the statute itself does not specifically resolve this issue,
we cannot say the district court plainly erred even if it
applied the statute extraterritorially.” (Crim. Doc. # 111 at
4). Accordingly, the Eleventh Circuit did reach the merits of
his claim, applying the appropriate standard for review. See
32
United States v. Straub, 508 F.3d 1003, 1008 (11th Cir. 2007)
(“When the defendant does not preserve an argument for appeal,
we review for plain error.”).
Therefore, Mr. Ball may not now re-litigate this claim
in his Amended Section 2255 Motion, and the Court denies this
claim as procedurally barred.
IV.
Evidentiary Hearing
As the Court has readily concluded that the Motion lacks
merit, the Court declines to hold an evidentiary hearing on
Mr. Ball’s Amended Section 2255 Motion. See Lagrone, 727 F.2d
at
1038
hearings
(holding
in
§
that
2255
courts
actions
need
when
not
the
hold
lack
evidentiary
of
merit
is
“manifest”).
V.
Certificate of Appealability and Leave to Appeal In
Forma Pauperis Denied
The
Court
appealability
declines
because
Mr.
to
issue
Ball
has
a
certificate
failed
to
make
of
a
substantial showing of the denial of a constitutional right
as required by 28 U.S.C. § 2253(c)(2). Nor will the Court
authorize Mr. Ball to proceed on appeal in forma pauperis
because such an appeal would not be taken in good faith. See
28 U.S.C. § 1915(a)(3). Mr. Ball shall be required to pay the
33
full amount of the appellate filing fee pursuant to Section
1915(b)(1) and (2).
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)
William Brinson Ball’s pro se Amended 28 U.S.C. § 2255
Motion to Vacate, Set Aside, or Correct Sentence (Civ.
Doc. # 12; Crim. Doc. # 166) is DENIED.
(2)
Mr. Ball’s original 28 U.S.C. § 2255 Motion to Vacate,
Set Aside, or Correct Sentence (Civ. Doc. # 1; Crim.
Doc. # 53) is DENIED as moot.
(3)
The Clerk is directed to enter judgment for the United
States of America and to close this case.
DONE and ORDERED in Chambers in Tampa, Florida, this
24th day of October, 2024.
34
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