Walker v. USA

Filing 10

ORDER. Petitioner Stephen Roy Walkers Motion Under 28 U.S.C. § 2255 to Vacate,Set Aside or Correct Sentence (Civ. Dkt. 1 ) is DENIED. A Certificate of Appealability shall not issue in this case. the Clerk of Court shall forward a copy of this Order to the Ninth Circuit. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (mailed to circuit)(alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

STEPHEN ROY WALKER,
Crim. Case No. 1:15-cr-00219-BLW-1
Civ. Case No. 1:17-cv-00462-BLW

Petitioner,
v.

ORDER

UNITED STATES OF AMERICA,
Respondent.

INTRODUCTION
Pending before the Court is Petitioner Stephen Roy Walker’s Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.
Civ. Dkt. 1. The motion is fully briefed and at issue. For the reasons that follow, the
Court will deny the motion and dismiss the action without a hearing. The Court will not
issue a certificate of appealability.
BACKGROUND
On February 19, 2014, Magistrate Judge Candy W. Dale approved a warrant
allowing law enforcement officials to search the hotel room and personal vehicle of
Petitioner Stephen Roy Walker. Civ. Dkt. 8-7 at 1. The Application for Search Warrant
was based upon the affidavit of Special Agent Daren Boyd. Id. at 2. In his affidavit,
Special Agent Boyd described how Mr. Walker had used a photo-sharing website to trade

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in images of minors engaged in sexually explicit conduct. Id. at 10-14. In performing the
investigation Special Agent Boyd obtained subscriber information and Internet Protocol
(IP) address records for Mr. Walker from the Yahoo! Inc. Custodian of Records. Id. at
15-16. This information uncovered further emails from Mr. Walker to a Craigslist
account user. Id. at 19-27. In these emails, Mr. Walker offered to introduce his young
child to the Craigslist user and sent sexually suggestive images of the child. Id. Special
Agent Boyd eventually linked Mr. Walker’s IP addresses to the hotel room where he was
staying in Twin Falls, Idaho. Id. at 34-35.
Special Agent Boyd served the search warrant on February 20, 2014, and Mr.
Walker then agreed to travel with him to the Twin Falls Police Department for an
interview. Civ. Dkt. 8-2 at 2. At the police station, Mr. Walker requested an attorney. Id.
at 3. Special Agent Boyd asked if he should contact a public defender to which Mr.
Walker replied, “Yes, I think the sooner the better.” Id. at 3-4. Mr. Walker then said he
had a business card for an attorney in his wallet, which was still at his hotel room, but
that he did not have the funds to pay for an attorney. Id. at 4. Special Agent Boyd
contacted the Federal Public Defender’s Office, who connected him with attorney
Andrew Parnes. Id. at 5-6. Mr. Walker asked how the attorney would be paid, and Special
Agent Boyd explained that the government would pay Mr. Parnes if Mr. Walker was
unable to do so. Id. at 6.
Pursuant to the search warrant, federal agents discovered numerous images and
videos of child pornography from Mr. Walker’s external hard drive in his hotel room.
Civ. Dkt. 8-2 at 7, ¶ 17. In total, agents recovered 540 digital images and 46 videos
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depicting child pornography. Crim. Dkt. 27 at 4. These files included images and videos
depicting one of Mr. Walker’s children engaged in sexually explicit conduct. Id. at 8-9, ¶
21. Several of the video and image files depicted Mr. Walker sexually assaulting the
child. Id. After arriving at the station, Mr. Parnes spoke with Special Agent Boyd and
was given a copy of the search warrant and supporting affidavit. Civ. Dkt. 8-1 at 1, ¶ 6.
Upon review, Mr. Parnes concluded that there was no basis to challenge the search
warrant. Id. at ¶ 8. At that time, Mr. Parnes also reviewed the pornographic material that
had been seized. Id. at 2, ¶ 11.
Mr. Parnes and Mr. Walker then discussed the possibility of cooperation with law
enforcement. Civ. Dkt. 8-1 at 2, ¶ 10. Mr. Parnes counseled Mr. Walker that should he
decide to cooperate, he would need to tell the whole truth. Id. Mr. Parnes further advised
Mr. Walker that he might receive significant benefits under the sentencing guidelines for
his cooperation. Id. To facilitate cooperation, a Government attorney emailed a proffer
agreement letter to Mr. Parnes, which he reviewed with Mr. Walker. Id. at ¶ 9. The
proffer agreement stated, in pertinent part:
No Direct Use: The United States agrees that information contained in your
client’s proffer may not be used in the government’s case-in-chief against
your client, in the event he decides to go to trial in the matter now
pending…
Sentencing Information: Your client understands that since he is likely to
be indicted, or charged by information if he eventually decides to waive the
right to indictment, the United States, pursuant to 18 U.S.C. § 3661, must
provide to your client’s sentencing judge the contents of the proffer.
Pursuant to USSG § 1B1.8, however, the proffer may not be used to
determine the appropriate guideline sentence[.]

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Civ. Dkt. 8-5 at 2. Mr. Walker agreed to cooperate with the government agents under the
terms of the proffer letter. Civ. Dkt. 8-1 at 2, ¶ 13. Information from the proffer
interviews would eventually be included in Mr. Walker’s Presentence Investigation
Report (PSR). Crim. Dkt. 36 at 25-26, ¶ 25-33.
After signing the proffer agreement, Mr. Walker provided a statement to
government agents at the police station with Mr. Parnes present. Civ. Dkt. 8-1 at 2, ¶ 13.
During the conversation, Special Agent Boyd mentioned a digital camera that had not
been recovered in the initial search of the hotel room. Civ. Dkt. 8-2 at 10, ¶ 23. Mr.
Walker told Special Agent Boyd where the digital camera was located and consented to
police re-entering the hotel room, where they found the camera. Civ. Dkt. 8-2 at 10, ¶ 23.
Pornographic images and videos were located on the digital camera; however, the files
were duplicates of those that had already been found on Mr. Walker’s external hard drive
and had no impact on his sentence. Id. at ¶ 24.
On September 10, 2015, a grand jury returned a five-count indictment charging
Mr. Walker with three counts of Sexual Exploitation of Children under 18 U.S.C.
§ 2251(a), one count of Transportation of Child Pornography under 18 U.S.C.
§ 2252(a)(1), and one count of Possession of Child Pornography under 18 U.S.C.
§ 2252(a)(5)(B). Crim. Dkt. 1. Mr. Parnes represented Mr. Walker throughout the
criminal proceeding. Civ. Dkt. 8-1 at 2-3, ¶ 16.
During his representation, Mr. Parnes grew concerned about Mr. Walker’s mental
state. Id. at 3, ¶ 18. Mr. Parnes filed a Motion for Competency Hearing based on his
concern. Crim. Dkt. 11. The Court ordered a psychological evaluation and report. Crim.
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Dkt. 14. After reviewing the report and the case history, the Court found that Mr. Walker
was competent and allowed proceedings to continue. Crim. Dkt. 29.
In July, 2016, the Government and Mr. Walker reached a Plea Agreement. Crim.
Dkt. 27. Mr. Walker agreed to plead guilty to the counts for Transportation and
Possession of Child Pornography, while the Sexual Exploitation of Children counts were
dropped. Id. at 2. The parties agreed that the following United States Sentencing
Guidelines (U.S.S.G.) sections applied to the case:
a. 22 (base offense level under USSG § 2G2.2(a)(2));
b. +2 (material involving prepubescent minor under USSG § 2G2.2(b)(2));
c. +5 (distribution for the expectation of receipt of a thing of value under USSG §
2G2.2(b)(3)(B));
d. +4 (images depicting sadistic or masochistic conduct under USSG § 2G2.2(b)(4));
e. +5 (pattern of activity involving the sexual abuse or exploitation of a minor under
USSG § 2G2.2(b)(5));
f. +5 (600 or more images under USSG § 2G2.2(7)(D)).
g. Total offense level = 43.
Id. at 10-11. The parties further agreed that if Mr. Walker clearly accepted responsibility
for the offense he would be entitled to a reduction in offense level under U.S.S.G.
§ 3E1.1(a)-(b). Id. at 12.
While signing the plea agreement, Mr. Walker crossed out language that stated, “I
am satisfied with my attorney’s advice and representation in this case.” Crim. Dkt. 27 at
22. At the plea hearing, the Court questioned Mr. Walker about his satisfaction with Mr.
Parnes’ representation. Crim. Dkt. 48 at 5:13-15:5. The Court concluded that the plea
agreement’s allowance for filing of an ineffective assistance of counsel claim under 28
U.S.C. § 2255 sufficiently preserved Mr. Walker’s right to pursue any issue arising out of
Mr. Parnes’ advice. Id. at 16:11-17:12.
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LEGAL STANDARD
28 U.S.C. § 2255 provides four grounds on which a court may grant relief to a
federal prisoner who challenges the imposition or length of his or her custody: (1) “that
the sentence was imposed in violation of the Constitution or laws of the United States;”
(2) “that the court was without jurisdiction to impose such sentence;” (3) “that the
sentence was in excess of the maximum authorized by law;” and (4) that the sentence is
otherwise “subject to collateral attack.”
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a court
may summarily dismiss a § 2255 motion “[i]f it plainly appears from the face of the
motion and any annexed exhibits and the prior proceedings in the case that the movant is
not entitled to relief.” A court need not hold an evidentiary hearing in a § 2255 case
“when the issue of the prisoner's credibility can be conclusively decided on the basis of
documentary testimony and evidence in the record.” Frazer v. United States, 18 F.3d 778,
781 (9th Cir. 1994). The court may dismiss the § 2255 motion at other stages of the
proceeding such as pursuant to a motion by respondent, after consideration of the answer
and motion, or after consideration of the pleadings and an expanded record. See Advisory
Committee Notes following Rule 8 of the Rules Governing Section 2254, incorporated by
reference into the Advisory Committee Notes following Rule 8 of the Rules Governing
2255. If the court does not dismiss the proceeding, the court then determines, pursuant to
Rule 8, whether an evidentiary hearing is required. A hearing is not required if, in light of
the record, the movant’s allegations are “palpably incredible or patently frivolous.”

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Joseph v. United States, 583 F. App'x 830, 831 (9th Cir. 2014) (citing United States v.
Mejia–Mesa, 153 F.3d 925, 931 (9th Cir.1998)).
A § 2255 movant cannot appeal from the denial or dismissal of his § 2255 motion
unless he has first obtained a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R.
App. P. 22(b). A certificate of appealability will issue only when a movant has made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
satisfy this standard when the court has dismissed a § 2255 motion on procedural
grounds, the movant must show that reasonable jurists would find debatable (1) whether
the court was correct in its procedural ruling, and (2) whether the motion states a valid
claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
When the court has denied a § 2255 motion on the merits, the movant must show that
reasonable jurists would find the court's decision on the merits to be debatable or wrong.
Id.; see also Allen v. Ornoski, 435 F.3d 946, 951 (9th Cir. 2006).

ANALYSIS
Mr. Walker files this Motion to Vacate, Set Aside, or Correct Sentence on three
bases: first, that he received ineffective assistance from his attorney, Mr. Parnes; second,
that he was refused counsel of his choice; and third, that the Court committed judicial
error by accepting his guilty plea. Civ. Dkt. 1.
1.

Ineffective Assistance of Counsel

Mr. Walker first asserts that his attorney, Mr. Parnes, provided ineffective
assistance throughout the course of the investigation and court proceedings. To establish
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ineffective assistance of counsel, a plaintiff must show (1) that his “counsel’s
representation fell below an objective standard of reasonableness,” and (2) that there is a
“reasonable probability” that the deficient performance prejudiced the defense. Strickland
v. Washington, 466 U.S. 668 (1984). Conclusory allegations are insufficient to state a
claim of ineffective counsel. Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989).
When evaluating a defendant's representation, there is a strong presumption that
counsel's performance falls “within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 688. The reason being that, for the defendant, “[i]t is all too
tempting ... to second-guess counsel's assistance after conviction or adverse sentence....”
Id. For the Court, “it is all too easy to conclude that a particular act or omission of
counsel was unreasonable in the harsh light of hindsight.” Bell v. Cone, 535 U.S. 685,
702 (2002). In order to establish prejudice, a defendant must affirmatively prove by a
reasonable degree of probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different. Strickland, 466 U.S. at 694. The Strickland
standard is “highly demanding.” Kimmelman v. Morrison, 477 U.S. 365, 381-82 (1986).
Both ineffective assistance of counsel and prejudice must be found before a
district court will find that a conviction or sentence “‘resulted from a breakdown in the
adversar[ial] process that render[ed] the result [of the proceeding] unreliable’ and thus in
violation of the Sixth Amendment.” United States v. Thomas, 417 F.3d 1053, 1056 (9th
Cir. 2005) (quoting Strickland, 466 U.S. at 687). If either element of the two-part
Strickland test is absent, then a defendant has not met his or her burden. When making
this assessment, “there is no reason for a court deciding an ineffective assistance claim to
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approach the inquiry in the same order or even to address both components of the inquiry
...” Strickland, 466 U.S. at 697.
Mr. Walker alleges that Mr. Parnes provided ineffective assistance of counsel for
three reasons. First, because Mr. Parnes advised Mr. Walker to cooperate with
investigators. Second, because Mr. Parnes failed to file a motion to suppress evidence
arising out of the search warrant. And third, because Mr. Parnes requested a
psychological evaluation of Mr. Walker.
A.

Advice to Cooperate with Investigators

Mr. Parnes advised Mr. Walker that full cooperation with investigators could lead
to significant benefits under the sentencing guidelines. In turn, Mr. Walker agreed to
cooperate under the terms of the government’s proffer agreement. Under the proffer
agreement, information Mr. Walker shared could not be used in the government’s casein-chief or to determine his appropriate guideline sentence. But the agreement also stated
that the contents of the proffer must be provided to a sentencing judge, and as promised,
Mr. Walker’s statements in the proffer interviews were eventually included in his PSR.
Mr. Walker now claims that the evidence obtained through the proffer interview was
improperly “used against [him] in court.” Civ. Dkt. 1 at 4.
Cooperating with the government is a crucial aspect of plea bargaining and
sentencing under the Federal Sentencing Guidelines. United States v. Leonti, 326 F.3d
1111, 1117 (9th Cir. 2003). A defendant who cooperates does so with the hope of
obtaining a reduced sentence for substantial assistance to the government under U.S.S.G.
§ 5K1.1. Id. at 1118. A defendant seeking a reduced sentence is entitled to competent
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counsel during attempts to cooperate. Id. A downward departure for substantial assistance
is never guaranteed, but such a departure is impossible to obtain without successful
cooperation. Id. at 1119.
Mr. Parnes’ advice to cooperate with investigators was not ineffective assistance.
Mr. Parnes had reviewed the government’s evidence and correctly concluded that it was
overwhelming. He advised Mr. Walker that full cooperation could result in benefits under
the sentencing guidelines. In addition, Mr. Parnes secured a proffer agreement ensuring
that any information shared by Mr. Walker could not be used in a case-in-chief against
him. Under U.S.S.G. § 1B1.8(a), when a defendant provides self-incriminating
information during a proffer, that information “shall not be used in determining the
applicable guideline range.”
In this case, Mr. Walker’s proffer interview statements did not cause him to suffer
any prejudice. The proffer agreement allowed Mr. Walker to cooperate with the
government while protecting his right against self-incrimination had the case proceeded
to trial. Although Mr. Walker’s proffer statements were included in his PSR, the criminal
offense level agreed-to by the parties relied on information gathered independent of the
proffer. Mr. Parnes reasonably believed that full cooperation with the government
represented Mr. Walker’s best chance to receive a reduction in his sentence. That advice
was clearly within “the wide range of reasonable professional assistance.” Strickland, 466
U.S. at 688.
B.

Failure to File Motion to Suppress

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Mr. Walker next argues that the search warrant for his hotel room lacked probable
cause and that Mr. Parnes erred by failing to file a motion to suppress the evidence. Civ.
Dkt. 1 at 5. The search warrant was based on an affidavit submitted by Special Agent
Boyd and was approved by a Magistrate Judge. Special Agent Boyd’s affidavit claimed
that evidence existed showing Mr. Walker had traded in child pornography online, that
the devices Mr. Walker used to access the internet were likely in his hotel room, and that
Mr. Walker was offering to introduce his child to other individuals that he had connected
with online. Special Agent Boyd had also obtained further evidence of Mr. Walker’s
activities through a data request to Yahoo! Inc.’s Custodian of Records.
Probable cause for a search warrant exists when there is a “fair probability” that
the evidence will be found. Illinois v. Gates, 462 U.S. 213, 246 (1983). A magistrate
judge’s determination that probable cause exists “should be paid great deference.” Id. at
236. Mere conclusory statements by law enforcement, on their own, are insufficient to
create probable cause for possession of child pornography. See, e.g., Dougherty v. City of
Covina, 654 F.3d 892, 899 (9th Cir. 2011). But even if a warrant is unsupported by
probable cause, suppression of the evidence found in a search pursuant to that warrant is
not justified if “the officers’ reliance on the magistrate’s determination of probable cause
was objectively reasonable[.]” United States v. Needham, 718 F.3d 1190, 1194 (9th Cir.
2013) (quoting United States v. Leon, 468 U.S. 897, 926 (1984)). Suppression of
evidence would therefore be appropriate if an officer’s belief in the existence of probable
cause was entirely unreasonable based on an objective reading of the affidavit supporting

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the search warrant. Needham, 718 F.3d at 1194 (quoting United States v. Grant, 682 F.3d
827, 836 (9th Cir. 2012)).
Mr. Parnes reasonably concluded that a motion to suppress evidence arising out of
the search warrant would likely be fruitless. Mr. Parnes’ “strategic choice” not to pursue
a motion to suppress is “owed deference commensurate with the reasonableness of the
professional judgments on which [his decision was] based.” See Strickland, 466 U.S. at
681. The affidavit supporting the search warrant provided specific evidence that Mr.
Walker was engaged in trading of child pornography. Special Agent Boyd’s affidavit
alone establishes the reasonableness of the search warrant. And, even if this Court had
found the search warrant lacked probable cause, the officer’s reliance on the Magistrate
Judge’s finding of probable cause would be sufficient reason to deny a motion to
suppress under the Leon standard.
C.

Psychological Evaluation

Mr. Walker next alleges that his mental health evaluation was used against him by
the Court. Civ. Dkt. 1 at 4. Early in the proceeding, Mr. Parnes sought a psychological
evaluation for Mr. Walker to determine his competence to proceed to trial. Crim. Dkt. 12.
After reviewing the evaluation, the Court found Mr. Walker competent. Crim. Dkt. 26.
An attorney who is concerned about his client’s competence to proceed to trial has little
choice but to raise the issue with the Court. Doing so does not amount to “deficient
performance” under Strickland.
Information from the psychological evaluation was included in the Offender
Characteristics section of the PSR, but this information did not negatively affect Mr.
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Walker’s sentence in any way. Mr. Walker cannot show any prejudice from Mr. Parnes’
decision to seek a psychological evaluation. Since there was neither deficient
performance nor prejudice resulting from Mr. Parnes’ decision to raise the issue of his
client’s competence, the Court finds that it does not constitute ineffective assistance of
counsel.
For the reasons stated above, the Court finds that Mr. Parnes’ representation was
reasonable, that Mr. Walker has failed to meet either prong of the Strickland test with
respect to his three arguments for ineffective assistance of counsel, and will deny his
motion to vacate or modify his sentence on these grounds.
2.

Counsel of Choice

Mr. Walker also argues his sentence should be vacated because he was refused his
counsel of choice. Civ. Dkt. 1 at 7. After Mr. Walker arrived at the Twin Falls police
station, he requested an attorney. Special Agent Boyd asked if he should contact a public
defender, to which Mr. Walker replied, “[y]es, I think the sooner the better.” Mr. Walker
also mentioned that he had a business card for another attorney in his wallet, but that the
wallet was still in his hotel room. Special Agent Boyd told Mr. Walker he could call the
agents at the hotel room to get the phone number from Mr. Walker’s wallet. Civ. Dkt. 8-2
at 4, ¶ 8. Mr. Walker then said that he did not have the funds to pay for an attorney. Id. A
Twin Falls Police detective asked, “If we can’t get a hold of him, would someone from
the public defender’s office, would that suffice?” Id. Mr. Walker responded, “Well an
attorney is an attorney and they have to represent me, so yeah. Uh, just as far as
preference that’s the only kid that I’ve dealt with.” Id. Special Agent Boyd told Mr.
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Walker he was going to connect him with a public defender. Id. at ¶ 9. Special Agent
Boyd eventually got in touch with Mr. Parnes through the Federal Public Defender’s
Office. Mr. Walker asked, “How does he get paid?” and Special Agent Boyd explained
that the government would pay Mr. Parnes if Mr. Walker was unable to pay the attorney
himself. Id. at 6, ¶ 12.
A defendant is afforded a fair opportunity to secure counsel of his own choice.
Powell v. Alabama, 287 U.S. 45, 53 (1932). An indigent defendant does not have the
right to a particular attorney so long as they are afforded adequate representation. Caplin
& Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989). In other words,
“[T]he Sixth Amendment guarantees a defendant the right to be represented by an
otherwise qualified attorney whom that defendant can afford to hire, or who is willing to
represent the defendant even though he is without funds.” Id. at 624-25.
Although Mr. Walker initially requested a particular attorney, he did not object to
Special Agent Boyd reaching out to the Federal Public Defender’s Office. Further,
Special Agent Boyd had indicated that he could retrieve the phone number for Mr.
Walker’s preferred attorney if that was what Mr. Walker wanted. Mr. Walker indicated
that he did not have the funds to pay an attorney and asked how a public defender would
be paid. And, once Mr. Walker began working with Mr. Parnes, he did not request
substitute counsel at any time during the proceedings. At his plea hearing, Mr. Walker
indicated that “I have had opportunities to address [Mr. Parnes’ counsel] earlier, and I
chose to keep Mr. Parnes because I felt he has been doing a fine job . . . to represent me.”
Civ. Dkt. 8-4 at 18:11-14.
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Under the terms of his plea agreement, Mr. Walker also waived his right to file a
claim for being refused counsel of his choice. A defendant’s waiver of his right to appeal
is enforceable if (1) the language of the waiver encompasses the defendant’s right to
appeal on the grounds claimed on appeal, and (2) the waiver is knowingly and voluntarily
made. United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000) (citations and quotations
omitted). Mr. Walker’s plea agreement specifies that he waived any right to appeal or
collaterally attack the entry of plea, the conviction, the entry of judgment, and the
sentence, although he retained the right to file a 28 U.S.C. § 2255 motion alleging
ineffective assistance of counsel. Crim. Dkt. 27 at 16-17. At his plea hearing, Mr. Walker
indicated that his plea of guilty was knowing and voluntary. Id. at 35:5-38:4. Therefore,
the Court likewise finds that Mr. Walker waived his right to appeal, or otherwise
challenge, his not being provided the counsel of his choice.
3.

Judicial Error in Acceptance of Guilty Plea

Third, Mr. Walker argues that at his plea hearing he “did feel forced into accepting
[the] plea agreement” and that the Court committed judicial error by accepting his guilty
plea. Civ. Dkt. 1 at 9. The test for determining whether a plea is valid is “whether the plea
represents a voluntary and intelligent choice among the alternative courses of action open
to the defendant.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203
(1985). A guilty plea is coerced where a defendant is “induced by promises or threats
which deprive [the plea] of the nature of a voluntary act.” Doe v. Woodford, 508 F.3d
563, 570 (9th Cir. 2007) (citations omitted). To determine the voluntariness of the plea,
the Court must look to the totality of the circumstances, examining both the defendant's
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“subjective state of mind” and the “constitutional acceptability of the external forces
inducing the guilty plea.” Id.
At his plea hearing, Mr. Walker said that “when you ask me the question whether I
feel coerced, because of the way the events has gone from the decision on day one, yes.
Because of all the knowledge that’s out there now, yes, I want to take the plea because I
don’t feel I have any choice because there is no way to retract anything that has happened
since day one.” Civ. Dkt. 8-4 at 10:7-12. Taken in context, Mr. Walker’s statement that
he “fe[lt] coerced” does not render his guilty plea involuntarily. Mr. Walker’s statements
instead indicate that, given the evidence against him, he personally felt that he didn’t
“have any choice” other than to plead guilty. Id. Furthermore, the Court described the
significance of a guilty plea with Mr. Walker at his sentencing, made sure Mr. Walker
was making his plea voluntarily, and through its allocution with the Defendant found that
he had not been forced to plead guilty. Id. at 34:3-6. The totality of the circumstances
show that Mr. Walker was not in any way forced to plead guilty, and that the Court cured
any possibility that the Defendant subjectively felt coerced during its allocution with the
Defendant at sentencing. Therefore, the Court finds that the Defendant was not coerced
into pleading guilty, and will deny his motion on these grounds as well.
4. Certificate of Appealability
The standard to obtain review is lower than that required for the Petitioner to
succeed on the merits of his petition. Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th
Cir. 2000). To satisfy this lower standard when the court has denied a § 2255 motion, a
petitioner must show reasonable minds could debate over the resolution of the issues or
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that questions raised in the petition deserve further review. Allen, 435 F.3d at 951.
Having reviewed the record in this case, the Court finds that reasonable jurists would not
find its determinations regarding Mr. Walker’s claims to be debatable or deserving of
further review. Mr. Walker failed to demonstrate ineffective assistance of counsel under
the Strickland test, and cannot show he was either coerced into pleading guilty or that he
was denied his counsel of choice so as to justify relief under § 2255. See Dkts. 1 & 9.
Accordingly, the Court will not issue a certificate of appealability as to any issue raised in
Mr. Walker’s § 2255 motion.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that:
1. Petitioner Stephen Roy Walker’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside or Correct Sentence (Civ. Dkt. 1) is DENIED.
2. A Certificate of Appealability shall not issue in this case. Mr. Walker is
advised that he may still request a certificate of appealability from the Ninth
Circuit Court of Appeals pursuant to the Federal Rule of Appellate Procedure
22(b) and Local Ninth Circuit Rule 22-1.
3. IT IS FURTHER ORDERED that the Clerk of Court shall forward a copy of
this Order to the Ninth Circuit. The district court’s file in this case is available
for review online at www.id.uscourts.gov.

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DATED: July 18, 2019

_________________________
B. Lynn Winmill
U.S. District Court Judge

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