Walker v. USA

Filing 40

OPINION AND ORDER denying 31 Motion to Vacate. Final judgment shall be entered accordingly. Signed by Judge Juan M. Perez-Gimenez on 8/20/2015. (PMA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

JEFFREY MARTIN WALKER,
Petitioner,
v.

*
*
*
*
*
*
*

CIVIL NO. 13-1448(PG)
RELATED CRIM. 08-0400(PG)

UNITED STATES OF AMERICA,
Respondent.
*
_____________________________________
OPINION & ORDER
Before the Court are several motions: Petitioner’s 28 U.S.C. Sec. 2255
Habeas Corpus Petition (D.E.1)1; Respondent’s Response to the Petition
(D.E.11); Petitioner’s Motion Submitting Amendments (D.E. 20); Respondent’s
Response to Motion Submitting Amendments (D.E. 28); Petitioner’s Amended
Motion to Vacate, Set Aside or Correct Sentence (D.E. 31); and Respondent’s
Response to Amended 2255 Petition (D.E. 34).

For the reasons discussed

below, the Court finds all the Petitions shall be DENIED and the request
for evidentiary hearing is also DENIED.
I. BACKGROUND
On December 2, 2008, Petitioner, Jeffrey Martin Walker (hereinafter
“Petitioner” or “ J. Walker”) was indicted in a thirteen (13) count
Indictment by a Federal Grand Jury (Crim. D.E. 6 of Case No. 08-417(PG))2.
Count One (1) charged: On or about August 23, 2008, in the District
of Puerto Rico, and elsewhere within the jurisdiction of this Court, the
above mentioned defendant, JEFFREY MARTIN WALKER, unlawfully, willfully and
knowingly did travel in interstate commerce with the intent to kill,
1

D.E. is an abbreviation of docket entry number.

2

Crim.D.E. is an abbreviation of criminal docket entry.

Civil No. 13-1448(PG)

Page 2

injure, harass, and place under surveillance with the intent to kill,
injure, harass, and to intimidate another person, and in the course of and
as a result of such travel did place that person in reasonable fear of
death and did cause substantial emotional distress to that person and a
member of the immediate family of that person, to wit, defendant WALKER did
travel from Michigan to Puerto Rico with the intent to kill, injure and
harass

A.W.

(his

then

wife)

and

A.M.W.

(their

son)

and

place

such

individuals in reasonable fear of serious bodily injury to themselves and
each other, and did cause them substantial emotional distress, in violation
of Title 18, United States Code, Section 2261A(1). (D.E. 6 at p. 1 in Cr.
08-0400(PG)).
Counts two (2) through eleven (11) charged: On or about the dates
listed below, in the District of Puerto Rico, and elsewhere within the
jurisdiction of this Court, the above mentioned defendant, JEFFREY MARTIN
WALKER, unlawfully, willfully and with the intent to kill, injure, harass,
and place under surveillance with intent to kill, injure, harass, and
intimidate, and cause substantial emotional distress to a person in another
State, did use the mail, an interactive computer service, and a facility of
interstate commerce to engage in a course of conduct that did cause
substantial emotional distress to that person, to wit, defendant, JEFFREY
MARTIN WALKER, who resided in Michigan, sent several electronic mail
messages (emails), while posing as his son A.M.W.,to his then wife, A.W.,
who resided in Puerto Rico, and caused her and her immediate family members
substantial emotional distress, in violation of Title 18, United States
Code, Section 2261(A)(2):
Count 2: March 13, 2008 at 12:26 AM - Email from Jeffrey Walker,
resident of Michigan, posing as his son, to A.W., resident of Puerto

Civil No. 13-1448(PG)

Page 3

Rico, entitled “Whoreable [sic] Behavior”;
Count 3: March 28, 2008 at 10:04 AM - Email from Jeffrey Walker,
resident of Michigan, posing as his son, to A.W., resident of Puerto
Rico, entitled “My trip”;
Count 4: March 28, 2008 at 11:31 AM - Email from Jeffrey Walker,
resident of Michigan, posing as his son, to A.W., resident of Puerto
Rico, entitled “I Know”;
Count 5: March 29, 2008 at 7:46 AM - Email from Jeffrey Walker,
resident of Michigan, posing as his son, to A.W., resident of Puerto
Rico, entitled “Phone call”;
Count 6: March 31, 2008 at 8:51 PM - Email from Jeffrey Walker,
resident of Michigan, posing as his son, to A.W., resident of Puerto
Rico, entitled “reasons”;
Count 7: April 1, 2008 at 2:29 PM - Email from Jeffrey Walker,
resident of Michigan, posing as his son, to A.W., resident of Puerto
Rico, entitled “Do you want a copy”;
Count 8: April 1, 2008 at 4:52 PM - Email from Jeffrey Walker,
resident of Michigan, posing as his son, to A.W., resident of Puerto
Rico, entitled “no subject”;
Count 9: April 4, 2008 at 9:31 AM - Email from Jeffrey Walker,
resident of Michigan, posing as his son, to A.W., resident of Puerto
Rico, entitled “Pictures”;
Count 10: April 4, 20008 at 9:58 PM - Email from Jeffrey Walker,
resident of Michigan, posing as his son, to A.W., resident of Puerto
Rico, entitled “You wanted something”;
Count 11: April 4, 2008 at 11:36 PM - Email from Jeffrey Walker,
resident of Michigan, posing as his son, to A.W., resident of Puerto

Civil No. 13-1448(PG)

Page 4

Rico, entitled “What are you doing”. (D.E. 6 at p. 2-3 in Cr. 080400(PG)).
Count twelve (12) charged: On or about October 14, 2008, in the
District of Puerto Rico, and elsewhere within the jurisdiction of this
Court, the above mentioned defendant, JEFFREY MARTIN WALKER, did knowingly
and willfully deposit in an authorized depository for mail matter, to be
sent and delivered by the Postal Service, and knowingly caused to be
delivered by the Postal Service according to the directions thereon, a
communication, postmarked October 14, 2008, addressed to: A.W., US District
Court, 150 Chardon Ave., Hato Rey, PR 00918, that contained the following
threat to injure A.W. and their son3 in violation of Title 18, United States
Code, Section 876(c). (D.E. 6 at p. 3-4 in Cr. 08-0400 (PG)).
Count thirteen (13) charged: On or about October 28, 2008, in the
District of Puerto Rico, and elsewhere within the jurisdiction of this
Court, the above mentioned defendant, JEFFREY MARTIN WALKER, did knowingly
and willfully deposit in an authorized depository for mail matter, to be
sent and delivered by the Postal Service, or knowingly caused to be
delivered by the Postal Service according to the directions thereon, a
communication, postmarked October 28, 2008, addressed to: Tony Walker (no

3

Do you fear god? You should. He is long suffering but when he jumps on you
he jumps hard. A marriage is more important to God than a child. Be careful as
he could take Andrew away from both of us. When the Jews crucified Jesus, they
said let his blood be on our hands. Look at how hard the Jews have had it! I
fear for you. My Mom said something similar about my Dad during their divorce.
Two years later she died of cancer. What if [A.M.W.] died? God will teach you
wheather [sic] you want to be taught or not. I don’t know if you really accept
Christ as your savior. I pray you did! But if you did please pray. Please pray
about this for your own protection too. God uses our children to teach us Amy!
The Bible talks about a mother or father loving a child more than him! If you do
he may take him. You don’t want God to jump on you. What would you do if
[A.M.W.] gets sick or hurt. Maybe he dies! Remember what you said? It [sic] on
my hands. Be careful about such things. He loves you and will punish you too.
(D.E. 6 at p. 4 in Cr. 08-0400(PG)).

Civil No. 13-1448(PG)

Page 5

relation), 1473 Tuscola Rd, Clio, Michigan 48420, and containing the
following threat to injure A.W. and their son A.M.W.4 in violation of Title
18, United States Code, Section 876(c). (D.E. 6 at p. 4-6 in Cr. 080400(PG)).
On December 5, 2008, Petitioner’s Arraignment Hearing was held5, (D.E.
9 in Cr. 08-0400 (PG)).
On December 5, 2008, J. Walker’s Bail Hearing was held.

Petitioner

was ordered detained pending trial for being a risk of flight and a danger
to the community, (D.E. 10 in Cr. 08-0400(PG)).

4

If a man or woman would have done what my wife and brother did to me, I
would have killed them. I would love to bounce things off you before I act on
them but! [sic] (emphasis in original) I need to ask you if you would feel
compelled to tell the police if you knew I was going to violate the law? If I
did violate the law would you inform on me? If the answer is yes, I guess that
will illiminate [sic] much of what I wanted to ask you! I have met a lot of
people in Prison. Most are Catholics. They are funny, they have tattoo of
Jesus...They will go kill someone for a thousand dollars. I would love to talk
about what I have been thinking about doing, but need an answer from you first!
What I am doing may fall under the realm of tempting GOD! But what are you
suppose [sic] to do when he won’t answer you? I met a man here, probably 65 or
70 years old. Very small and thin. Seemed to be by himself a lot, like me.
Because I don’t speak Spanish, I sit alone a lot. Anyway, I gave him a cookie
one day and shook his hand and said hello. He smiled back. For the next two
weeks I shared my food with him and smiled at him. The other prisoners always
watched me when I talked to him and talked among themselfs [sic] about it. I
didn’t know why until last week. This man is like a Godfather of some big gang
or some organization. The other prisoners had to get permission to approach him,
but I was to [sic] stupid to know. A few days ago a guy told me who he was and
that he was responsible for killing almost 100 people and I should be careful
not to piss him off. WOW! I just continued to be nice to him. Then two young men
that spoke broken English approached me and asked me why I was there. How long I
had to be there and all that stuff. I told him about [A.W.] and [A.M.W.]- how
she worked for the head Judge there and they put me in jail to keep me from my
son. The next day they came back with another guy that asked me if my wife was
tall and had big eyes. I said yes! He asked if she worked for Judge Fusté. Again
I said yes! This next week or this week the old guy came to me alone with some
pictures of [A.W.] and [A.M.W.]. He asked me if that was my wife! I said yes. He
then asked me through his young guys if I wanted her killed. I didn’t know what
to say! I was so surprised! I smiled and laughed. He smiled back and nodded his
head at me. I don’t know if I said yes to him or not? This world here is like
the movies, life death killing is so normal to them. See what a little kindness
gets you - a free killing (Just Joking).(D.E. 6 at p.5-6 in Cr. 08-0400(PG)).
5

At said hearing counsel for J. Walker presented a verbal motion requesting
defendant’s case be transferred to a different venue. The Court denied the
motion without prejudice and recommended the same be presented before the
presiding judge, (D.E. 9 in Cr. 08-0400(PG)).

Civil No. 13-1448(PG)

Page 6

On March 24, 2009, Petitioner, acting pro se, filed a Motion to
Appoint New Counsel6, (D.E. 19 in Cr. 08-0400(PG)).
On March 30, 2009, the Hearing for Appointment of New Counsel was
scheduled.

The same was not held because Petitioner refused to leave MDC

Guaynabo on said date to attend his Court hearing, (D.E. 21 in Cr. 080400(PG)).
On June 2, 2009, the government filed its Motion Under Rule 404(b)
Disclosure, (D.E. 29 in Cr. 08-0400(PG)).
On June 10, 2009, J. Walker filed, pro se, a letter in which he
requested a change of venue7, (D.E. 31 in Cr. 08-0400(PG)).
On

June

12,

2009,

Petitioner,

through

his

counsel,

filed

his

Opposition to the Introduction of 404(b) Evidence in the Government’s Case
in Chief, (D.E. 33 in Cr. 08-0400(PG)).
On June 16, 2009, the Court entered a Sealed Order which related to
Petitioner’s previously filed letter (D.E.31 in Cr. 04-0400(PG)).

In said

Order the Court stated its reasoning for not recusing itself, clarified
Petitioner’s misconceptions about personal and professional relationships
amongst court employees and order AFPD Irizarry to file her position on the
matter, (D.E. 37 in Cr. 08-0400(PG)).
On June 22, 2009, A.F.P.D. Irizarry filed her Motion in Compliance

6

J. Walker did not provide an explanation as to why he was requesting new
counsel. The record reflects that from the outset of Petitioner’s case he was
represented by Assistant Federal Public Defender Yazmin Irizarry.
7

Although the letter was sealed by the Court, the crux of the request was
that J. Walker believed he could not get a fair trial before this Court due to
his wife being an employee of the court. He extended his concern to his
attorney whom he claimed had a personal and working relationship with his wife.

Civil No. 13-1448(PG)

Page 7

with the Court’s Order of June 16, 20098, (D.E. 40 in Cr. 08-0400(PG)).
On July 8, 2009, Petitioner, through his counsel, filed a Motion for
Change of Venue9, (D.E. 51 in Cr. 08-0400(PG)).
On July 16, 2009, the government filed its Response in Opposition to
Defendant’s Motion for Change of Venue, (D.E. 61 in Cr. 08-0400(PG)).
On July 27, 2009, Petitioner, through his counsel, filed Motion
Requesting Guardian Ad Litem for the minor A.M.W.10 (D.E. 69/71 in Cr. 080400(PG)).
On July 28, 2009, the government filed its Response in Opposition to
the Appointment of a Guardian Ad Litem, (D.E. 70 in Cr. 08-0400(PG)).
On July 29, 2009, the government filed a Supplemental Motion to its
original Opposition to the Appointment of a Guardian Ad Litem, (D.E. 72 in
Cr. 08-0400(PG)).
On July 31, 2009, a Status Conference was held.

During said Status

Conference the Court denied Petitioner’s request for Change of Venue as
well as Petitioner’s request for an Appointment of a Guardian Ad Litem,

8

In her motion, A.F.P.D. Irizarry responded to J. Walker’s allegations as
to her and the F.P.D’s Office personnel relationship (friendship) with the
victim Amy Walker and her male friend who is also a court employee. Contrary to
J. Walker’s allegation, counsel left no doubt that all of the F.P.D.’s personnel
including herself have had a professional working relationship with A.W., as she
is a court reporter in the district and with her male friend who works on
audio/visual matters in the district. Counsel further informed that she had
discussed with Petitioner the filing of a change of venue and recusal of the
F.P.D. as his counsel and advised that she would not file said motion unless
Petitioner could provide details as to his allegations. Counsel instructed J.
Walker to file said request in pro se form if he felt it necessary to inform the
court, (D.E. 40 at p. 2 in Cr. 08-0400(PG)).
9

Counsel premised the request on the argument that based on the overall
circumstances of the case and its participants, the same would inevitably create
the appearance of impropriety and of a potential injustice, (D.E. 51 at p.2-3 in
Cr. 08-0400(PG)).
10

The case docket reflects that docket entry 69 was filed in error for it
lacked certificate of service. The same document with the certificate of
service was re-filed on July 29, 2009, and entered as docket 71.

Civil No. 13-1448(PG)

Page 8

(D.E. 82 in Cr. 08-0400(PG)).
On August 3, 2009, J. Walker’s trial started, (D.E. 98 in Cr. 080400(PG)).
On August 4, 2009, J. Walker’s second day of trial was held.

Outside

the presence of the jury the Court ruled on D.E. 29, the use by the
government of 404(b) evidence.

The Court made specific findings as to each

prior bad act the government wished to introduce in its case in chief
before either granting or denying their use, (D.E. 100 in Cr. 08-0400(PG)).
On August 18, 2009, Petitioner, through his counsel, filed a motion
requesting Hon. Judge John A. Gadola be allowed to testify on that same day
by phone or video conference, (D.E. 119 in Cr. 08-0400 (PG)).

The motion

was denied, (D.E. 122 in Cr. 08-0400(PG)).
On August 20, 2009, after twelve (12) days of trial, the jury reached
a verdict, (D.E. 125 in Cr. 08-0400(PG)).

J. Walker was found guilty on

counts one (1), three (3), four (4), eight (8), eleven (11) and thirteen
(13).

Petitioner was found not guilty on counts two (2), five (5), six

(6), seven (7), nine (9), ten (10) and twelve (12), (D.E. 127 in Cr. 080400(PG)).
On December 11, 2009, Petitioner’s Pre Sentence Report was submitted,
(D.E. 157 in Cr. 08-0400(PG)).
On December 14, 2009, the government filed its Sentencing Memorandum,
(D.E. 158 in Cr. 08-0400(PG)).
On December 15, 2009, J. Walker, through his counsel, filed Objections
to the Pre Sentence Report, (D.E. 159 in Cr. 08-0400(PG)).
On December 16, 2009, J. Walker’s Sentencing Hearing was held.
Petitioner was sentenced to a term of imprisonment of sixty (60) months as
to count one (1); a term of imprisonment of sixty (60) months as to counts

Civil No. 13-1448(PG)

Page 9

three (3), four (4), eight (8) and eleven (11) to be served concurrently
with each other, but consecutively to the sentence imposed in count one
(1); and a term of imprisonment of seventeen (17) months as to count
thirteen (13), to be served consecutively to all counts for a total term of
imprisonment of one hundred and thirty seven (137) months.

A term of

Supervised Release of three (3) years was imposed as to all counts to be
served concurrently with each other and a Special Monetary Assessment of
one hundred (100) dollars was imposed as to each count for a total of six
hundred (600) dollars, (D.E. 163 in Cr. 08-0400(PG)).
On December 18, 2009, Petitioner’s Judgment was entered, (D.E. 165 in
Cr. 08-0400(PG)).
On December 23, 2009, J. Walker filed Notice of Appeal, (D.E. 166 in
Cr. 08-0400(PG)).
On November 23, 2011, the First Circuit Court issued its Opinion and
Order affirming J. Walker’s conviction and sentence, United States v.
Jeffrey Martin Walker, 665 F.3d 212 (1st Cir. 2011).
On June 4, 2012, the Supreme Court denied J. Walker’s Petition for
Certiorari, Walker v. United States, 132 S.Ct. 2713(2012).

Pursuant to

AEDPA’s statute of limitations, J. Walker had one (1) year as of June 4,
2012 to file a timely 2255 Petition for relief.

Petitioner signed his

Petition on May 29, 2013, and thus, the same is timely.
II. DISCUSSION
In his original 2255 Petition (D.E. 1), J. Walker raised the following
allegations of ineffective assistance of counsel:
(1) Trial counsel rendered ineffective assistance of counsel for
failure to object to duplicitous Indictment.
(2) Trial counsel rendered ineffective assistance of counsel for

Civil No. 13-1448(PG)

Page 10

failure to challenge the Indictment as multiplicitous.
(3) Trial counsel was ineffective in allowing the erroneous admission
of evidence and highly prejudicial testimony.
(4)

Trial

counsel

was

ineffective

in

not

requesting

cautionary

instructions concerning the artificial inflation of A.W.’s credibility
due to her position at the Courthouse.
(5) Trial counsel rendered ineffective assistance of counsel in her
failure to file a motion to withdraw as counsel and not informing the
court that she knew the victim and worked with her on a daily basis.
(6) Trial counsel was ineffective when she failed to move for a
mistrial when the jury saw Petitioner in handcuffs.
(7) Trial counsel was ineffective when she failed to move for a
mistrial immediately after viewing the jurors repeatedly referring to
a Spanish/English dictionary throughout the trial.
(8) Trial counsel was ineffective when she failed and/or refused to
subpoena appropriate computer records.
(9) Trial counsel was ineffective when she failed and/or refused to
place the defense’s most important witness on the defense witness
list.
(10) Trial counsel was ineffective when knowing that the Indictment
was duplicious and multiplicious and failed and/or refused to object
to said errors, or to preserve these issues for an appeal.
In addition J. Walker makes the following claims:
(11) Claim of actual innocence.
(12) Petitioner was subjected to excessive punishment outside the
original guideline range calculated and recommended.
J. Walker also filed an Amended Petition Pursuant to Section 2255

Civil No. 13-1448(PG)

Page 11

(D.E. 31) and raised the same allegations as in his original petition and
added the following ones:
(13)

Trial

counsel

was

ineffective

for

failing

to

object

to

inaccuracies contained in the Pre Sentence Report.
(14) Counsel was ineffective for failing to advise J. Walker of any
plea

offer

of

the

government

and/or

by

failing

to

seek

plea

negotiations.
Before this Court addresses all fourteen (14) allegations raised by
Petitioner, it will list some of the factual findings as determined by the
First Circuit Court of Appeals in its opinion of United States v. Jeffrey
Martin Walker, 665 F.3d 212 (1st Cir. 2011).

This cumbersome task is

necessary because several of the allegations raised by J. Walker in his
2255 Petition have been previously disposed of or discussed by the First
Circuit Court in its opinion.

J. Walker has astutely framed many of his

arguments in a wording that is not quite the same as the arguments he
raised on appeal and were disposed of, which would render them barred from
bringing them before this Court.

This Court is not fooled and will gladly

go through the painstaking task of highlighting salient points of the First
Circuit’s opinion.
•

The appellant and his wife, Amy Walker, lived together with
their pre-teen son, A.M.W., until their relationship soured.
Walker at 220.

•

As the rift between the spouses deepened, Amy began receiving
harassing and threatening e-mails. These communiqués were laced
with derogations such as “whore” and “bitch” and contained
threats to harm Amy if she continued her battle for custody.
Walker at 221.

Civil No. 13-1448(PG)

•

Page 12

Although the emails originated from A.M.W.’s e-mail account,
A.M.W. testified that his father had composed them. Walker at
221.

•

Around

this

same

time

the

appellant

threatened

to

“blow

[A.M.W.’s} head off” with a shot gun. The appellant’s brother,
Jack, heard the threat and called the police.

Alarmed by this

development, Amy flew to Michigan and succeeded in obtaining a
custody order from the court there.

The Michigan court allowed

Amy and her son to reside in Puerto Rico after Amy’s supervisor
at work, Chief Judge José Fusté of the United States District
Court for the District of Puerto Rico offered assurances that
Amy would return to Michigan should subsequent proceedings
require her presence. Walker at 221.
•

Amy surreptitiously used her knowledge of his [Petitioner’s]
password to monitor his e-mails. She learned that the appellant
had contacted a militaristic website asking for pointers on
wielding a knife in close combat. Walker at 221.

•

Other actions during this period demonstrated the appellant’s
increasing desperation.

In the spring 2008, he engaged in an

extended correspondence with a private investigator in Puerto
Rico. Appellant wanted help in learning where his wife and son
were living. Walker at 221.
•

In April [2008], the appellant telephoned Amy’s sister and
described in gruesome detail how he would murder both his wife
and his son if he lost the ongoing custody battle. Walker at
221.

•

Appellant engaged in a long online chat with a counselor at New

Civil No. 13-1448(PG)

Hope ministries, a Christian counseling center.

Page 13

During this

chat, he expressed his resolve to harm Amy and stated that he
could have her killed for “a few hundred dollars.” Walker at
221.
•

The day before he made these statement, the appellant had
purchased a one-way airline ticket to Puerto Rico. Walker at
221.

•

While incarcerated, the appellant composed a letter to Amy,
exhorting her to pray lest God harm her or A.M.W. Walker at 222.

•

The appellant also wrote to one Tony Walker (a friend, but not
a relative) about a fellow inmate’s offer to kill Amy for him11.
Walker at 222.

•

The crux of this contention [change of venue] is that it was
unfair to try him in the same courthouse where Amy worked as a
court reporter. Walker at 222.

•

He [Petitioner] muses that the jurors may have given extra
credence to Amy’s testimony because of her position and because
of testimony that Judge Fusté (then the chief judge of Puerto
Rico’s federal district court) had “vouched” for Amy in the
Michigan custody proceedings and had encouraged her to contact
the FBI when she learned of the appellant’s plane trip to Puerto
Rico. Walker at 222.

•

The mere fact that the victim of a crime is a court employee in
the district is not, in and of itself, a reason sufficient to
compel a transfer of venue. Walker at 223.

11

At that time J. Walker was incarcerated in the state jail of Puerto Rico
pursuant to a criminal contempt charge.

Civil No. 13-1448(PG)

•

Page 14

The appellant tries a variation of this theme. He says that
Amy’s status as a court employee, coupled with the testimony
about the chief judge’s intervention and ongoing advice, biased
the jury against him. Walker at 223.

•

This case was not about the chief judge, who neither presided
over the trial nor appeared as a witness. Walker at 223.

•

To

bare

essence,

the

claim

of

jury

prejudice

is

composed

entirely of speculation and surmise. Walker at 223.
•

To cinch matters, a fair trial was possible in Puerto Rico, and
the jury’s careful picking and choosing among the counts charged
is a strong indication that the appellant received one. Walker
at 224.

•

[404(b) evidence] evidence that the appellant’s estranged wife
and son had witnessed him uttering threats and engaging in
violence was specially relevant to show the reasonableness of
their apprehension of harm when the appellant after making a
series of menacing statements, departed abruptly for Puerto
Rico. Walker at 229.

•

In

the

grand

scheme

of

things,

the

challenged

testimony

constituted a tiny part of the government’s case [testimony of
Tony Walker].

It is wildly implausible that the jury would have

reached a different conclusion about the appellant’s intent in
the absence of this testimony. Walker at 230.
•

Amy’s testimony that he [Petitioner] “had threatened to kill
[A.M.W.] and then himself” was not heresay: Amy gave it in
response to a question that asked for her personal knowledge.
Walker at 231.

Civil No. 13-1448(PG)

•

Page 15

The usual rules of evidence do not pertain at sentencing.
Rather, the district court may base sentencing determinations on
any evidence that it reasonably finds reliable. Walker at 232.

•

The court’s corollary finding that the appellant should have
known that his pre-teen son was virtually powerless to fend off
or prevent the stalking is equally beyond reproof.

Minors are

often regarded as especially vulnerable victims. Walker at 233.
•

The court departed upward by two levels for unusual seriousness
of the interstate stalking crime.
the

CHC

from

I

to

IV

to

It simultaneously increased

represent

more

accurately

the

appellant’s criminal past. These departures elevated the GSR to
110 to 137 months, the court sentenced the appellant at the top
of his reconstructed range.
•

Walker at 233.

In determining that the interstate stalking offense was so
serious as to take it out of the heartland, the sentencing court
gave weight to the number and horrific nature of the appellant’s
threats, the length of time over which the threats were made,
and the meticulousness of the appellant’s plotting.

Walker at

233.
•

By like token, the sentencing court’s determination that the
appellant’s CHC underrepresented his criminal past was within
the encincture of its discretion. Walker at 233-234.

•

The

appellant’s

final

sentencing

challenge

substantive reasonableness of his sentence.
fails.

implicates

the

This challenge

The appellant committed a litany of serious crimes, and

the aggravating factors are many and varied.

Walker at 234.

Civil No. 13-1448(PG)

Page 16

A. 28 U.S.C. Sec. 2255 standards and exhaustion requirements
Title 28 U.S.C. Sec. 2255 allows a federal prisoner to move the court
to vacate, set aside, or correct his sentence if one of the following
events happens:
1.

the sentence was imposed in violation of the Constitution or
laws of the United States;

2.

the court was without jurisdiction to impose the sentence;

3.

the sentence was in excess of the maximum authorized by law; or,

4.

the sentence is otherwise subject to collateral attack.

When a prisoner files a motion for relief pursuant to section 2255, the
court may dismiss the motion without an evidentiary hearing if “the motion
and the files and records of the case conclusively show that the prisoner
is entitled to no relief.” 28 U.S.C.A. § 2255(b).
It is well settled law that a section 2255 motion is not a substitute
for an appeal.

Therefore, the defendant must first raise his claims on

direct appeal before bringing the claim in a section 2255 motion. United
States v. Essig, 10 F.3d 968 (3d Cir 1993).

If a defendant fails to

preserve his claim on direct appeal a court may not consider the claim in
a subsequent section 2255 motion, unless the defendant can establish “cause
and prejudice”, United States v. Frady, 456 U.S. 152, 167 (1982); or a
“fundamental miscarriage of justice”. Murray v. Carrier, 477 U.S. 478, 496
(1986).

The exception to this exhaustion requirement is the allegation of

ineffective assistance of counsel which may be brought for the first time
in a section 2255 motion.
Furthermore, it is a clear set rule that claims which have been
previously settled on direct appeal, are barred from being revisited
through collateral proceedings. Withrow v. Williams, 507 U.S. 680 (1983).

Civil No. 13-1448(PG)

Page 17

Claims that have been previously addressed on direct review, may not be readjudicated

collaterally

under

section

2255

absent

equitable

considerations, such as innocence or cause and prejudice. Berthoff v.
United States, 308 F.3d 124 (1st Cir. 2002).
As the record reflects and the First Circuit Court set forth in
detailed fashion, the allegations enumerated in this Opinion and Order as
numbers three (3) and twelve (12) were already addressed by the First
Circuit Court in Petitioner’s appeal. As such, J. Walker is precluded from
presenting them in his current 2255 Petition and consequently they will not
be entertained by the Court.

Therefore allegations three (3) and twelve

(12) are hereby DISMISSED.
The Court now turns to the remaining allegations of ineffective
assistance of counsel.
B.

Claim of Ineffective Assistance of Counsel
The standard for an ineffective assistance of counsel claim is whether

counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied upon as having produced a just
result Strickland v. Washington, 466 U.S. 668 (1984); Lema v. United
States, 987 F.2d 48 (1st Cir. 1993). In order to succeed in a claim of
ineffective assistance of counsel, J. Walker must show both incompetence
and prejudice: (1) Petitioner must show that counsel’s representation fell
below an objective standard of reasonableness, and (2)

that there is a

reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different, Argencourt v. United
States, 78 F.3d 14 (1st Cir. 1996), Darden v. Wainwright, 477 U.S. 168
(1986), Lockhart v. Fretwell, 506 U.S. 364 (1993).
Petitioner bears a “very heavy burden” in his attempt to have his

Civil No. 13-1448(PG)

Page 18

sentence vacated premised on an ineffective assistance of counsel claim,
Argencourt v. United States, 78 F.3d 14,16 (1st Cir. 1996); Lema v. United
States, 987 F.2d 48, 51 (1st Cir. 1993).

Even more so under Strickland

standard, “only where, given facts known at the time, counsel’s choice was
so patently unreasonable that no competent attorney would have made it.”
United States v. Rodriguez, 675 F.3d 48, 56 (1st Cir. 2012), quoting Tevlin
v. Spencer, 621 F.3d 59, 66 (1st Cir. 2010), which in turn quotes Knight v.
Spencer, 447 F.3d 6, 15 (1st Cir. 2006).
In order to successfully satisfy the first prong of the Strickland
test petitioner must show that “in light of all the circumstances, the
identified acts or omissions [allegedly made by his counsel] were outside
the wide range of professionally competent assistance.” Tejada v. Dubois,
142 F.3d 18, 22 (1st Cir. 1998) (citing Strickland 466 US. at 690).
Petitioner must overcome the “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Smullen
v. United States, 94 F.3d 20, 23 (1st Cir. 1996) (citing Strickland at 689).
Finally, a court must review counsel’s actions deferentially, and should
make every effort “to eliminate the distorting effects of hindsight.”
Argencourt v. United States, 78 F.3d at 16 (citing Strickland 466 U.S. at
689).
The second prong of the Strickland test, the element of prejudice,
also sets the bar high.

“An 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.” Argencourt v.
United States, 78 F.3d at 16 (citing Strickland, 466 U.S.

at 691).

Petitioner must “prove that there is a reasonable probability that, but for
his

counsel’s

errors,

the

result

of

the

proceeding

would

have

been

Civil No. 13-1448(PG)

Page 19

different.” Knight v. United States, 37 F.3d 769, 774 (1st Cir.1994) (citing
Strickland, 466 U.S. at 687).
This means that if petitioner is successful in showing deficiencies
in his counsel’s representation, he then must conclusively establish that
those deficiencies led to a real prejudice against him in the criminal
proceedings. Id. at 694.

J. Walker has failed to meet the Strickland

standard in all of his claims.

Ineffective Assistance of Counsel - Trial Counsel rendered ineffective
assistance of counsel for failure to object to duplicitous Indictment
J. Walker’s first allegation of ineffective assistance of counsel
relates to the interstate stalking count.
with

stalking

both

his

ex-wife

Amy

Count one charged Petitioner

Walker

and

their

son

A.M.W..

Petitioner’s contention is that since he was charged with stalking two
separate victims in the same count, the count has to be duplicious.
Counsel was thus ineffective in her failure to object to the count itself,
in her failure to request a unanimity instruction.
A duplicitous indictment is one that “joins in a single count... two
or more distinct and separate offenses.” United States v. Newell, 658 F.3d
1, 23 (1st Cir. 2011) (quoting United States v. Canas, 595 F.2d 73, 78 (1st
Cir. 1979)).

If it is determined that an indictment has a duplicitous

count then a specific unanimity instruction must be given. Newell at 23.
In order for Petitioner to prevail in his claim of ineffective
assistance of counsel under Strickland, he must be able to establish that
counsel’s failure to argue duplicitous indictment was a sound strategy at
the time and that if she had so done, she would have prevailed; and there
is a reasonable probability that the outcome as to count one (1) would have

Civil No. 13-1448(PG)

been different.

Page 20

J. Walker can not meet the Strickland standard.

Petitioner would like to engage the Court in a full length legal
argument as to whether count one (1) is duplicitous and thus required an
unanimity instruction. The Court won’t bite though.

For what is before the

Court is not the correctness of how the count was charged but rather
whether his counsel acted ineffectively.
Even assuming that the interstate stalking count was duplicitous for
the mere fact that it involved J. Walker’s maliciously crude stalking of
his ex wife and their son, Petitioner would still have to comply with the
second part of Strickland.

To wit, that had a unanimity instruction been

required and given it was more likely than not that his guilty verdict as
to count one would have been different.

To put it simply, that the jury

could have reasonably found J. Walker guilty as to stalking his ex wife and
not guilty as to stalking their son, or vice versa.

This second prong

Petitioner can not meet.
The evidence in this case is overwhelming.

Having gone back to the

trial transcripts and read the complete trial testimony of both Amy Walker
and the minor A.M.W., there is no doubt in the Court’s mind that even if
count one (1) were duplicitous, which it is not, the jury would have found
Petitioner guilty as to both victims even if provided with the unanimity
instruction.
The following is what the minor heard from his father, and worse, what
he truly believed:
The Prosecutor: What was he [J. Walker] saying?
The Minor: He was just saying gruesome stuff about cutting my
mom and me, stem to stern and end to end.
Puerto Rico in a box, a wooden box...

Shipping me back to

Civil No. 13-1448(PG)

Page 21

The Prosecutor: How did it make you feel when you heard your dad
say he wanted to send you back to Puerto Rico in a wooden box?
The Minor: Scared.
The Prosecutor: Did you think your dad was capable of carrying
out those threats?
The Minor: Yes.
See Trial Transcript of August 4, 2009 at p. 109-110).
Later on during the Minor’s testimony, he is asked about when he
returned to Puerto Rico with his mother and his father, Petitioner,
remained in Michigan.
The Prosecutor: When you got back to Puerto Rico did you have an
occasion to speak with your dad by phone?
The Minor: Once.
The Prosecutor: And how did that conversation go?
The Minor: He–the social services had said if he said, he could
just ask how I was but if he got into anything inappropriate my
mom was to cut him off.

He started asking me where I lived.

What’s the address and my mom took the phone away.
See Trial Transcript of August 4, 2009, at p. 116.
The Prosecutor: Since you’ve moved back to Puerto Rico, what
steps, if any, have you and your mother taken to improve your
security, your personal security?
The Minor: Cameras around the house.
The

Prosecutor:

Cameras

around

the

house.

What

else,

if

anything?
The Minor: Cameras. There are bars on the windows.
pepper spray and a taser.

We carry

Civil No. 13-1448(PG)

Page 22

The Prosecutor: When did you install the cameras?
The Minor: A few months–around the time that we thought my dad
was going to get out of jail here.
See Trial Transcript, August 4, 2009, p. 117-118).
The evidence in this case left no doubt of the overwhelming fear
Petitioner instilled in the mind of his son.

There is no doubt that once

they were physically separated, the minor in Puerto Rico and Petitioner in
Michigan, J. Walker’s stalking was relentless.

The evidence showed that in

April 2008, Petitioner telephoned his ex-wife’s sister and explained to her
in gruesome detail how he would murder both his wife and his son.

Six

months later, J. Walker purchased a one-way ticket from Michigan to Puerto
Rico, United States v. Walker, 665 F.3d at 221.
There is no doubt that based on the evidence, the jury more likely
than not would have found Petitioner guilty of interstate stalking as to
his son.
The evidence regarding the stalking by J. Walker toward Amy Walker is
even more gruesome and overwhelming. The e-mails sent by J. Walker to his
ex-wife were presented as evidence during the trial. The testimony of
Petitioner’s ex-wife lasted four (4) days and was very detailed as to her
level of fear that at any moment Petition would appear out of nowhere and
kill her.
There is no doubt in the Court’s mind that even if count one (1) were
deemed duplicitous, which it is not, and a unanimity instruction would have
been given, it is more likely than not that the jury would have found
Petitioner guilty of interstate stalking as to Amy Walker as well.
For the reasons previously stated, it is the determination of this
Court that count one (1) of the indictment is not duplicitous and even if

Civil No. 13-1448(PG)

Page 23

it were, the outcome of Petitioner’s guilty verdict would have been the
same.

Thus Petitioner is unable to meet the Strickland standard. The

allegation of ineffective assistance of counsel as to duplicity of count
one of the indictment is DENIED.

Ineffective Assistance of Counsel - Trial counsel rendered ineffective
assistance of counsel for failure to challenge the Indictment as
multiplicitous
J. Walker alleged that his counsel was ineffective in that she failed
to challenge counts two (2) through eleven (11) as being multiplicitous.
He provides no further argument on the matter nor does Petitioner cite any
case law to sustain his position.
Counts two (2) through eleven (11) charged J. Walker with separate
violations of Title 18, United States Code, Section 2261(A)(2). These were
the separate emails sent by Petitioner to his ex-wife for the period of
March 13, 2008 to April 4, 2008.

The Court notes that Petitioner was found

not guilty as to counts two (2), five (5), six (6), seven (7), nine (9) and
ten (10).
An indictment is multiplicitous and in violation of the constitutional
prohibition against double jeopardy if it charges a single offense in more
than one count, United States v. Brandon, 17 F.3d 409 (1st Cir. 1994).

The

central question is whether a jury could find that the actions in the
allegedly multiplicitous counts, viewed objectively, constituted separate
events of criminal behavior, Id.
The evidence before the Court shows separate distinct emails sent by
Petitioner through the use of his son’s email account.

Each email is sent

at a separate time, has a different subject matter, and each one is a
separate instance of J. Walker harassing and intimidating his ex-wife.

Civil No. 13-1448(PG)

Page 24

Much like in a mail fraud case, each mailing is a separate violation of the
statute. Thus, each time Petitioner sent another email, it was another
violation of the statute.

Each count charged against J. Walker required

independent proof that he had written or caused to be written the email in
question, as well as sending it. After all, just because Petitioner sent
one email didn’t mean he sent another.

In addition, the jury had to

determine if it had the intent to harass, kill or injure, the victim as to
each individual count.

Judging from the jury’s verdict, the jury viewed

each email sent individually as a separate offense.
The argument of multiplicitous indictment fails as there can not be
a valid claim of ineffective assistance of counsel for failure to raise
what would amount to a meritless argument. J.Walker’s second allegation of
ineffective assistance of counsel is DENIED.

Ineffective Assistance of Counsel - Trial counsel was ineffective in not
requesting cautionary instructions concerning the artificial inflation of
A.W.’s [Petitioner’s ex-wife] credibility due to her position at the
Courthouse
J. Walker alleged that his counsel should have asked for a cautionary
instruction as to Amy Walker’s testimony.

Petitioner argued that due to

the fact that she was a court reporter within the district, that all the
court personnel knew her, and that during the trial she kept portions of
the trial record, a cautionary instruction should have been requested and
given.
First, the issue of Petitioner’s ex-wife being a court employee was
already addressed by the First Circuit Court in its opinion and will not
and cannot be rehashed in a collateral proceeding such as this one,
Singleton v. United States, 26 F.3d 233 (1st Cir. 1994).

The mere fact that

Civil No. 13-1448(PG)

Page 25

the victim was a court employee does not per se inflate her testimony as
Petitioner suggests, Walker at 223.
As to J. Walker’s allegation that the victim participated in keeping
portions of the record, the same is false.

Petitioner has made a blatant

allegation that is neither supported by the record nor true.

The person

whom transcribed all of the trial transcripts as well as the sentencing
transcript was court reporter Yvette Richardson and the record is quite
clear as to that.

Petitioner shall refrain from making bold assertions

that are completely contrary to the record.
There is no evidence of Petitioner’s allegations as to the artificial
inflation of his ex-wife’s testimony; furthermore the premise itself is
based

on

non-existent

facts.

As

such,

Petitioner’s

allegation

of

ineffective assistance of counsel for failure to request a cautionary
instruction is DENIED.

Ineffective Assistance of Counsel - Trial counsel rendered ineffective
assistance in her failure to file a motion to withdraw as counsel and not
informing the court that she knew the victim and worked with her on a daily
basis
J. Walker claimed that his attorney was ineffective because she did
not withdraw from the case or informed the court of her professional and
personal relationship with the victim, Petitioner’s ex-wife.

Petitioner’s

meritless allegation is completely contrary to the record.
Petitioner is reminded that he himself sent a letter to the judge in
this case, then Judge Dominguez, in which he made a series of bold
allegations

as

to

the

individuals in the court.

relationships

the

victim

had

with

different

Said letter was filed by the Court motu propio

as sealed docket 31 in Cr. No. 08-0400(PG).

Civil No. 13-1448(PG)

Page 26

As a result of the letter sent by Petitioner, the court informed the
parties, the government and defense counsel, of the existence of the letter
and provided them with copies during a status conference (D.E. 32 in Cr.
08-400(PG)).

On

June 16, 2009, the Court entered a sealed order in which

it clarified the preposterous allegations made by Petitioner in his letter
and instructed defense counsel A.F.P.D. Yazmin Irizarry to respond to
Petitioner’s allegations within five (5) days12, (D.E. 37 in Cr. 080400(PG)).
On June 22, 2009, attorney filed the motion in compliance with the
Court’s order.

In said motion A.F.P.D. Irizarry left no doubt that the

allegations brought by J. Walker were not only preposterous but untrue.
A.F.P.D. left no doubt that her only interaction with the victim was when
she appeared in court as an A.F.P.D. and the victim was the court reporter.
She specifically stated that there was no personal relationship, only a
professional relationship within the context previously stated, (D.E. 40 in
Cr. 08-0400(PG)).
Once again this Court is faced with allegations brought by Petitioner
that are contrary to the record and simply not true.

If Petitioner’s

intent by so doing is to taint a record with falsities, he will not
succeed.
Petitioner’s allegations as to his counsel’s ineffectiveness for her
failure to withdraw are completely meritless and contradicted by the
record. The same are thus DENIED.

12

The allegations referred to by the Court were as to attorney Irizarry’s
professional and personal relationship with the victim.

Civil No. 13-1448(PG)

Page 27

Ineffective Assistance of Counsel - Trial counsel was ineffective when she
failed to move for a mistrial when the jurors saw Petitioner in handcuffs
Petitioner’s allegation is that his counsel was ineffective because,
according to him, jurors saw him in handcuffs and chained and his attorney
did not move for a mistrial once this happened.
J. Walker has provided no further information as to this allegation.
He has made no reference to the record when presenting it.

The Court is at

a loss as to where and when this happened or if this even happened; for the
record is void of any such incident.

“Judges are not

expected to be mind

readers. Consequently, a litigant has an obligation to spell out its
arguments squarely and distinctly, or else forever hold its peace.” RiveraGomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988).
At any rate, the mere fact that a juror or jurors saw a defendant in
handcuffs does not mean that the defendant is entitled to a mistrial,
United States v. Ayres, 725 F.2d 806(1st Cir. 1984); Dupont v. Hall, 555
F.2d 15 (1st Cir. 1977).
Petitioner’s allegation of ineffective assistance of counsel as to
failure to request a mistrial because jurors allegedly saw him in handcuffs
is DENIED.

Ineffective Assistance of Counsel - Trial counsel was ineffective when she
failed to move for a mistrial immediately after viewing the juror
repeatedly referring to a Spanish/English dictionary throughout the trial
Once more, Petitioner raised his allegation of ineffective assistance
of counsel for failure to request a mistrial.

In this instance, J. Walker

would like this Court to believe that his attorney saw members of the jury
pass amongst themselves a Spanish/English dictionary on repeated occasions
throughout his trial, thereby implying a lack of proficiency in the English

Civil No. 13-1448(PG)

Page 28

language.
Once again Petitioner makes bold allegation which he frames as actual
facts and wishes this Court to believe them.

There is not a scintilla of

evidence on the record that this incident ever occurred, not even once.
Furthermore, this Court oversaw J. Walker’s trial and did not observe at
any time members of the jury passing a dictionary amongst themselves.

In

addition, it is the practice of this Court not to allow jurors to have
notebooks or take notes during trial so the mere presence of a dictionary
or book of some sort would have been noticed immediately by the Court13.
Baseless allegations that construe facts that simply did not occur
will

not

be

tolerated

nor

entertained

by

this

Court.

Petitioner’s

allegation of ineffective assistance of counsel based on juror’s use of a
dictionary is DENIED.

Ineffective Assistance of Counsel - Trial Counsel was ineffective when she
failed and/or refused to subpoena appropriate computer records.
Petitioner alleged that his counsel failed to request subpoenas for
computer records that would have illustrated that the IP address of the
computer that was used to send the threatening emails to the victim
[Petitioner’s ex-wife] was the victim’s own computer.

Thus, it could not

have been J. Walker who sent the emails but the victim herself.
The Court is at a loss for words.

The evidence in this case clearly

an unequivocally established that all threatening e-mails sent to the
victim were done so through Petitioner’s use of his son’s computer and e13

The Court notes that in D.E. 11, United States’ Response In Opposition To
Petitioner’s Motion to Vacate Sentence, there is a footnote addressing the issue
of use of a dictionary by the jury: “In a telephone conversation held with
Walker’s lead counsel on September 5, 2013, she stated having no recollection of
the jurors’ alleged use of a Spanish/English dictionary throughout trial.” (D.E.
11 at p. 12 n. 3).

Civil No. 13-1448(PG)

mail account.

Page 29

The evidence established that J. Walker did this in order to

have his ex-wife believe that it was actually her son writing the horrific
communications.
There was no basis for counsel to request a subpoena for IP addresses
or computer records to establish the un-establishable.

The First Circuit

Court left no doubt as to this:
As the rift between the spouses deepened, Amy began receiving
harassing and threatening e-mails. These comuniqués were laced
with derogations...and contained threats to harm Amy if she
continued her battle for custody.
Although the e-mails
originated from A.M.W.’s e-mail account, A.M.W. testified that
his father had composed them.
Amy corroborated this
identification, testifying that she inferred the appellant’s
authorship from certain habitual misspellings and turns of
phrase.
Walker, 665 F.3d at 221.
Petitioner’s allegation that these failed subpoenas would have proven
his innocence is meritless and contrary to the overwhelming evidence in
this case. As a result, his allegation is DENIED.

Ineffective Assistance of counsel - Trial counsel was ineffective when she
failed and/or refused to place the defense’s most important witness on the
defense witness list
J. Walker alleged that his most important witness, a Michigan State
Judge involved in the couple’s custody case, was not able to testify at his
trial due to counsel’s unwillingness to put him on the defense witness list
and her failure to call him as a witness.
Once again the record completely contradicts Petitioner.
On August 8, 2009, Petitioner’s counsel filed a motion requesting that
Judge Gadola be allowed to testify on that same date either by telephone or
video conferencing, (D.E. 119 in Cr. 08-0400(PG)).

In said motion it is

clearly stated that this Court had allowed the testimony of the Judge as

Civil No. 13-1448(PG)

Page 30

part of the defense’s case-in-chief14.

The matter was discussed and

arguments were heard by the Court prior to the start of Trial on August 25,
200915.

The ruling of the Court was that the testimony via telephone

conference nor video conference would be allowed, however, the certified
documents from Michigan state court (defense exhibit OOO) were allowed into
evidence.

These

documents

established

that

Petitioner

was

granted

parenting rights over the minor, thus, the judge’s testimony would have
been collateral evidence.
The record clearly indicates that there was no refusal from the part
of defense counsel to bring the Michigan judge as a witness and that
counsel presented the evidence to the jury by way of a certified Michigan
state court order.

Thus, the claim of ineffective assistance of counsel as

to the testimony of the Michigan state judge is DENIED.

Ineffective Assistance of Counsel - Trial counsel was ineffective when
knowing that the Indictment was duplicitous and multiplicitous she failed
and/or refused to object to said errors, or to preserve these issues for an
appeal
Petitioner alleged that his counsel was ineffective since knowing that
the Indictment was allegedly defective she did not preserve the issue for
an appeal.

As argument to sustain his position, Petitioner relies on the

government’s brief submitted to the Supreme Court as a result of J.
Walker’s petition for certiorari.
Petitioner fails in his argument.

J. Walker assumes as fact that the

14

The record reflects that prior to requesting the testimony of the
Michigan state judge, defense counsel had attempted to admit Michigan state
court documents that allowed Petitioner to have “parenting time” with the minor
victim.(D.E. 119 at p. 2 in Cr. 08-0400(PG)).
15

See Trial Transcript of August 25, 2009, p.4-19.

Civil No. 13-1448(PG)

Page 31

indictment he was charged with was found to be either duplicitous or
multiplicitous or both.

There is nothing on the record that states this or

even implies it.
Petitioner has astutely relied on the opinion of the First Circuit
regarding this issue.

In Petitioner’s appeal’s brief, J. Walker - through

his appeal counsel - challenged the indictment and argued that the same was
duplicitous and multiplicitous.
First, he asserts that the interstate stalking count, which listed
both Amy and A.M.W. as intended victims, is duplicitous. Second, he asserts
that cyber stalking should have been charged as a single course of conduct
offense and that separating it into various counts offended the rule
against multiplicity. Walker 665 F.3d at 227.
This is the exact same argument Petitioner raised in his 2255 request
for relief but under the framework of an ineffective assistance of counsel
claim.
The First Circuit Court in its ruling as to J. Walker’s challenges to
the indictment determined that the same were too late.

“Because the

appellant did not raise either duplicity or multiplicity challenges at any
time prior to trial, he has waived those challenges.” Id. at 228.

Clearly,

Petitioner is using the First Circuit Court’s ruling to bring forth this
specific allegation of ineffective assistance of counsel.
In order for Petitioner to prevail in this claim he must comply with
the Strickland two (2) part test. J. Walker has failed at this.

He neither

presented the argument that a reasonable attorney would have submitted
these arguments nor did he provide current case law that would establish or
would sway this Court into finding that, if presented, the arguments of
duplicitous and multiplicity of the indictment would have prevailed.

Civil No. 13-1448(PG)

Page 32

What J. Walker has done is once again submitted a conclusion which he
has reached without support in the record.

In addition, Petitioner has

argued before this Court as part of his 2255 claim the reasons why he
believes the government’s brief submitted before the Supreme Court of the
United States as a result of his petition for certiorari is wrong.
argument is completely irrelevant to the matter at hand.

Said

Furthermore, the

Supreme Court, after having received both Petitioner’s and the government’s
brief, denied the request for certiorari.
Since Petitioner’s claim of ineffective assistance of counsel as to
counsel’s failure to preserve challenges to the indictment for appeal fails
to meet the Strickland standard the same is DENIED.

Arguments identified as thirteen (13) and fourteen (14) in this
opinion were alleged by Petitioner, for the first time, in his Amended 2255
Petition filed on June 2, 2014 (D.E. 31).
“Relate Back” Allegations
J. Walker filed the Amended Petition because he had previously
submitted a motion requesting that he be allowed to amend his original
petition,

(D.E.

19).

Without

waiting

for

this

Court’s

ruling,

he

submitted, together with the request to amend, a motion in which he
submitted the amendment he chose to make to his original petition, (D.E.
20).
Specifically Petitioner wanted to amend his argument as to his
sentence.

J.

Walker

re-alleged

his

argument

that

his

sentence

was

excessive based on the fact that his ex-wife worked in this court and added
that the sentence imposed by the Court was incorrect.

Petitioner alleged

that the sentence orally pronounced by the Court was different from what

Civil No. 13-1448(PG)

Page 33

appears in his Judgment.

Petitioner claimed that this Court orally

sentenced him to sixteen (16) months of imprisonment as to count one (1)
but the judgment reflected sixty (60) months of imprisonment; thus his
sentence should be amended to reflect what was stated orally, (D.E. 20 at
p. 3).
On

March

20,

2014,

this

Court

entered

an

order

finding

moot

Petitioner’s original 2255 Petition and granted J.Walker’s request to amend
the petition, (D.E. 22).

On the same day, the Court stated by means of a

separate order “the court will not consider Petitioner’s partial amendments
to be incorporated into his original motion.

A fully amended motion to

vacate shall be filed by Petitioner by no later...”, (D.E. 25).
J. Walker submitted his Amended Petition unsigned and without date.
The same was received by this Court on April 30, 2014, (D.E. 31).
In Petitioner’s Amended Petition he incorporated the addition to his
original sentencing argument and adds for the first time two (2) completely
new arguments.
The new arguments added by Petitioner were:
- Trial counsel was ineffective for failing to object to inaccuracies
contained in the Pre Sentence Report16; and
- Trial counsel was ineffective for failing to advise J. Walker of any
plea

offer

of

the

government

and/or

by

failing

to

seek

plea

negotiations.
In order for this Court to consider these two new arguments which were
raised well outside the one (1) year statute of limitations for filing

16

Petitioner fails to state what inaccuracies he is referring to. J.Walker
would like this Court to entertain one liner allegations without further
substance.

Civil No. 13-1448(PG)

Page 34

Section 2255 Petitions, this Court must determine first if they relate back
to J. Walker’s original 2255 request for relief.
First, Rule two (2) of the Rules governing Section 2255 proceedings
provides that section 2255 motion: “shall specify all the grounds for
relief which are available to the movant and of which he has or, by the
exercise of reasonable diligence, should have knowledge and shall set forth
in summary form the facts supporting each of the grounds thus specified.
It shall also state the relief requested.” R. Gov. Sec. 2255 Proceedings
2(b).
Additionally, in this case the Court must also look at the application
of Federal Rule of Civil Procedure 15 as it applies to Section 2255 statute
of limitations of one (1) year, United States v. Ciampi, 419 F.3d 20 (1st
Cir. 2005).

Rule 15 allows “otherwise untimely pleadings amendments to

‘Relate back’ to the date of the timely filed original pleading provided
the claim asserted in the amended

plea ‘arouse out of the conduct,

transaction, or occurrence set forth or attempted to be set forth in the
original pleading.” Ciampi, 419 F3d. at
15(c)(2)).

23 (citing Fed. R. Civ. P.

However, “in the habeas corpus context, the Rule 15 ‘relation

back’ provision is to be strictly construed, in light of ‘Congress decision
to expedite collateral attacks by placing stringent time restrictions on
[them]’.” Id. (quoting Mayle v. Felix, 545 U.S. 644, 657 (2005)).
Therefore, new claims alleging different instances of ineffective
assistance of counsel are not part of the same conduct, transaction or
occurrence and do not relate back to the original filing of the Section
2255 petition. “If claims asserted after the one year period could be
revived simply because they relate to the same trial, conviction, or
sentence as a timely filed claim, AEDPA’s limitation period would have slim

Civil No. 13-1448(PG)

Page 35

significance.” Mayle, 545 U.S. 662.
In the case before the Court, allegations thirteen (13) regarding
inaccuracies in the Pre Sentence Report and allegation fourteen (14)
regarding failure to seek a plea offer were not addressed by Petitioner in
his original filing or in his request to amend.
mentioned.

The matters were not even

J. Walker’s previous filings do not question the Pre Sentence

Report nor do they even mention a plea negotiation. To the contrary,
Petitioner

continues

to

assert

his

innocence.

As

such,

the

two

(2)

allegations do not relate back to the original timely-filed 2255 Petition
and are thus time barred.

This Court can not consider claims that are

filed for the first time beyond the one (1) year period allowed for their
filing. As such, allegations of ineffective assistance of counsel thirteen
(13) and fourteen (14) are DENIED17.
Sentencing Error
In the Amended Petition, J. Walker included the argument that the
verbal sentence given by the Court as to count one (1) was different from
what is stated in the Judgment, and thus, his sentence for count one (1)
should be corrected to sixteen (16) months rather than what the judgment
states, sixty (60) months.
A review of the sentencing hearing transcript indicated that the
sentence as to count one (1) was transcribed by the court reported as
sixteen (16) months rather than sixty (60) months.
17

This is made extremely

The Court however notes that a review of the Sentencing Hearing
transcript, December 16, 2009, clearly attests to the fact that Petitioner’s
counsel vigorously objected to findings contained in the Pre Sentence Report.
Furthermore, D.E. 16 in Cr. 08-0400(PG), Minutes of Status Conference indicates
that Petitioner’s counsel made a formal request for a plea offer to the
government. Given the adamant stance of J. Walker as to his innocence in this
matter it is highly improbable that Petitioner would have agreed to plead
guilty. Petitioner has presented zero supporting evidence to sustain this
claim.

Civil No. 13-1448(PG)

Page 36

clear by the fact that further along in the paragraph, Petitioner’s total
sentence was stated as being one hundred and thirty seven (137) months,
(Sentencing Hearing Transcript, December 16, 2009, at p. 58).
The Court will not allow Petitioner to take advantage to what is
clearly a typographical error in order to reduce improperly his term of
imprisonment.

Petitioner’s argument is DENIED.

Claim of Actual Innocence
J. Walker alleged that he is completely innocent of the charges
relating to him sending the threatening e-mails to his ex wife.

He based

this claim of actual innocence on Petitioner’s theory that it was the
victim herself who, with the use of Petitioner’s user name and password
sent the e-mails to herself18.

J. Walker theorized that the victim did this

in order “to rid herself of him for good.”(D.E. 1 at p. 8).
The Court finds this allegation completely ludicrous.

Nevertheless

the Court will state its reasoning for the denial.
The Supreme Court has emphasized that the actual innocence exception
is very narrow, reserved for truly exceptional cases, Walker v. Russo, 506
F.3d 19, 21 (1st Cir.2007), (citing Murray v. Carrier, 477 U.S. 478, 496
(1986)).

Actual

innocence

means

“factual

innocence,

not

mere

legal

insufficiency,” Bousley v. United States, 523 U.S. 614, 623-624 (1998),
United States v. Barrett, 178 F3d. 34, 57 (1st Cir.1999).

In order to

succeed, the petitioner “must establish that, in light of new evidence, ‘it
is

more

18

likely

than

not

that

no

reasonable

juror

would

have

found

Petitioner is reminded that the evidence presented at trial, accepted by
the jury through a guilty verdict and affirmed by the First Circuit Court on
appeal, clearly established that the emails were sent by J. Walker using the
email account of his son. Thus, the emails in question were not sent with the
use of either Petitioner’s username or his password.

Civil No. 13-1448(PG)

Page 37

petitioner guilty beyond a reasonable doubt.” Barreto-Barreto v. United
States, 551 F.3d 95, 102 (1st Cir. 2008) (quoting House v. Bell, 547 U.S.
518, 536-537 (2006)).
In

this

case,

Petitioner

fails

to

meet

his

burden

of

factual

innocence. J. Walker has not presented any new evidence that would sustain
his claim of innocence.

What he has done is state a farfetched theory as

to who sent the threatening e-mails.
the evidence in this case.

A theory that completely contradicts

Petitioner’s claim of actual innocence is

DENIED.
The Court has gone over every allegation presented by Petitioner in
all of his filings.

The Court did not need to do this but has chosen to do

so in order to leave absolutely no doubt in J. Walker’s mind of his guilt
of what can only be construed as a machiavelic attempt to scare and
threaten those whom he was supposed to love and protect.
This Court presided over Petitioner’s trial and heard first hand from
both victims the crude details of Petitioner’s failed attempts to destroy
not only the relationship between a mother and child but to destroy their
feeling of safety as well.
The Court has taken the time to meticulously address every allegation
raised.

There is absolutely no doubt that J. Walker was represented at all

stages of the case by competent counsel whom did her best in a challenging
case.

There was no ineffective assistance of counsel. The evidence against

Petitioner was overwhelming and there can be no doubt as to Petitioner’s
guilt.

Simply put, J. Walker must now face the consequences of his

deliberate actions.
Evidentiary hearing
Petitioner has requested an evidentiary hearing. Because J. Walker has

Civil No. 13-1448(PG)

Page 38

failed to raise any cognizable issue under section 2255, his request for an
evidentiary hearing is DENIED.
Evidentiary hearings in section 2255 cases are the exception, not the
norm, and there is a heavy burden on the petitioner to demonstrate that an
evidentiary hearing is warranted. Moreno-Morales v. United Sates, 334 F.3d
140 (1st Cir. 2003).

An evidentiary hearing “is not necessary when a

section 2255 petition is inadequate on its face, or although facially
adequate, is conclusively refuted as to the alleged facts by the files and
records of the case.” United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir.
1978).
Such is the case of J. Walker’s section 2255 petition insofar as it
is simply unsupported by the facts and evidence in the record of this case.
III. CONCLUSION
For the reasons stated, the Court concludes that Petitioner JEFFREY
MARTIN WALKER is not entitled to federal habeas relief on the claims
raised. Accordingly, it is ordered that petitioner JEFFREY MARTIN WALKER’S
request for habeas relief under 28 U.S.C. Sec. 2255(D.E.1) is DENIED, his
amended motion for relief (D.E. 31) is DENIED, and his Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. Sec. 2255 is DISMISSED WITH
PREJUDICE.

Petitioner’s request for evidentiary hearing is also DENIED.
IV. CERTIFICATE OF APPEALABILTY

For the reasons previously stated the Court hereby denies Petitioner’s
request for relief pursuant to 28 U.S.C. Section 2255.

It is further

ordered that no certificate of appealability should be issued in the event
that Petitioner files a notice of appeal because there is no substantial
showing of the denial of a constitutional right within the meaning of 28
U.S.C. 2253(c)(2).

Civil No. 13-1448(PG)

Page 39

IT IS SO ORDERED.
In San Juan, Puerto Rico, August 20, 2015.

S/JUAN M. PEREZ-GIMENEZ

JUAN M. PEREZ-GIMENEZ
UNITED STATES DISTRICT JUDGE