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United States v. Walley

United States District Court, M.D. Florida, Tampa Division

March 28, 2018

UNITED STATES OF AMERICA
v.
RONALD O. WALLEY

          ORDER

          STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE.

         Walley moves under 28 U.S.C. § 2255 (Doc. 8) to vacate his sentence and challenges the validity of his convictions for one count of both receipt of child pornography and possession of child pornography, for which he is imprisoned for sixty months. Walley pleaded guilty without a plea agreement. The United States correctly argues that Walley's guilty plea precludes his claims and that the motion to vacate otherwise lacks merit.

I. FACTS [*]

In 2006/2007, Ronald O. Walley was identified through the course of an Immigration and Customs Enforcement operation (Project Flicker) which sought to identify individuals who had made purchases from known child pornography (CP) websites. Due to Walley's association with the Department of the Navy at the time of the purchases, NCIS assumed investigative jurisdiction.
On July 6, 2011, NCIS S[pecial] A[gent]s made contact with Walley at his residence [in] Ft. Meade, Florida, in the Middle District of Florida. The agents identified themselves as NCIS agents and advised Walley that they needed to discuss a matter with him that occurred prior to his discharge from the United States Marine Corps. Walley invited the agents into his residence to discuss the matter.
During the interview Walley advised that in 2003 while in the Marines, he had been caught looking at child pornography . . . and received counseling for it. Walley eventually admitted to currently possessing child pornography on his ASUS laptop computer. He also advised that he had a “couple hundred” child pornographic images and a “few” videos saved on his computer which he had downloaded through “Vuze, ” a peer-to-peer network. Walley advised that the images did not contain any sexual contact and were of females ranging in age from 10 and up. . . .
After being advised of his constitutional right to refuse, Walley signed a consent form and provided his ASUS laptop and Toshiba laptop computer to law enforcement. Walley advised the agents that the computers contained child pornographic images.
A subsequent forensic review of the ASUS and Toshiba revealed that Walley possessed numerous images and videos of child porn and child erotica. Most of the files were located in the “Vuze Downloads” folder and organized into subfolders by what appears to be series names. All of the images were downloaded from Vuze between September 8, 2010, and June 9, 2011, with several downloads occurring on December 7, 2010. A review of the search terms used on Walley's computers confirm that Walley was looking for child pornography. . . .
. . . .
All of the images and videos located on Walley's media were forwarded to the National Center for Missing and Exploited Children (NCMEC). NCMEC identified 1, 888 image files and 772 video files as known child erotica and child pornography containing known child victims. Many of the images/videos were created outside of the United States and outside of the state of Florida.

         Walley pleaded guilty without a plea agreement. Under the Presentence Investigation Report, Walley earned an Offense Level of 30 and a Criminal History Category I, which produces a recommended sentencing range of 97-121 months. The district court sentenced Walley to imprisonment for sixty months and to supervised release for life. In his motion to vacate Walley asserts three claims of ineffective assistance of counsel and two direct challenges to his conviction and sentence.

         II. INEFFECTIVE ASSISTANCE OF COUNSEL

         Walley asserts several claims of ineffective assistance of counsel, a difficult claim to sustain. “[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim, as Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains:

The law regarding ineffective assistance of counsel claims is well settled and well documented. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of counsel claims. According to Strickland, first, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that ...

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