United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE.
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
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
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
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.
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
INEFFECTIVE ASSISTANCE OF COUNSEL
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),
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 ...