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Wallace v. USA

United States District Court, D. Connecticut

June 21, 2017

USA, Respondent.



         Following a three-day trial, a jury convicted Matthew Wallace of one count of receipt of child pornography and one count of possession of child pornography. The Court sentenced Wallace to 100 months of imprisonment, below the Guidelines range. The Second Circuit rejected Wallace's numerous arguments on appeal. See United States v. Wallace, 607 F.Appx. 25 (2dCir. 2015).

         Wallace has now moved pursuant to 28 U.S.C. § 2255 to vacate his sentence based on alleged ineffective assistance of counsel. Wallace raises ten separate issues in his petition, which the Court will address in turn.

         Ground One: Counsel Failed to Properly Advise Client of Plea

         To succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate that he was actually prejudiced by his counsel's unreasonably deficient performance. Strickland v. Washington, 466 U.S. 668, 688 (1984). At the plea offer stage, a defendant must show that but for the ineffective advice there is a reasonable probability that the defendant would have accepted the plea. Lafler v. Cooper, 566 U.S. 156, 164(2012).

         A defendant can demonstrate prejudice "by producing both a sworn affidavit or testimony stating that he would have accepted or rejected a plea agreement but for his counsel's deficient performance and also some additional 'objective evidence' supporting his claim." U.S. v. Frederick, 526 Fed.Appx. 91, 93 (2d Cir. 2013). This objective evidence can come, for example, in the form of a large disparity between a defendant's actual sentence and the likely sentence he would have received pursuant to the plea agreement. Id.

         Wallace argues that if he had received competent advice from counsel he would have made "a more intelligent and informed decision" to accept the plea offer instead of electing to go to trial. Nevertheless, Wallace has been unwavering in asserting his innocence, and the agreement offered by the government before trial included a potential sentence of up to 120 months in prison, large fines, and sex offender registration. Wallace's persistence in maintaining his innocence through the appeals process undercuts his position that he would have accepted such a deal, especially considering that the actual sentence imposed after trial was a below-Guidelines 100 months.

         Wallace has neither sworn that he would have accepted the government's plea offer nor presented additional objective evidence of prejudice. Moreover, Wallace indicated on separate occasions in open court that he was satisfied with his attorney's representation and that he and counsel agreed to decline the plea offer after reviewing it together. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible."). Accordingly, Wallace's plea offer claim will be denied.

         Ground Two: Counsel Failed to Properly Investigate Defense

         Wallace argues that his attorney failed to properly rebut false evidence and statements proffered at trial by the government. Wallace also faults his attorney for deciding not to put their forensic computer expert, Mr. Libby, on the stand to present his defenses. Wallace believes that if counsel had properly investigated and presented various exculpatory evidence, the result of the trial may have been different.

         The government responds that these are matters of trial strategy that are unchallengeable. See United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002) ("A failure to call a witness for tactical reasons of trial strategy does not satisfy the standard for ineffective assistance of counsel."). Similarly, "[decisions about whether to engage in cross-examination, and if so to what extent and in what manner, are ... strategic in nature and generally will not support an ineffective assistance claim." Dunham v. Travis. 313 F.3d 724. 732 (2d Cir. 2002). The government also points out that the defense was able to elicit much of the testimony that Wallace asserts was improperly withheld - for example, that the images of children were located in temporary folders and that Wallace's computer was unsecured and vulnerable to unauthorized access. The Court will not overturn Wallace's conviction based on his allegations of tactical mistakes. Accordingly, Wallace's investigation claim will be denied.

         Ground Three: Counsel Failed to Pursue Alibi

         Wallace argues that counsel failed to present two of his alibi defense witnesses: Donald Gesswin and Nigel Edgerton. The government responds that counsel did present an alibi defense through Wallace himself and through two other witnesses: his mother and his fiance. All three testified that Wallace was not at his mother's home on the day in question, so additional witnesses could have been viewed as cumulative. Moreover, Wallace admits that Gesswin, who could have testified that he and Wallace spent the day moving a washer and dryer, has a prior felony conviction for child endangerment, which counsel allegedly explained to Wallace, "might not sound good to a jury." Finally, Wallace merely spoke to Edgerton by telephone on the day in question, so it is not clear that his testimony would have been helpful to Wallace's case.

         As discussed above, tactical decisions concerning trial strategy do not constitute a basis for ineffective assistance claims. ...

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