United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON PETITIONER'S MOTION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE
W. EGINTON, SENIOR UNITED STATES DISTRICT JUDGE
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).
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.
One: Counsel Failed to Properly Advise Client of
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).
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.
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.
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.
Two: Counsel Failed to Properly Investigate Defense
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.
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
Three: Counsel Failed to Pursue Alibi
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.
discussed above, tactical decisions concerning trial strategy
do not constitute a basis for ineffective assistance claims.