United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
Petitioner Thomas Valley was convicted in 2011 of two counts of receipt of child pornography under 18 U.S.C. § 2252(a)(2). His conviction and sentence were affirmed on appeal. Now he has moved for post conviction relief under 28 U.S.C. § 2255, contending that his conviction is invalid in a number of respects. After reviewing his motion, the parties’ briefs and the record, I am denying all of his claims.
In 2010, a Wisconsin law enforcement officer discovered images of child pornography available from a particular ISP address later traced to a residence in Madison, Wisconsin, where Kay Jensen lived. In May 2011, agents obtained a search warrant from a Dane County, Wisconsin judge, for a search of the residence. When they executed the warrant on June 1, 2011, they discovered that Jensen shared her residence with her 26-year-old son, the petitioner in this motion, and his girl friend.
The officers searched Jensen’s residence for more than five hours, finding many different computers and storage devices. Petitioner remained in the residence the entire time, although the agents told him he was free to leave and never took any step to keep him from doing so. While they were there, they questioned petitioner without advising him of his Miranda rights and left him a copy of the search warrant.
In December 2011, a grand jury charged petitioner with six counts of persuading six different teenage girls to send him sexually explicit cell phone photographs of themselves, in violation of 18 U.S.C. § 2251(a). Each count carried a potential penalty of 15 to 30 years in prison. In 2012, petitioner underwent a court-ordered competency examination at his own request. Before the hearing on competency could be held, the federal defender representing petitioner was granted leave to withdraw from further representation and was replaced by new counsel, Gregory Dutch. Petitioner was found to be competent and proceedings continued.
Petitioner’s new counsel moved to quash the state court-issued search warrant and to suppress incriminating statements petitioner had made to agents during the search. Before these motions were ruled upon, petitioner entered a conditional plea of guilty on April 23, 2013, to a two-count information charging him with receiving visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). Each of the two counts carried a potential penalty of five to 20 years. As part of his plea, petitioner agreed that the conduct described in the six counts of the indictment could be considered against him in determining his sentence as if he had been convicted of the additional charges. Dkt. #72 (11-cr-133). Petitioner reserved the right to obtain rulings on his suppression motions and to appeal any that were adverse to him, id., but in the end never filed any objections to the magistrate judge’s report and recommendation. He was sentenced on August 14, 2013 to a term of 40 years (20 years on each count.)
A. Claims Raised in Motion
In his § 2255 motion, petitioner raises a host of reasons why he believes he should not have been found guilty and why he should not have received the sentence he did. In Ground One (a) and (b) of his motion, dkt. #111 (11-cr-133-bbc), petitioner alleges that his counsel misrepresented the evidence against him and induced him to plead guilty to the crime of receiving child pornography when in fact he was innocent of “knowingly” receiving child pornography. In his reply brief, dkt. #7 (15-cv-704), petitioner alleges that his counsel “suborned perjury” by advising him to state untruthfully that he knew he was going to receive child pornography and telling him that if he made such an admission he would receive a sentence of between five to 20 years. Id. at 5. In other words, petitioner has two contentions: (1) he was never provided copies of the photographs that supported the charges or even allowed to view them and his counsel misrepresented the nature of the evidence against him, telling him that the images on which the government was basing its case were depictions of minors engaging in sexually explicit conduct, when in reality they were nothing more than depictions of minors wearing sexy dresses or engaging in exotic dancing; (2) both counsel and petitioner knew that the government had not discovered sexually explicit images in their search and had none in its possession but counsel persuaded petitioner to lie about the nature of the images in order to receive a lower sentence.
Neither of these contentions stands up to examination. To believe the first one, that counsel saw the images and knew that they were not sexually explicit but told petitioner they were, requires accepting three unlikely propositions:
1. The government did not have any images recovered from petitioner’s computers on which to base the indictment and subsequent information against petitioner;
2. Defense counsel knew that the government lacked the images it said it had but lied to his client, telling him the government had these images in its possession and convincing him that pleading guilty to possession of sexually explicit images of minor girls would lead to a lower sentence; and
3. The probation office, an arm of the court, misrepresented the nature of the images when preparing the presentence report, leading the court to believe that the images the government had seized were sexually explicit images of minor girls when in fact the images ...