United States v. Vallare
| Docket Number | CRIMINAL 5:17-CR-547 (RCL) |
| Decision Date | 21 June 2023 |
| Parties | UNITED STATES OF AMERICA, v. ELTON VALLARE, Defendant. |
| Court | U.S. District Court — Western District of Texas |
In 2017, defendant Elton Vallare was charged with five federal crimes related to his receipt, possession, and distribution of child pornography. Indictment, ECF No. 13. After ending relationships with four court-appointed attorneys, Mr Vallare represented himself at trial, supported by standby counsel from the Office of the Federal Public Defender (“FPD”). In 2020, a jury convicted Mr. Vallare of all five charges. Jury Verdict, ECF No. 161. This Court sentenced Mr. Vallare to a total of 240 months of imprisonment, followed by ten years of supervised release. J., ECF No. 191. Mr. Vallare appealed his conviction and the U.S. Court of Appeals for the Fifth Circuit affirmed. United States v. Vallare, 842 Fed. App'x 953 (5th Cir. Apr. 8, 2021). Mr. Vallare further appealed to the Supreme Court, though he later voluntarily dismissed his petition for certiorari. See Vallare v. United States, 142 S.Ct. 577 (Dec. 3, 2021).
Mr Vallare now moves pro se in this Court to vacate set aside, or correct his sentence under 28 U.S.C. § 2255. Def.'s Mot., ECF No. 246. The government opposes Mr. Vallare's motion and urges the Court to summarily deny his claims as without merit. Gov't Opp'n, ECF No. 250.
Upon consideration of the parties' filings, the applicable law, and the record, the Court will DENY Mr Vallare's § 2255 motion.
On June 14, 2017, agents from the Federal Bureau of Investigation (“FBI”) executed a search warrant on Mr. Vallare's residence. Rev. Presentence Investigation Rep. (“PSR”) ¶ 6, ECF No. 172. During the search, investigators recovered two laptop computers and an external hard drive. Id. ¶ 9, 11. A forensic review of the seized items revealed the presence of numerous video and image files depicting child pornography that were downloaded via a file sharing network, BitTorrent, between September 2014 and mid-March 2017. Id. ¶¶ 1,11. The review also determined that various files containing child pornography were distributed through the BitTorrent network between mid-February 2015 and mid-March 2017. Id. ¶¶ 1, 11. In total, the computers and hard drive contained approximately 4,700 images and 52 videos of child pornography. Id. ¶ 11. The files were downloaded from an IP address associated with Mr. Vallare's address and the BitTorrent account that downloaded and distributed the files was registered to Mr. Vallare. Id. ¶¶ 5, 10. Mr. Vallare's mother, stepfather, and uncle lived at the same address as Mr. Vallare. Id. ¶ 6.
When FBI agents arrived at Mr. Vallare's residence, his mother and stepfather informed the agents that Mr. Vallare was not present in the home. Id. However, agents discovered Mr. Vallare hiding in the closet of the home's master bedroom. Id. At that point, Mr. Vallare exited the closet, identified himself, and announced, “I think I know why you are here.” Id. At the time of the search, Mr. Vallare voluntarily told the FBI that he had not been employed for several years but that he previously worked for approximately twenty years as a contractor at U.S. military bases in Qatar and Kuwait. Id. ¶ 46. During the search, Mr. Vallare made movements toward two loaded firearms and two large dogs. Id. ¶¶ 6, 8. He appeared agitated, belligerent, and unstable. Id. ¶¶ 8, 10. Mr. Vallare was arrested the same day of the search. Id. ¶ 10.
On July 10, 2017, Mr. Vallare was charged with two counts of distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2) (Counts I and II); one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) (Count III); and two counts of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Counts IV and V). See Indictment.
Mr. Vallare, who was financially unable to obtain his own counsel, was represented by four court-appointed attorneys prior to trial. First, on the day of Mr. Vallare's arrest, the Honorable John W. Primomo appointed the FPD to represent Mr. Vallare. Order, ECF No. 5. John R. “Jack” Carter appeared to represent Mr. Vallare. Carter Not. of Appearance, ECF No. 7. In late October 2017, Mr. Carter moved to withdraw as counsel following Mr. Vallare's communicated intent to file a disciplinary grievance against him, which created a conflict of interest. Carter Mot. to Withdraw, ECF No. 26. The Honorable Elizabeth S. Chestney granted Mr. Carter's motion on October 31, 2017. Order, ECF No. 29. That same day, Judge Chestney appointed Robert F. Gebbia to represent Mr. Vallare. Order, ECF No. 30. In early August 2018, Mr. Vallare filed a pro se motion to remove Mr. Gebbia as counsel for Mr. Gebbia's alleged failure to communicate with Mr. Vallare and alleged lack of preparation. Mot., ECF No. 46. The Honorable Henry J. Bemporad held a hearing on the motion on August 14, 2018. ECF No. 49; Minute Entry (08/14/2018). That same day, Judge Bemporad granted Mr. Vallare's motion, Order, ECF No. 50, and appointed Kristen L. Mulliner as new counsel, Order, ECF No. 51. On December 26, 2018, Ms. Mulliner moved to withdraw after she accepted a new position that created a conflict of interest in her continued representation of Mr. Vallare. Mot., ECF No. 65.
The next day, Judge Bemporad granted the motion, Text Order (12/27/2018), and appointed Albert D. Pattillo, III of the FPD as counsel. Order, ECF No. 66.
In May 2019, Mr. Pattillo moved to withdraw following Mr. Vallare's communicated intent to file a disciplinary grievance against him. Pattillo Mot. to Withdraw, ECF No. 76. Following a hearing, Judge Bemporad issued an order denying the motion without prejudice. Order, ECF No. 79. In that order, Judge Bemporad advised Mr. Vallare that “[c]onsidering documents Defendant has submitted and the history of this case, it does not appear that Defendant will be satisfied with the representation of any appointed attomey[,]” that “if he wishes his current attorney to withdraw, he will have to represent himself,” and that “if Defendant wishes to represent himself, he must file a specific motion to that effect.” Id. at 1-2. In September 2019, Mr. Vallare moved to proceed pro se. Mot., ECF No. 88. Judge Bemporad held two hearings on the motion, ECF Nos. 90 & 98, before granting the motion in November 2019, Text Order (11/08/2019). Alfredo R. Villarreal of the FPD was appointed to serve as standby counsel. Villarreal Not. of Appearance, ECF No. 92. The case was transferred to the undersigned prior to trial. Order of Transfer, ECF No. 107.
In January 2020, following a four-day trial, a jury found Mr. Vallare guilty of all five counts in the indictment. See Verdict Form. The Court imposed a total of 240 months' imprisonment, a ten-year term of supervised release, a special assessment of $500, and restitution in the amount of $29,000. J. at 2-3, 6. The 240-month sentence represented the statutory maximum, though Mr. Vallare's guideline imprisonment range under the U.S. Sentencing Guidelines was up to 262 months. Sent'g Tr. 14:6-7, ECF No. 207.
Mr. Vallare appealed the Court's judgment. Not. of Appeal, ECF No. 178. This Court granted Mr. Vallare's request for representation on appeal. Order, ECF No. 190. Bradford W. Bogan of the FPD represented Mr. Vallare on appeal. See generally Def.'s Mot. On direct appeal, Mr. Vallare raised one issue: “that his two sentences for possession of child pornography on different devices-a laptop computer and an external hard drive-are multiplicitous.” Vallare, 842 Fed. App'x 953. The Fifth Circuit affirmed this Court's judgment, acknowledging, as Mr. Vallare conceded, that his argument was foreclosed by Fifth Circuit precedent. Id. (citing United States v. Planck, 493 F.3d 501, 503-4)5 (5th Cir. 2007)). Mr. Vallare filed a petition for writ of certiorari with the Supreme Court, Vallare, 142 S.Ct. 577, which was dismissed on December 3, 2021 pursuant to Mr. Vallare's motion. Id.
Mr. Vallare now moves pro se to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He argues, broadly, that his sentence must be vacated because he was denied effective assistance of counsel and because the Court both made erroneous rulings at trial and engaged injudicial misconduct. See generally Def.'s Mot. The government opposed and Mr. Vallare replied. See generally Gov't Opp'n; Def.'s Reply. His motion is now ripe for review.
As a threshold matter, Mr. Vallare's reply brief raises several new claims. Generally, “[a]rguments raised for the first time in a reply brief, even by pro se litigants are waived.” Eakin v. U.S. Dep't of Def., No. 5:16-cv-972 (RCL), 2019 WL 2368683, at *1 n.l (W.D. Tex. June 5, 2019) (quoting United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005)). Nevertheless, the court may consider an issue raised for the first time in a reply brief if it is in responding to an issue raised in the non-movant's brief. United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009). Construing Mr. Vallare's reply liberally, as this Court must, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Court finds that most of the issues raised in Mr. Vallare's reply brief either reiterate arguments raised in his initial motion or respond to claims made by the government. Therefore, the Court will consider most of the claims raised in both his motion and reply. However, the Court will not consider the following claims raised for the first time in reply, as those claims do not relate back to either his motion or the government's opposition: (1) that the government did not prove ownership of the computers...
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