United States District Court, D. Montana, Butte Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
W. Molloy, United States District Judge
case comes before the Court on Defendant/Movant Walter Merle
Overton's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Ovcrton is a
federal prisoner proceeding pro se.
the United States must respond, the Court must determine
whether "the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief." 28 U.S.C. § 2255(b); see also Rule 4(b),
Rules Governing Section 2255 Proceedings for the United
States District Courts. A petitioner "who is able to
state facts showing a real possibility of constitutional
error should survive Rule 4 review." Calderon v. United
States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996)
("Nicolas") (Schroeder, C.J., concurring)
(referring to Rules Governing § 2254 Cases). But the
Court should "eliminate the burden that would be placed
on the respondent by ordering an unnecessary answer."
Advisory Committee Note (1976), Rule 4, Rules Governing
§ 2254 Cases, cited in Advisory Committee Note (1976),
Rule 4, Rules Governing § 2255 Proceedings.
19, 2007, a grand jury indicted Overton on one count of using
or coercing a minor to take part in sexually explicit conduct
for the purpose of producing a visual record, a violation of
18 U.S.C. § 2251 (a) (Count 1); one count of being in
custody or control of the minor and permitting her to be
involved in Count 1, a violation of 18 U.S.C. § 2251(b)
(Count 2); one count of receipt of child pornography, a
violation of 18 U.S.C. § 2252A(a)(2) (Count 3); one
count of possession of child pornography, a violation of 18
U.S.C. § 2252A(a)(5)(B) (Count 4); and a forfeiture
count. See Indictment (Doc. 1) at 2-4. Chief Federal Defender
Anthony Gallagher was appointed to represent Overton. See
Order (Doc. 4).
trial commenced on November 5, 2007. See Minutes (Doc. 30).
Overton was convicted on all counts. See Findings and
Conclusions (Doc. 34) at 1-15.
trial, Overton moved to dismiss either Count 1 or Count 2 and
either Count 3 or Count 4 because, he argued, Counts 1 and 2
were the same offense, and Counts 3 and 4 were the same
offense. The Court held that Counts 1 and 2 were different
offenses under Blockburger v. United States, 284
U.S. 299 (1932), because each required proof of an element
the other did not. See Order (Doc. 44) at 2-5 (citing
United States v. Mickey, 367 F.3d 888, 89192 (9th Cir.
Court also found that Counts 3 and 4 were not based on one
act. Count 3 was "based on the fact that Overton
searched for child pornography on the Internet using search
words including 'teen,' and then viewed and
downloaded some of the images returned as a result of his
searches." Order (Doc. 44) at 7. Overton's
conviction on Count 4 was based in part on "his
possession of the three sexually explicit photographs that he
took." Id. "Overton saved these
photographs from a digital camera to his home computer and
then used a memory stick to transfer the images from his home
computer to his work computer and back again."
Id. Count 4 was also based in part on the fact that
Overton "created the 'F' partition on his hard
drive where he saved the images of child pornography,"
then "retained the images he viewed and downloaded on
the hard drive of his computer." Id.
Consequently, Overton's motion to dismiss was denied.
Id. at 8.
presentence report was prepared. Overton's advisory
guideline range was 188 to 235 months. Counts 1 and 2 carried
a mandatory minimum sentence of 15 years (180 months) and a
maximum of 30 years. Count 3 carried a mandatory minimum of
five years and a maximum of 20. Count 4 carried a maximum
penalty often years. See Sentencing Tr. (Doc. 59) at
10:12-22. Overton was sentenced to serve 235 months in prison
on Counts 1, 2, and 3, 120 months on Count 4, all concurrent,
and a life term of supervised release. See Minutes
(Doc. 46); Sentencing Tr. at 38:23-39:14; Judgment (Doc. 48)
appealed. He disputed the sufficiency of the evidence on
Counts 1 and 2, maintained his double-jeopardy arguments, and
challenged his sentence. On June 18, 2009, the Ninth Circuit
Court of Appeals affirmed Overton's convictions and
sentence. See United States v. Overton, 573 F.3d
679, 701 (9th Cir. 2008).
petitioned for writ of certiorari. The United States
Supreme Court denied the petition on October 20, 2009.
See Clerk Letter (Doc. 64) at 1.
conviction became final on October 20, 2009. See Gonzalez
v. Thaler, 565 U.S. 134, 150 (2012). He filed his §
2255 motion more than nine years later, on December 7, 2018.
See 28 U.S.C. § 2255(f)(1); Houston v.
Lack, 487 U.S. 266, 276(1988).