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United States v. Overton

United States District Court, D. Montana, Butte Division

May 8, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
WALTER MERLE OVERTON, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Donald W. Molloy, United States District Judge

         This 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.

         I. Preliminary Review

         Before 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.

         II. Background

         On July 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).

         A bench 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.

         After 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. 2004)).

         The 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.

         A 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) at 2-3.

         Overton 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).

         Overton petitioned for writ of certiorari. The United States Supreme Court denied the petition on October 20, 2009. See Clerk Letter (Doc. 64) at 1.

         Overton's 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).

         III. ...


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