United States District Court, W.D. North Carolina, Charlotte Division
Cogburn United States District Judge.
MATTER is before the Court on consideration of
petitioner's pro se Motion to Vacate, Set Aside or
Correct Sentence which is filed pursuant to 28 U.S.C. §
2255. For the reasons that follow, petitioner's §
2255 Motion will be denied and dismissed.
October 7, 2014, petitioner was indicted in this district on
two counts of the knowing transmission of child pornography
by any means utilizing interstate commerce, including a
computer, in violation of 18 U.S.C. § 2252A(a)(1)
(Counts One and Two); one count of the knowing receipt of
child pornography using any means of interstate commerce,
including a computer, in violation of § 2252A(a)(2)
(Count Three); and one count of possession with intent to
view child pornography that involved prepubescent minors that
had not attained the age of twelve, by means of a computer,
or other interstate means, in violation of §
2252A(a)(5)(B) (Count Four). Indictment (#1).
entered into a plea agreement with the Government agreeing to
plead guilty to Count Two of his indictment in exchange for
the Government's agreement to dismiss the remaining
counts. In the agreement petitioner expressly agreed that,
among other things, he was in fact guilty of the conduct
charged in Count Two and upon conviction he could be subject
to a maximum term of lifetime supervised release. Plea
20, 2015, petitioner appeared with counsel before U.S.
Magistrate Judge David Kessler for his Plea and Rule 11
hearing and he was placed under oath. Petitioner acknowledged
that he had reviewed the bill of indictment with his counsel
and the elements charged in Count Two, and he acknowledged
that he understood the elements of the offense and the
potential penalties he faced upon conviction. Petitioner also
acknowledged that he had discussed any possible defenses with
counsel and he knew he could plead not guilty and contest the
charges at trial before a jury, summon witnesses, and
cross-examine the government's witnesses. Petitioner then
acknowledged that he understood and agreed with the terms of
his plea agreement; that he was satisfied with the services
of his counsel; and that he was pleading guilty because was
in fact guilty of the conduct charged in Count Two. The court
recorded petitioner's answers in writing and presented
them to petitioner and counsel to review, and they agreed
that the answers that petitioner had given under oath were
true. The court accepted the guilty plea after finding that
it was knowing and voluntary and petitioner's case was
then referred to the U.S. Probation Office for preparation of
a presentence report (PSR). Acceptance and Entry of Plea
PSR, the probation officer included a detailed summary of
petitioner's offense conduct to support the calculation
of the Guidelines Range which included the complete Factual
Basis noted above which is set forth as follows:
5. On November 18, 2013, CMPD Det. Chilton was operating an
undercover capacity on the Gnutella Internet peer-to-peer
network. He identified IP address 220.127.116.11 as sharing
files suspected of being child pornography. Det. Chilton was
able to download six videos from the suspect IP address. A
description of some of these videos is as follows:
a. (REDACTED TEXT) a video that depicts an adult female
performing oral sex on a toddler that is lying nude on her
back on a bed.
b. (REDACTED TEXT) a video that depicts an adult male having
vaginal intercourse with a prepubescent female.
6. Det. Chilton initiated an administrative subpoena for the
suspect IP address which returned the following subscriber
information: Paul Baalerud. 6220 Hackberry Creek Tr.,
Charlotte NC 28269.
7. Between December 5, 2013 and January 7, 2014, Detective
Aleta Dunbar with CMPD was operating in an undercover
capacity on the Gnutella internet network Det. Dunbar
identified a computer with the IP address 108.226.1 24.222
offering files of investigative interest for download. Det.
Dunbar isolated the suspect IP address and downloaded 15
videos of child pornography. Examples of the tiles that she
down loaded include:
a. (REDACTED TEXT) - this video depicts an adult male orally
penetrating a prepubescent minor female under the age of 10.
The man then attempts to vaginally penetrate her. Next the
man attempts to anally rape the child.
b. (REDACTED TEXT) - this videos depicts an adult male having
sexual intercourse with a prepubescent minor female that is
approximately 8 to 9 years old. The male ejaculates on the
child. Next the man inserts a cylinder object into the
child's rectum. He then digitally penetrates the
child's anus and rubs his pen is on the child's anus.
8. Det. Dunbar initiated an administrative subpoena to
AT&T for subscriber in formation of IP address
18.104.22.168. AT&T responded to the administrative
subpoena on December 31, 2013 giving the following subscriber
in formation: Paul Baalerud, 6220 Hackberry Creek Tr.,
Charlotte, NC 28269.
9. Based on her investigation, Det. Dunbar sought a search
warrant for the Hackberry Creek address. This search warrant
was executed on January 10, 2014. Numerous items, including a
computer and external hard drive were seized. Defendant was
the sole resident of the home.
10. Defendant agreed to be interviewed. He told the agent
that he used a peer to peer program to find child
pornography. He stated that he had been using it for about
two years. Defendant used search terms like (REDACTED TEXT).
He masturbated to child pornography. He told the agents that
they would find child pornography on his external hard drive.
Defendant indicated that he deleted his collection on an
irregular basis. He told the agents that he was not sexually
attracted to children but was interested in “the whole
idea of control" and "they're [the children]
just so innocent."111. Defendant was interviewed later
the same day at CMPD. During that interview, he told agents
that on five or more occasions, he had masturbated in front
of a 2 year old child (Child Victim 1) and had the child
touch Defendant's penis. He also told the agent that
prior to Child Victim 1, he had two other child victims (CV2
and CV3) climb on top of him while he masturbated. This
occurred when CV2 and CV3 were approximately one to two years
old.2 12. A forensic examination was performed on the items
seized from Defendant's residence. Peer to Peer software
was located on the ...