United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge Catherine M.
Salinas' Final Report and Recommendation 
(“R&R”), recommending that Movant Thomas
Bui's (“Bui”) Motion to Vacate Judgment and
Sentence Pursuant to 28 U.S.C. § 2255  (“2255
Motion”) be dismissed, and that a certificate of
appealability be denied.
February 25, 2014, a grand jury in the Northern District of
Georgia returned an Indictment  charging Bui with one
count of distributing child pornography, in violation of 18
U.S.C. §§ 2252(a)(2) and (b)(1) (Count 1), and one
count of possessing child pornography, in violation of 18
U.S.C. §§ 2252(a)(4)(B) and (b)(2) (Count
On August 6, 2014, the Court held a change of plea hearing at
which Bui sought to enter a guilty plea. (). The Court
declined to accept Bui's guilty plea and, on November 4,
2014, after Bui waived his right to a jury trial, the Court
conducted a bench trial on the charges alleged in the
Indictment. (;  at 4). The parties entered several
stipulations into evidence, and “[t]he disputed element
at trial was whether [Bui] ‘knowingly distributed'
child pornographic images through GigaTribe, a peer-to-peer
file-sharing program, in violation of 18 U.S.C. §
2252(a)(2).” ( at 1-2). On November 14, 2014, the
Court found Bui guilty of both counts in the Indictment,
including because “mak[ing] [child pornography]
accessible to others through a file-sharing website or
peer-to-peer network” constitutes
“distribution” of child pornography under Section
2252(a)(2). ( at 4 (quoting United States v.
Grzybowicz, 747 F.3d 1296, 1308 (11th Cir. 2014)).
March 4, 2015, Bui was sentenced to 87 months in prison,
followed by 15 years of supervised release. (). The
Court, at Bui's sentencing hearing, overruled his
“objection that a person who is on a peer-to-peer
program is not engaged in the act of distribution.”
( at 8, 11). On March 13, 2015, Bui filed his Notice of
Appeal . On February 29, 2016, the Court of Appeals for
the Eleventh Circuit affirmed Bui's convictions,
rejecting his argument that “the district court erred
in concluding there was sufficient evidence to prove that:
(1) he distributed child pornography through a file sharing
program; and (2) he distributed a visual depiction of child
pornography, rather than just a file fragment.”
United States v. Bui, 636 F. App'x 788, 789
(11th Cir. 2016). On October 3, 2016, the United States
Supreme Court denied Bui's petition for a writ of
certiorari. Bui v. United States, 137 S.Ct. 100
April 13, 2017, Bui filed his 2255 Motion, challenging his
convictions on the grounds that his trial counsel was
constitutionally ineffective. Bui argues that his counsel
should have challenged the constitutionality of 18 U.S.C.
§ 2252(a)(2)-the provision under which Bui was convicted
of distributing child pornography-on the grounds that that
the statutory word “distributes” is impermissibly
vague. Bui also argues that his counsel “could have but
failed to challenge the prosecutor's decision to
constructively amend the Indictment.” ( at 8-9).
Bui claims the Government constructively amended his
Indictment by introducing evidence that a “Los Angeles
FBI operative downloaded visual depictions of child
pornography.” ( at 8-9).
25, 2017, the Magistrate Judge issued her R&R,
recommending that Bui's 2255 Motion be dismissed and that
a certificate of appealability be denied. Bui did not file
objections to the R&R.
Ineffective Assistance of Counsel
prevail on an ineffective assistance of counsel claim, a
petitioner must show that counsel's conduct was
“outside the wide range of professionally competent
assistance” and that “there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S.
668, 690, 694 (1984). Courts must “indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Id. at 689. “[F]or a petitioner to show that
the conduct was unreasonable, a petitioner must establish
that no competent counsel would have taken the action that
his counsel did take.” Chandler v. United
States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc).
Magistrate Judge's Final Report and
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or
modify a magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). A district judge “shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). With
respect to those findings and recommendations to which
objections have not been asserted, the Court must conduct a
plain error review of the record. United States ...