Ryan v. United States

TIMOTHY RYAN, Petitioner v. UNITED STATES OF AMERICA, Respondent

CAUSE NO. 3:15-CR-62 RLM-MGG

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

January 5, 2021

OPINION AND ORDER

A jury found Timothy Ryan guilty of distributing child pornography, 18 U.S.C. §§ 2252(a)(2), receiving child pornography, 18 U.S.C. §§ 2252(a)(2), and possessing child pornography, 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2). He was sentenced to 157 months' imprisonment, about 25 percent below the Sentencing Guidelines' recommended term, and 5 years' supervised release. Mr. Ryan's trial counsel, Bryan Truitt, filed a notice of appeal and a motion to substitute counsel, which the court of appeals granted. The court of appeals considered three issues on review: (1) whether the court properly denied Mr. Ryan's motion to substitute counsel on the eve of trial; (2) whether the government sufficiently proved that Mr. Ryan "knowingly" distributed child pornography and whether the sentencing enhancement for distribution of child pornography was properly applied; and (3) whether Mr. Ryan's computer was properly forfeited. United States v. Ryan, 885 F.3d 449, 452 (7th Cir. 2018). The court of appeals found that this court's denial of Mr. Ryan's motion to substitute counsel was not an abuse of discretion, the government sufficiently proved that Mr. Ryan knowingly distributed child pornography, and this court committed harmless error when it didn't determine whether any party had requested the jury to determine the forfeiture claim. Mr. Ryan's petition for rehearing and rehearing en banc were both denied, and the Supreme Court denied his petition for certiorari. Ryan v. United States, 139 S. Ct. 127 (2018).

Mr. Ryan now asks this court to vacate, set aside, or correct his conviction and sentence under 28 U.S.C. § 2255. A prisoner may bring a motion under Section 2255 alleging that his sentence was imposed unconstitutionally, the court didn't have jurisdiction to impose the sentence, the sentence exceeded the maximum authorized by law, or it's otherwise subject to collateral attack. The rules governing petitions filed under 28 U.S.C. § 2255 provide that once a motion is filed:

The motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified.

Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. The court has discretion to rule without an evidentiary hearing when the motion, files, and records of the case conclusively show that the prisoner is not entitled to relief. Cooper v. United States, 378 F.3d 638, 642 (7th Cir. 2004) (citing United States v. Kovic, 830 F.2d 680 (7th Cir. 1987)). A hearing isn't necessary if the petitioner's allegations are "'vague, conclusory, or palpably incredible,' rather than 'detailed and specific.'" Martin v. United States, 789 F.3d703, 706 (7th Cir. 2015) (quoting Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006)). The allegations contained in a verified motion to vacate, signed under penalty of perjury, become evidence and "permit the district court to evaluate properly the movant's allegations and to determine whether a sufficient threshold showing has been made to warrant further proceedings." Kafo v. United States, 467 F.3d at 1068.

The court has reviewed Mr. Ryan's motion and supporting memorandum¹ and finds that his arguments aren't supported by the facts or the law in this case and can be resolved without a hearing. See Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015) (evidentiary hearing not required if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief" or petitioner's allegations are "vague, conclusory, or palpably incredible"); Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006); Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001). Appointment of counsel isn't required under Rule 8(c) of the Rules Governing Section 2255 Proceedings or warranted in the interest of justice under 18 U.S.C. § 3006A(a)(2)(B). See Rauter v. United States, 871 F.2d 693, 695-696 (7th Cir. 1989).

Mr. Ryan presents eight grounds for his 28 U.S.C. § 2255 motion to vacate. The court addresses them in the order he raised them.

Ground 1: Ineffective Assistance of Counsel

Mr. Ryan's first ground for relief is that his trial counsel provided ineffective assistance. "[A]n ineffective assistance of counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003). To prevail on an ineffective assistance of counsel claim, Mr. Ryan must show both that his attorney's performance "fell below an objective standard of reasonableness" and that there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688-693 (1984). This is a difficult standard to meet. Mr. Ryan must show both "that counsel made errors so serious that 'counsel' was not functioning as the counsel guaranteed the defendant by the Sixth Amendment" and "that counsel's errors were so serious as to deprive [Mr. Ryan] of a fair [result]." Strickland v. Washington, 466 U.S. at 687. The court can address the Strickland prongs in the order it sees fit, because an insufficient showing as to either of the prongs is fatal to a claim. Strickland v. Washington, 466 U.S. at 697; McDaniel v. Polley, 847 F.3d 887, 893 (7th Cir. 2017).

With regard to the performance prong of the Strickland inquiry, there is a strong presumption that counsel performed effectively. See Berkey v. United States, 318 F.3d 768, 772 (7th Cir. 2003). "A court's scrutiny of an attorney's performance is 'highly deferential' to eliminate as much as possible the distorting effects of hindsight, and we 'must indulge a strong presumption that counsel'sconduct falls within the wide range of reasonable professional assistance.'" Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015) (quoting Strickland v. Washington, 466 U.S. at 687). Because reviewing courts shouldn't second-guess counsel's strategic choices, the burden of showing that counsel's decisions fell outside the wide range of reasonable strategic choices "rests squarely on the defendant." Burt v. Titlow, 571 U.S. 12, 22-23 (2013).

If counsel's performance was deficient, the petitioner must still "show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,' meaning 'a probability sufficient to undermine confidence in the outcome.'" Eckstein v. Kingston, 460 F.3d 844, 848 (7th Cir. 2006) (quoting Strickland v. Washington, 466 U.S. at 694).

Mr. Ryan raises about 40 issues under his ineffective assistance of counsel claim. Where possible, the court addresses related claims together. For the following reasons, Mr. Ryan hasn't met the Strickland standard on any of the issue he raises.

Witnesses. Mr. Ryan argues Mr. Truitt should have called additional witnesses, including Sonya Burnside, Ms. Burnside's daughters, and a witness named "Jeff". He also says Mr. Truitt should've called unnamed alibi and eyewitnesses. Finally, he alleges that Mr. Truitt didn't cross-examine the government's witnesses effectively.

"When a petitioner alleges that counsel's failure to investigate resulted inineffective assistance, the petitioner has the burden of providing the court with specific information as to what the investigation would have produced." United States v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011). An attorney must make "a reasonable investigation of the principal facts of the defendant's case" or "a reasonable decision that particular investigations are unnecessary." Rutledge v. United States, 230 F.3d 1041, 1050 (7th Cir. 2000) (citing Strickland v. Washington, 466 U.S. at 691). But he "need not investigate every evidentiary possibility before choosing a defense[.]" Id. "'Trial tactics are a matter of professional judgment'... it is not our task to second-guess counsel's judgment and replace it with our own." United States v. Lathrop, 634 F.3d 931, 937 (7th Cir. 2011) (quoting United States v. Malone, 484 F.3d 916, 920 & n. 1 (7th Cir. 2007)). If counsel articulates a strategic reason for a decision that was sound at the time, that decision generally can't be grounds for an ineffective assistance of counsel claim. Id. An attorney needn't present every witness the defendant suggests to him. United States v. Balzano, 916 F.2d 1273, 1294 (7th Cir. 1990). "Where a petitioner claims his trial counsel failed to call a witness, he must make a specific, affirmative showing as to what the missing evidence would have been and prove that this witness's testimony would have produced a different result." Patel v. United States, 19 F.3d 1231, 1237 (7th Cir. 1994).

The record shows that Mr. Truitt interviewed or tried to interview all of the witnesses Mr. Ryan asked him to. On appeal, the circuit court found: "Counsel had contacted all the witnesses Ryan thought would be helpful, employed the assistance of the FBI to try to track down Ryan's cousin [Ms. Burnside], andhired an expert to investigate the computer programs involved." United States v. Ryan, 885 F.3d 449, 452 (7th Cir. 2018). Mr. Truitt says in an affidavit that he interviewed Ms. Burnside's daughters but didn't think the two minors' testimony would be admissible or help Mr. Ryan's case. He thought the jury might penalize the defense for calling children as witnesses....