United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING MOTION FOR RELIEF PURSUANT TO 28
U.S.C. § 2255 AND DENYING CERTIFICATE OF
EVANS BARKER, JUDGE
reasons explained in this Entry, the motion of Thomas
Hutchens for relief pursuant to 28 U.S.C. § 2255 must be
denied and the action dismissed with
prejudice. In addition, the Court finds that a certificate of
appealability should not issue.
The § 2255 motion
10, 2013, an eight-count Information was filed in the
Southern District of Indiana under case number
1:13-cr-102-1-SEB-TAB. Counts 1 through 6 alleged that Mr.
Hutchens sexually exploited two girls on various dates
between 2003 and 2009, in violation of 18 U.S.C. §
2251(a). Count 7 alleged that Mr. Hutchens distributed child
pornography, in violation of 18 U.S.C. § 2252(a)(2).
Count 8 alleged that Mr. Hutchens possessed child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).
February 7, 2014, Mr. Hutchens filed a Petition to Enter a
Plea Agreement. In the Petition, Mr. Hutchens represented to
the Court that he received a copy of the Information; read
and discussed it with his attorney; understood the charges
brought against him; his attorney advised him of the
punishment; and declared that his plea of guilty was offered
freely and voluntary and of his own accord.
February 18, 2014, Mr. Hutchens filed a Plea Agreement
pursuant to Federal Rules of Criminal Procedure 11(c)(1)(B).
The Plea Agreement provided that Mr. Hutchens would plead
guilty to Counts 1 through 6 and 8 of the Information.
Plea Agreement provided that Mr. Hutchens agreed that the
determination of his sentence was within the discretion of
the Court and he understood that if the Court decided to
impose a sentence higher or lower than any recommendation of
either party he would not be permitted to withdraw his plea
of guilty for that reason and would be bound by his guilty
plea. Mr. Hutchens agreed that the final determination of his
sentence to include the applicable advisory guideline
calculation, criminal history category, and advisory
sentencing guideline range would be made by the Court. Mr.
Hutchens understood that the Court had the authority to
impose concurrent or consecutive sentences for some or all of
the offenses charged in the Information.
parties agreed to reserve the right to present evidence and
arguments concerning what they believed to be the appropriate
sentence, supervised release, fine, and restitution. Mr.
Hutchens agreed that he would not ask for a sentence below
the mandatory minimum of 15 years imprisonment.
government agreed that if Mr. Hutchens continued to accept
responsibility, he would be entitled to a three-level
decrease in his offense level, pursuant to U.S.S.G. §
3E1.1(a) and (b). In addition, if the Court accepted the Plea
Agreement the government agreed to dismiss Count 7 of the
September 9, 2014, a stipulated factual basis was signed and
filed by the parties. It was sufficient to support the plea.
The parties agreed to the facts of the case and Mr. Hutchens
signed the agreement. On September 9, 2014, Mr. Hutchens'
plea hearing was held. The Court fully advised him of his
rights and the possible penalties. Mr. Hutchens pleaded
guilty to Counts 1 through 6 and 8 of the Information. The
Court accepted Mr. Hutchens' plea and adjudged him guilty
as charged in Counts 1 through 6 and 8 of the Information.
Hutchens was then sentenced to 180 months on each of Counts 1
through 6, to be served concurrently. On Court 8, he was
sentenced to 120 months in prison to be served consecutive to
the term of imprisonment imposed in Counts 1 through 6. As a
result, his total term of imprisonment was 300 months (25
years). Mr. Hutchens was sentenced to 5 years of Supervised
Release and a mandatory special assessment fee of $700. The
judgment of conviction was entered on September 16, 2014. Mr.
Hutchens did not appeal his sentence.
August 31, 2015, Hutchens filed a motion for post-conviction
relief pursuant to 28 U.S.C. § 2255. Mr. Hutchens filed
this action seeking relief from his sentence in
1:13-cr-102-SEB-TAB-1. He raises two grounds for relief.
First, he asserts that his counsel was ineffective for
failing to investigate all available defense strategies and
to call witnesses. Second, he claims that he is entitled to
relief because he was charged pursuant to a fraudulent
Indictment and that there were no actual Grand Jury
charges/Information filed. The United States responded and
Mr. Hutchens filed a reply. This action is now ripe for