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Loughry v. United States

United States District Court, S.D. Indiana, Indianapolis Division

March 29, 2018

ROGER LOUGHRY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING A CERTIFICATE OF APPEALABILITY

          SARAH EVANS BARKER, JUDGE.

         For the reasons discussed in this Entry, the motion of Roger Loughry 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.

         I. The § 2255 Motion

         A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). The scope of relief available under § 2255 is narrow, limited to “an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991) (internal citations omitted).

         II. Factual Background

         On June 3, 2009, Mr. Loughry was charged in a seventeen-count multi-defendant Second Superseding Indictment. See USA v. Loughry, 1:08-cr-00132-SEB-TAB-5 (hereinafter “Crim. Dkt.”), dkt. 364. Count 1 charged Mr. Loughry with conspiracy to advertise child pornography, in violation of 18 U.S.C. § 2251(d)(1)(A). Count 2 charged Mr. Loughry with conspiracy to distribute child pornography, in violation of 18 U.S.C. § 2252(a)(2). Counts 3-4 and 7-16 charged Mr. Loughry with advertising child pornography, in violation of 18 U.S.C. § 2251(d)(1)(A). Counts 5 and 6 charged Mr. Loughry with distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2).

         Mr. Loughry's jury trial began on April 12, 2010 and ended on April 15, 2010. He was found guilty of Counts 1-16, as charged in the Second Superseding Indictment. See Crim. Dkt. 729. On August 18, 2010, Mr. Loughry was sentenced to 360 months in prison for Counts 1, 3-4, and 7-16 and 240 months in prison on Counts 2 and 5-6, to be served concurrently. See Crim. Dkt. 895. Mr. Loughry was also sentenced to a lifetime of supervised release and was also assessed a mandatory assessment of $1, 600 and a fine of $1, 000. The judgment of conviction was entered on August 20, 2010. See Crim Dkt. 897.

         Mr. Loughry filed a notice of appeal on August 23, 2010. He argued that the Court allowed the government to show the jury several uncharged hard core pornography videos that were found in his home over his objection. On November 2, 2011, the Seventh Circuit found the Court erred in admitting these videos and such errors were not harmless. The Seventh Circuit reversed the judgment and remanded it for further proceedings. See United States v. Loughry, 660 F.3d 965 (7th Cir. 2011).

         On January 28, 2013, Mr. Loughry's second jury trial was held. See Crim. Dkt. 1055. On January 31, 2013, he was found guilty of all Counts charged in the Second Superseding Indictment. See Crim. Dkt. 1062. On February 1, 2013, Mr. Loughry was sentenced to 360 months imprisonment to be followed by a lifetime of supervised release. Mr. Loughry was also assessed a mandatory assessment of $1, 600 and a fine of $1, 000. Final judgment was entered on February 11, 2013. See Crim Dkt. 1061.

         Mr. Loughry filed a notice of appeal on February 21, 2013. He argued that the Court improperly allowed a binder containing properly admitted evidence of child pornography collected from his residence to be taken to the jury room during deliberations. He argued that this evidence was too prejudicial for the jurors to examine. The Seventh Circuit found these photos were not unfairly prejudicial and were highly probative of his identity as the internet user who advertised and distributed child pornography. See United States v. Loughry, 738 F.3d 166 (7th Cir. 2013) (stating the similarities between Mr. Loughry's own child pornography and that found on the “TheCacheBBS” website made Mr. Loughry's personal collection highly probative and justified the Court's decision to allow jurors to inspect it during deliberations). On December 18, 2013, the Seventh Circuit affirmed the judgment of the district court. Id.

         Mr. Loughry filed his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on March 16, 2015, and this action was opened. On June 12, 2015, he filed a motion to supplement his § 2255 motion, which the Court granted. On February 29, 2016, he filed a motion to file a second amendment to his § 2255 motion, which the Court granted. On May 5, 2016, Mr. Loughry filed an amended § 2255 motion. The United States has responded in opposition on several occasions, and Mr. Loughry has never filed a reply to any of the United States' responses.

         III. Discussion

         Over the course of seven pages, Mr. Loughry lists a litany of instances where his trial counsel, Mr. Koselke, allegedly provided ineffective assistance of counsel. See dkt. 46-1. The Court reviewed Mr. Loughry's list in detail and summarizes Mr. Loughry's primary claims of ineffective assistance of counsel as: (1) failing to call a witness during his trial; (2) failing to argue that the search warrant for his residence contained an incorrect description of his house; (3) failing to properly cross-examine and pursue certain lines of questioning for several of the government witnesses; (4) failing to dispute whether exhibits 1-6 were “true and correct” copies of the original; (5) refusing to ask Mr. Loughry the questions Mr. Loughry desired him to ask if he took the stand; (6) failing to push for access to Mr. Loughry's hard drive; and (7) failing to get the 4-level enhancement for sadistic/masochistic removed from his total offense level at sentencing. Other claims, such as “Mr. Koselke should have sent back the pages of the transcript that I sent him, like I asked and copies of the opening statements and closing arguments, ” “[t]he Defendant should have given copies of the ‘off the record' discussions, ” and “Mr. Koselke should have questioned how this case got from Alabama to Washington, D.C. to North Carolina to Indiana, ” and “Mr. Koselke should have done his research like the Defendant did” (without any further explanation) are plainly without merit and will not be addressed.

         Mr. Loughry further alleges that there was prosecutorial misconduct, listing twenty-eight alleged instances of such misconduct. Finally, Mr. Loughry alleges judicial misconduct with a list of seventeen alleged instances of misconduct. In response, the United States maintains that Mr. Loughry's claims are meritless, his trial counsel was not ineffective, and he was not subject to prosecutorial or judicial misconduct.

         A. Ineffective Assistance of Counsel

         A petitioner claiming ineffective assistance of counsel bears the burden of showing (1) that trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); United States v. Jones, 635 F .3d 909, 915 (7th Cir. 2011). If a petitioner cannot establish one of the Strickland prongs, the Court need not consider the other. Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014). To satisfy the first prong of the Strickland test, a petitioner must direct the Court to specific acts or omissions of his counsel. Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). The Court must then consider whether in light of all of the circumstances whether counsel's performance was outside the wide range of professionally competent assistance. Id. In order to satisfy the prejudice component, a petitioner must establish that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. In addition, in attacking trial counsel's performance, a defendant “must ‘overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'” Frentz v. Brown, 876 F.3d 285, 293 (7th Cir. 2017) (quoting Strickland, 466 U.S. at 689).

         1. Failing to Call a Witness During Trial

         Mr. Loughry first argues that his counsel failed to call a government witness in his second trial that “damaged Government's case as government witness in first trial. (Lori Heath) Postal Inspector.” See dkt. 46-1 at 1. That is the totality of Mr. Loughry's argument.

         “The Constitution does not oblige counsel to present each and every witness that is suggested to him.” Blackmon v. Williams, 823 F.3d 1088, 1103 (7th Cir. 2016) (internal quotation omitted). “Rather, counsel need only investigate possible lines of defense and make an informed decision.” Id. “If counsel has investigated witnesses and consciously decided not to call them, the decision is probably strategic.” United States v. Best, 426 F.3d 937, 945 (7th Cir. 2005). Strategic decisions like these, so long as they are made after a thorough investigation of law and facts, are “virtually unchallengeable.” Strickland, 466 U.S. at 690.

         Lori Heath, a criminal investigator with the United States Postal Inspection Service, testified as a government witness on the second day of Mr. Loughry's first trial. See Crim. Dkt. 911 at 233:15-23. Her testimony related to: (1) describing Mr. Loughry's residence and the search of his residence in September 2008 (see Id. at 235:1-261:12); (2) detailing her interview of Mr. Loughry during the time of the search conducted by her and Augustus Aquino, a special agent from Immigration and Customs Enforcement (ICE) (id. at 261:13-276:2); and (3) explaining and reading Mr. Loughry's written and signed statement (id. at 276:3-283:14). Her testimony was also provided to lay the foundation for the admission of the following exhibits:

• Exs. 2002 and 2003 - diagrams of the layout of the first and second floors of Mr. Loughry's ...

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