United States District Court, S.D. Indiana, Indianapolis Division
JAMES F. COCHRAN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING A CERTIFICATE OF
Jane Magnus-Stinson, Chief Judge.
reasons discussed in this Order, the motion of James F.
Cochran 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.
§ 2255 Standard
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
February 14, 2012, Mr. Cochran was charged in a twelve-count
multi-defendant Superseding Indictment. See USA v.
Cochran, 1:11-cr-00042-JMS-DML-2 (hereinafter
“Crim. Dkt.”), dkt. 217. He was charged in all
twelve counts. Count 1 charged Mr. Cochran with conspiracy to
commit wire fraud and securities fraud, in violation of 18
U.S.C. § 371. Counts 2-11 charged Mr. Cochran with wire
fraud, in violation of 18 U.S.C. §§ 1343 and 2.
Count 12 charged Mr. Cochran with securities fraud, in
violation of 15 U.S.C. § 78j(b).
Cochran's jury trial began on June 11, 2012, and ended on
June 20, 2012. The jury found him guilty of counts 1, 4, 6,
and 8-12, as charged in the Superseding Indictment.
See Crim. Dkts. 354, 379.
August 27, 2012, the Court received a letter from Mr. Cochran
that it forwarded to counsel. Crim. Dkt. 390. In the letter,
Mr. Cochran made numerous claims of ineffective assistance of
counsel regarding William Dazey and requested new counsel. On
September 25, 2012, the Court held a status conference to
discuss the matters raised in Cochran's letters regarding
counsel. Crim. Dkt. 401. After the hearing, the Court
appointed additional counsel to serve as lead counsel for
purposes of sentencing for Mr. Cochran and had Mr. Dazey
serve as co-counsel.
September 30, 2012, Mr. Cochran was sentenced to 25 years in
prison: 5 years for count 1, 15 years for count 4, and for
counts 6, and 8-12, 10 years for each count, concurrent, but
consecutive to count 4 and counts 1 and 4 to run
concurrently. Crim. Dkt. 444. The Court entered an amended
judgment on December 14, 2012. Crim. Dkt. 460.
December 17, 2012, Mr. Cochran filed a notice of appeal of
his conviction and sentence. See United States v.
Durham, et al., 766 F.3d 672 (7th Cir. 2014).
On March 27, 2013, Mr. Dazey withdrew as Mr. Cochran's
counsel and, pursuant to the Criminal Justice Act, Michelle
L. Jacobs was appointed to represent Mr. Cochran in his
appeal. Crim. Dkt. 490. In his appeal, Mr. Cochran challenged
the sufficiency of the wiretap application; argued that the
district court erroneously refused to give a proposed
theory-of-defense jury instruction on the securities fraud
count; claimed prosecutor misconduct during the rebuttal
closing argument; and challenged several sentencing issues
and the restitution order. Durham, 766 F.3d at 678.
September 4, 2014, the Court of Appeals affirmed Mr.
Cochran's conviction and sentence in all respects. The
Court of Appeals held that 1) the affidavit supporting the
wiretap application satisfied the necessity requirement; 2)
there was no right to the proposed jury instruction; 3) the
prosecutor did not engage in misconduct; 4) the district
court's refusal to consider sentences from other
districts was not procedural error; 5) sufficient evidence
supported the calculation of actual loss at sentencing; and,
6) sufficient evidence supported the calculation of intended
loss at sentencing. Id. On May 16, 2016, Mr.
Cochran's petition for writ of certiorari was denied.
Cochran v. United States, 136 S.Ct. 2035 (2016).
12, 2017, Mr. Cochran filed a motion for post-conviction
relief pursuant to 28 U.S.C. § 2255. The United States
responded and Mr. Cochran has replied. The action is ripe for
the course of 33 pages of briefing, 58 pages of attached
exhibits, his 15-page affidavit, and a 12-page reply, Mr.
Cochran identifies a number of issues for which he seeks
relief pursuant to § 2255. See dkt. 1, dkt.
1-1, dkt. 2, dkt. 18. He argues that: (1) his trial counsel,
Mr. Dazey, provided ineffective assistance; (2) his
sentencing counsel, presumably just Mr. Dazey, provided
ineffective assistance; (3) his appellate counsel provided
ineffective assistance; (4) the trial court erred in not
appointing a different counsel for sentencing; (5) there were
errors in the sentencing calculations; (6) there were
violations in sentencing because sentencing determinations
were made outside his required presence and decided before
the hearing began; and (7) the length of his sentence is
improper given “changes in the law.” Each is
discussed in more detail below.
Ineffective Assistance of Counsel
deeply dissatisfied with the results of the case and now
retracting his previously expressed remorse, Mr. Cochran
takes issue with his trial counsel, his sentencing counsel,
and his appellate counsel, identifying a litany of instances
he alleges his various counsel provided ineffective
assistance of counsel.
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 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).
Ineffective Assistance of Trial Counsel
Cochran alleges that his trial counsel was ineffective for:
(1) failing to file a motion to sever or asking for limiting
instructions, dkt. 1 at 13-16; (2) failing to call certain
witnesses, dkt. 2 at 10-11; (3) failing to allow him to
testify, dkt. 1 at 18; and (4) failing to investigate,
present favorable evidence, and conduct proper trial
strategy, id. at 16-20.
Failing to File a Motion to Sever
Cochran first alleges that his trial counsel was ineffective
for failing to file a motion to sever his trial from that of
Mr. Durham, or in the alternative, to ask for limiting
instructions to the jury. Dkt. 1 at 13-16. Mr. Cochran argues
that the overwhelming evidence and mis-use of funds was
attributable to Durham, not him, but that the “jury was
forced to see Cochran (and Snow) in the same light as
Durham.” Id. at 14-15.
is nothing inherently unlawful about trying more than one
defendant at the same time, especially when, as here, the
evidence established that Mr. Cochran worked in concert with
Durham to manage Fair Finance (“Fair”) and
defraud investors. In fact, severance under Fed. R. Crim. P.
14 is committed to the Court's sound discretion and
should be granted “only if there is a serious risk that
a joint trial would compromise a specific trial right of one
of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence.” Zafiro v.
United States, 506 U.S. 534, 539 (1993). “There is
a preference in the federal system for joint trials of
defendants who are indicted together.” Id. at
537. Joint trials promote efficiency and go far to prevent
the scandal and inequity of inconsistent verdicts among
codefendants. Id. A defendant is not entitled to a
separate trial simply because he might have a better chance
of acquittal if tried alone. Id. at 540.
there is no reasonable probability that a motion for
severance would have been granted if it had been filed, nor
is there a reasonable probability that Mr. Cochran would have
been acquitted if he had been tried separately. Mr. Cochran
has pointed to nothing concrete that his counsel could have
relied on as a basis to request severance under these
standards. He was charged in the same indictment as Durham
and Snow for the same crime, and much of the evidence
allegedly attributable only to Durham would still have
necessarily been presented in Mr. Cochran's trial to
establish count 1, conspiracy (between at least Durham, Mr.
Cochran, and Snow) to commit wire fraud and securities fraud.
A joint trial was the most efficient way to try this case.
See Zafiro, 506 U.S. at 537.
addition, Mr. Cochran has not identified any legal error in
the jury instructions. Moreover, even if there were some risk
of prejudice, here it is of the type that can be cured with
proper instructions, and “juries are presumed to follow
their instructions.” Id. at 540 (citing
Richardson v. Marsh, 481 U.S. 200, 211 (1987)). The
Court properly instructed the jury that the Government had
“the burden of proving beyond a reasonable doubt the
guilt of every defendant.” Crim. Dkt. 353 at 5; Crim.
Dkt. 351; Crim. Dkt. 379 at 12. The Court then instructed the
jury that it must “give each defendant separate
consideration” and “consider each count and the
evidence relating to it separate and apart from every other
count.” Crim. Dkt. 353 at 19; see also Id. at
39 (“You must give separate consideration to each
defendant.”). The jury was instructed that its
“verdict of guilty or not guilty of an offense or as to
a defendant charged in one count should not control [its]
decision as to any other count.” Id. In
addition, the Court admonished the jury that opening and
closing arguments are not evidence and that it should draw no
inferences from a defendant's exercise of the right to
silence. Id. at 7, 12. These instructions sufficed
to cure any possibility of prejudice. See Schaffer v.
United States, 362 U.S. 511, 516 (1960).
Mr. Cochran has failed to demonstrate that there was any
deficient performance on the part of trial counsel nor
prejudice relating to this issue.
Failing to Call Certain Witnesses
Cochran next alleges that Mr. Dazey was ineffective for
failing to call as witnesses Ron Kaffen, a lawyer from an
Ohio law firm; two unknown male subjects from
“ODS”; John Head, President of Fair from 2002 to
2008; Terry Whitesell, President of Obsidian; an unknown
female restaurant manager; and Jeff Birk, an accountant. He
does not attach any affidavits from these witnesses, but
alleges in his own affidavit as to what he supposed their
testimony would have been. Dkt. 2 at 10-11.
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.
of uncalled witnesses are not favored in federal habeas
corpus review.” United States ex rel. Cross v.
DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987) (quoting
Murray v. Maggio, 736 F.2d 279, 282 (5th Cir.
1984)). “[I]f potential witnesses are not called, it is
incumbent on the petitioner to explain their absence and to
demonstrate, with some precision, the content of the
testimony they would have given at trial.”
DeRobertis, 811 F.2d at 1016. To meet this burden,
“the petition must be accompanied with a detailed and
specific affidavit which shows that the petitioner had actual
proof of the allegations going beyond mere unsupported
assertions.” Prewitt v. United States, 83 F.3d
812, 819 (7th Cir. 1996).
Mr. Cochran's sentencing hearing, the Court acknowledged
that Mr. Cochran had on several occasions expressed his
dissatisfaction of Mr. Durham's spending habits, but he
failed to do anything, tried to get some for his own, and
used his “gift of gab” to betray investors:
THE COURT: It doesn't necessarily absolve you of any
guilt, but it is clear that Mr. Durham was running the show.
It is clear that Mr. Durham was spending this money as he saw
fit, and it is clear that you didn't like that. And that
had been going on for years, and you didn't like it. But
your response to that, rather than say, and so, how does this
relate to the investors of our company? Your
response was, how can I get mine? When am I going to get
mine? That is how it was being played out in
the e-mails that came through. So that is about the nature
and circumstances of the offense.
Was his conduct worse than yours? Sure. Because he was -- he
turned on the tap and spent this money like it was
nobody's business. But you didn't do much
better, and you were living well beyond your
And then you
were the guy that bragged about it in that one phone call
talking about your gift of gab, and if you had that gift, you
didn't use it for good, you used it for evil.
And within the victim letters, I don't know if you
reviewed them, but within the victim letters a number of
people recounted conversations with you where you made
representations to them about the solvency of Fair and the
safety of their investment, personal conversations. And in
that way you were unique and you are different than Durham.
So basically what you did is you betrayed the
very people that you grew up -- I am not saying
literally but the type of people you grew up with, the people
that grew up the same way you did. And that is an upbringing
that should have taught you to do better, and I think it did.
You knew better. You knew better than what you were doing,
but boy, doggone it, you and Mr. Durham wanted to live that
lifestyle. For whatever reason, I don't know.
Crim. Dkt. 481 at 156-57 (emphasis added).
Mr. Cochran's proposed witnesses he alleges that Mr.
Dazey failed to call (see dkt. 2 at 10-11) provides
exculpatory or relevant information, as explained below.
• The two unknown male subjects (relating to how they
saw no problems with Fair's offerings and had received no
complaints against Fair) and the unknown female restaurant
manager (who allegedly knew he was unhappy about Durham's
use of Fair funds) remain unknown and thus would not be
useful witnesses. Moreover, their testimony is not
exculpatory or relevant.
• Ron Kaffen, a lawyer from an Ohio law firm, would have
allegedly testified that Mr. Cochran wanted all laws and
regulations to be complied with. This information is not
exculpatory of Mr. Cochran's use of ...