United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING MOTION FOR DEFAULT JUDGMENT, DENYING IN
PART MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255, AND
DIRECTING FURTHER PROCEEDINGS
WALTON PRATT, JUDGE
matter is before the Court for adjudication of Petitioner
Russell Taylor's (“Taylor”) Motion for
Default Judgment (Dkt. 20) and his Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence
(“§ 2255”) (Dkt. 1). For the reasons set
forth below, Taylor's motion for default judgment is
denied, and his § 2255 motion is
denied in part. However, further proceedings
are necessary to resolve one issue raised in the § 2255
STANDARD OF REVIEW
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
pled guilty on December 10, 2015, to twelve counts of sexual
exploitation of children in violation of 18 U.S.C. §
2251(a) and one count of receipt and distribution (and
conspiracy to receive and distribute) child pornography in
violation of 18 U.S.C. § 2252(a)(2). Crim. Dkt.
Each of Taylor's exploitation charges carried a maximum
sentence of 30 years' imprisonment, and the pornography
charge carried a maximum sentence of 20 years. See
18 U.S.C. § 2251(e); 18 U.S.C. § 2252(b)(1). Taylor
pled guilty pursuant to an agreement with the United States
of America (the “Government”). His plea agreement
was pursuant to Federal Rule of Criminal Procedure
11(c)(1)(B), therefore, Taylor's sentence was within the
discretion of the Court. Crim. Dkt. 28 at 4. Taylor was
placed under oath and examined concerning his Petition to
Enter a Plea of Guilty. The Court determined that Taylor was
competent to enter a plea of guilty and that his plea was
made knowingly and voluntarily. At the end of the hearing,
the plea of guilty and terms of the agreement were accepted,
and Taylor was adjudged guilty.
Court proceeded to impose a sentence. As part of the
agreement, the Government would not recommend an aggregate
sentence longer than 35 years of imprisonment. Crim. Dkt. 28
at 6, ¶ 9(A). Taylor agreed not to ask for a sentence
below 15 years of imprisonment. Id. at 6, ¶
9(C). The Government also agreed that Taylor would qualify
for reductions in his offense level under the United States
Sentencing Guidelines based on his acceptance of
responsibility and substantial assistance to the Government.
Id. at 6 ¶43, Id. at 22 ¶55. The
Court inquired as to whether Taylor and his counsel had
reviewed the Presentence Investigation Report
(“PSR”) and counsel responded affirmatively.
Crim. Dkt. 49 at 43. The PSR contained a detailed explanation
of the Offense Conduct. Crim. Dkt. 37 at 4-7, ¶¶
6-16. The Court then addressed Taylor's objections and
corrections to the PSR and accepted Taylor's objections
and corrections except for Objection #2 to paragraph 11(b),
which was taken under advisement. Dkt.49 at 44-47. During
pronouncement of the sentence, the Court overruled Objection
#2, that Taylor did not have sexual contact with child
victims 1 and 2, based on evidence presented during the
hearing. Id. at 165. Taylor was sentenced to 324
months' imprisonment on each of Counts 1-12 (Sexual
Exploitation of a Child) and to 240 months on Count 13
(Distribution and Receipt of Child Pornography and Conspiracy
to Distribute and Receive Child Pornography), each to be
executed concurrently. Crim. Dkt. 46 at 3.
presents two arguments in his § 2255 motion for why his
conviction and sentence are unlawful. Both arguments are
rooted in claims that his plea is invalid because he entered
it without the benefit of effective assistance by his trial
counsel, Bradley Banks (“Banks”), as guaranteed
by the Sixth Amendment. First, Taylor argues that Banks was
ineffective for failing to file a motion to suppress evidence
obtained in two searches of his residence. Second, he argues
that Banks failed to advise him that there was no evidentiary
or factual basis to support three of the exploitation
charges. Before addressing the factual details relevant to
each argument, the Court must first address Taylor's
Motion for Default Judgment.
Motion for Default Judgment
seeks default judgment pursuant to Federal Rule of Civil
Procedure 55 based on the Government's delays in
responding to the issues presented in the § 2255 motion.
(Dkt. 20.) A default judgment may be entered against the
United States, its officers, or its agencies only if the
claimant establishes a claim or right to relief by evidence
that satisfies the court. Fed.R.Civ.P. 55(d). Although the
court has authority to enter a default judgment against the
United States, “a default judgment, without full
inquiry into the merits, is especially rare when entered
against a custodian in a habeas corpus proceeding”.
Ruiz v. Caddy, 660 F.2d 337, 340 (7th
filed his § 2255 motion on December 29, 2016. The
Government's Response was due on February 17, 2017;
however, the Government sought and obtained two extensions.
When they filed their Response on May 9, 2017, the Government
woefully failed to address the merits of Taylor's motion
and asserted only that his claims were barred by waiver or
procedural default- a position that was unsupportable based
on settled law in the Seventh Circuit. See Dkt. 15.
Taylor filed a timely Reply to the Government's Response.
the complexity of Taylor's claims, the Court found that
briefing on the merits would be beneficial and on its own
motion, granted the Government 60 days to supplement its
Response. Id. After requesting an additional
extension, the Government filed a supplemental Response to
Court's Entry on June 13, 2018. (Dkt. 22.) Again, Taylor
timely replied on July 13, 2018 and the merits of this matter
were fully briefed-more than 18 months into the action.
argument for default judgment is simple: The Government's
delays in briefing the merits of the § 2255 motion were
extensive and unjustified. This argument is compelling given
that the Government's initial response was both
incomplete and contradicted by settled law. Nevertheless,
default judgment is inappropriate in this case because the
evidence currently available does not establish a claim or
right to satisfy the Court that Taylor is entitled to all the
relief he seeks through a § 2255 motion.
default judgment is not warranted based on the merits of
Taylor's case, the Court finds it necessary to address
two aspects of the Government's Response to the motion
for default judgment. The Government argues that default
“would be especially inequitable” in this case
because Taylor “pleaded guilty to repulsive child
pornography counts . . . and is obviously guilty . . .
.” (Dkt. 23 at 4.) Further, the Government asserts that
Taylor's motion for default judgment “requests an
extreme sanction in a non-extreme case . . . .”
Id. at 5. These assertions signal a disregard for
the essence of § 2255 litigation. Of course, every
§ 2255 movant has either pled guilty to a crime or been
convicted of one by a jury. Section 2255 allows for the
possibility that a movant has pled guilty or been convicted
under circumstances that our legal system does not permit.
That the movant has pled guilty or been convicted does not
relieve the Government of its responsibility to seriously and
timely address that possibility.
the Government's delays in this proceeding present an
“extreme case” is perhaps a subjective inquiry.
But the Government's approach to this case must not be
viewed as acceptable. Taylor's motion asserts that he
should not be in prison. The Government naturally disagrees,
but the seriousness of the claim cannot be questioned. The
suggestion that Taylor's guilty plea removes any
consequence or urgency from his § 2255 motion is
inappropriate. This implication has no place in § 2255
litigation-especially where, as here, it has no bearing on
the issues before the Court. Any delay in resolving a
meritorious claim is obviously harmful, and Taylor's
motion includes arguments that at least merit further
development. Meanwhile, as the Court explains further in Part
III(D)(4) below, the Government still has not thoroughly
addressed all the critical issues-even after being granted a
second opportunity to do so.
clear, the deficiency the Court wishes to confront is not
strictly the amount of time that elapsed before Taylor's
motion was fully briefed. The Court recognizes the realities
of litigation often require deadlines to be extended. And,
obviously, the Court has granted the Government multiple
extensions in this case. Rather, the Court is disturbed and
disappointed by the lack of seriousness and attention the
Government has applied to this action. Although default
judgment is not warranted in this case, the Government should
not view the Court's denial of Taylor's motion for
default judgment as a license to approach future § 2255
these reasons, Taylor's motion for default judgment, Dkt.
, is DENIED.
Right to Effective Assistance of Counsel
petitioner claiming ineffective assistance of counsel bears
the burden of showing that (1) trial counsel's
performance fell below objective standards for reasonably
effective representation, and (2) 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). To satisfy the first prong of the
Strickland test, the 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. To
determine whether counsel satisfied that standard, the Court
must “first determine whether counsel's
representation ‘fell below an objective standard of
reasonableness.'” Padilla v. Kentucky, 559
U.S. 356, 366 (2010) (quoting Strickland, 466 U.S.
at 688). Then the Court must “ask whether ‘there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.'” Padilla, 559 U.S.
at 366 (quoting Strickland, 466 U.S. at 694).
Supreme Court framed the determinative question as
“whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.”
Strickland, 466 U.S. at 686. “It is essential
to evaluate the entire course of the defense, because the
question is not whether the lawyer's work was error-free,
or the best possible approach, or even an average one, but
whether the defendant had the ‘counsel' of which
the sixth amendment speaks.” Williams v.
Lemmon, 557 F.3d 534, 538 (7th Cir. 2009). Nevertheless,
a “single error may suffice if that error is
sufficiently egregious and prejudicial.” Id.
(internal citations and quotation marks omitted).
Failure to Seek to Suppress Evidence
argues that the evidence that would have been used to convict
him at trial was obtained in violation of the Fourth
Amendment and that his trial attorney rendered
constitutionally ineffective assistance when he declined to
move to suppress that evidence.
became the subject of an investigation by Indiana State
Police (“ISP”) in September 2014 regarding
possible bestiality and child pornography. According to a
search warrant affidavit by ISP Detective Kevin Getz
(“Detective Getz”), a woman identified as Jane
Doe approached Master Trooper Patrick Etter and stated that
Taylor “had offered to send her images of young
girls.” Dkt. 1-2 at 14, ¶ 21. On October 3, 2014,
Jane Doe met with Detective Getz and consented to a forensic
extraction of data from her cell phone. Id. at 15,
¶ 23. Detective Getz's affidavit indicates that Jane
Doe maintained a friendship with Taylor and his then wife,
Angela Taylor (also referred to as Angela-Russ), and that
they sometimes engaged in sexual activities together. See
Id. at 15-19, ¶¶ 23-28.
Getz's affidavit reproduces text messages he says were
extracted from Jane Doe's cell phone and that are
attributed to Jane Doe, “Angela-Russ, ” and
“Russ Taylor.” Id. at 16-19, ¶ 28.
The Court understands this to mean that the messages were
sent to and received from phone numbers assigned the
identifiers “Angela-Russ” and “Russ
Taylor” in Jane Doe's cell phone. These messages
include graphic references to sexual activities involving
Taylor, Angela Taylor, Jane Doe, and a horse. Id.
They also include an exchange in which Jane Doe seeks, and
the number attributed to Taylor offers to provide, apparently
explicit images of young girls:
Jane Doe: Any more pics I can masturbate over?
Taylor: Lol. Tell me what you want to see. I got it all.
Jane Doe: Everything.
Taylor: Pics or video?
Jane Doe: Both?
Jane Doe: I want that
Taylor: You get them Jane Doe: Yeah! Can I have more?
Jane Doe: I love them! So hot
Taylor: Yes What. Type? Her with dogs, orgy, s and m, young
Jane Doe: Young orgy
Jane Doe: Any of you and her?
Taylor: How young are you ok with
Jane Doe: Legal age
Taylor: I wanted to ask lol. Keep in mind we do travel to
Thailand on occasion:-)
Id. Detective Getz attested that, through his
training and experience, he knew that “persons who have
a sexual interest in children have been known to travel to
Thailand because it is a hotspot for child sex
tourism.” Id. at ¶ 25.
April 23, 2015, Detective Getz obtained a warrant to search
Taylor's home based on this information. (Dkt. 1-1.) The
warrant authorized the search and seizure of computers and
electronic storage devices. Id. The warrant stated
that these items would “be seized and then later
searched for evidence relating to the possession and / or
distribution of child pornography.” Id. at 3.
The warrant also authorized the search and seizure of:
All copies and/or excerpts from visual images of persons
under the age of eighteen (18) years old engaged in sexual
acts and/or poses, that is believed to be child pornography
in violation of Indiana statute, and any evidence of
possession and/or dissemination of child pornography,
contained on the electronic storage media seized as a result
of this search warrant.
Id. at 4.
search warrant contains three references to child pornography
that are accompanied by the handwritten notations “and
bestiality” or “and/or bestiality.”
Id. at 3-4. One of the sections describing the
electronic storage devices to be searched is also accompanied
by the handwritten notation “cell phones.”
Id. at 3. All handwritten notations are accompanied
by the initials “KLG, ” which the Court
understands to belong to Detective Getz. It is not clear
whether these notations were written before or after the
judge issued the search warrant.
enforcement officers served the search warrant on April 29,
2015. A second search warrant affidavit states as follows:
During a forensic search of multiple media devices,
detectives observed multiple video files of minor children in
a bedroom and bathroom. Many of these videos showed the
exposed genitalia of the minor children. The children are
believed to be the 16, and for 14 year old stepdaughters of
Taylor and the 12 year old step son of Taylor. When these