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Taylor v. United States

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

November 20, 2018




         This 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 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).


         Taylor 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. 46.[1] 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.

         The 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.

         III. ANALYSIS

         Taylor 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[2]. 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.

         A. Motion for Default Judgment

         Taylor 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 Cir. 1981).

         Taylor 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.

         Due to 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.

         Taylor's 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.

         Although 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.

         Whether 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.

         To be 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 motions similarly.

         For these reasons, Taylor's motion for default judgment, Dkt. [20], is DENIED.

         B. Right to Effective Assistance of Counsel

         A 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).

         The 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).

         C. Failure to Seek to Suppress Evidence

          Taylor 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.

         Taylor 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.

         Detective 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 girls, etc
Jane Doe: Young orgy
Jane Doe: Any of you and her?
Taylor: Yes
Taylor: How young are you ok with
Jane Doe: Legal age
Taylor: Ok
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.

         On 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.

         The 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.

         Law 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 items ...

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