ENDRE v. USA

Filing 16

ORDER - Denying Motion for Section 2255 Relief, Directing Entry of Final Judgment, and Denying Certificate of Appealability; Petitioner Timothy A. Endre has failed to show that he is entitled to the relief he seeks and, therefore, his motion fo r relief pursuant to 28 U.S.C. 2255 is denied. Judgment consistent with this Entry shall now issue. The clerk is directed to docket a copy of this Order in the criminal case, United States v. Endre, No. 1:14-cr-00108-SEB-MJD. Final judgment consistent with this Order shall now enter. Signed by Judge Sarah Evans Barker on 6/7/2018. Copy Mailed (CKM) Modified on 6/8/2018 (CKM).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TIMOTHY ANDREW ENDRE,
Petitioner,
v.
UNITED STATES,
Respondent.

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Case No. 1:16-cv-00419-SEB-MJD

Order Denying Motion for Section 2255 Relief,
Directing Entry of Final Judgment,
and Denying Certificate of Appealability
For the reasons explained in this Order, petitioner Timothy Andrew Endre’s motion for
relief pursuant to 28 U.S.C. ' 2255 is denied. In addition, the Court finds that a certificate of
appealability should not issue.
I. The Section 2255 Motion
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal
prisoner brings a collateral challenge to 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
Section 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 Section 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).

With this framework in mind, the Court turns to Mr. Endre’s motion.
II. Factual Background
On June 24, 2015, Timothy Endre pleaded guilty in Southern District of Indiana case
number 1:14-cr-00108-SEB-MJD, to one count of coercion or enticement of a minor to engage in
sexual activity, a violation of 18 U.S.C. § 2422(b). An amended plea agreement had been filed the
same day, amending a plea agreement filed on June 13, 2015. The amended plea agreement called
for a sentence of 212 months’ imprisonment and, instead of a lifetime of supervised release,
Mr. Endre could ask the Court for a ten-year period of supervised release instead. The original plea
agreement and the amended version contained an appeal waiver provision. Before the plea hearing
held June 24, 2015, the parties filed a stipulated factual basis. Mr. Endre signed the stipulation.
At the plea hearing Mr. Endre’s guilty plea was accepted. The Court considered the parties’
arguments on sentencing and imposed 212 months’ imprisonment to be followed by ten years of
supervised release. The judgment memorializing the sentence was filed June 29, 2015. Less than
one year later, on February 22, 2016, Mr. Endre filed his motion for post-conviction relief pursuant
to 28 U.S.C. § 2255.
Mr. Endre’s motion sets out twenty-three grounds for relief:
(1) his plea of guilty was not knowingly and voluntarily made;
(2) his defense counsel was ineffective for not correcting incorrect
information in the pre-sentence report;
(3) his defense counsel was ineffective for not challenging the prosecutor’s
misleading statements made at sentencing;
(4) his defense counsel was ineffective for not advocating for him at
sentencing concerning the incorrect information in the pre-sentence report;
(5) his defense counsel was ineffective for not providing the court with
justification to exercise discretion and reduce his sentence;
(6) his defense counsel was ineffective for failing to argue several
circumstances that would have resulted in a downward departure of the sentence;
(7) his defense counsel was ineffective for failing to argue circumstances
that would have led to the removal of enhancement points or conviction on a lesser
charge;
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(8) his defense counsel was ineffective for failing to argue “30 or 40” issues
that Mr. Endre brought to his attention about the pre-sentence investigation;
(9) his defense counsel was ineffective for stipulating to a prior conviction
when no such conviction existed;
(10) a prior conviction from Ohio was construed as a sex offense when it
was not a sex offense and his defense counsel was ineffective for not arguing this
point;
(11) his defense counsel was ineffective failing to inform the Court that
Mr. Endre was not taking his mental health medications and had offered to assist
the government in finding persons who were harming children;
(12) his defense counsel was ineffective for failing to challenge the
sufficiency of the evidence;
(13) his defense counsel was ineffective for failing to object to the
prosecution’s use of a prior conviction that was not a sex-related offense;
(14) his defense counsel was ineffective for failing to correct false and
misleading information about the prior conviction, which was not a sex-related
offense, and an allegation in that prior conviction that was fabricated by the
probation department;
(15) his defense counsel was ineffective for failing to investigate the
circumstances of the prior conviction;
(16) his defense counsel was ineffective for failing to follow Mr. Endre’s
instructions to object to the use of the prior conviction, the imposition of restitution,
the basis for federal jurisdiction, and to provide him with copies of all of the
prosecution’s evidence;
(17) his defense counsel was ineffective for failing to obtain scientific
evidence and DNA reports, which would have shown that no crime occurred;
(18) his conviction on a coerced guilty plea is a miscarriage of justice;
(19) his defense counsel was ineffective when he lied to Mr. Endre about
his options and consequences of various courses of actions;
(20) his defense counsel was ineffective when he provided erroneous and
faulty legal advice;
(21) his defense counsel was ineffective for failing to locate and interview
defense witnesses – the complaining witness – and failing to investigate the case;
(22) his defense counsel was ineffective for failing to conduct legal research
into the charge against Mr. Endre; and
(23) his defense counsel was ineffective for failing to provide pre-trial
discovery documents to Mr. Endre for review.
Dkt. 1.
The United States in response contends that pursuant to the plea agreement and appeal
waiver contained therein, all of these issues are waived except for the question of whether
Mr. Endre’s trial counsel provided effective assistance of counsel in the negotiation of the plea

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agreement. Dkt. 10, p. 4. Paragraph 12 of the amended plea agreement provides, in part, that
Mr. Endre “expressly agrees not to contest the conviction or sentence or the manner in which it
was determined in any collateral attack . . . .” Crim. dkt. 69. The United States also contends that
Mr. Endre’s trial counsel was not ineffective.
III. Discussion
In order for a plea to be valid – and accordingly the included appeal waivers – it must be
made voluntarily, knowingly, and intelligently. United States v. Hays, 397 F.3d 564, 567 (7th Cir.
2005) (citing United States v. Gilliam, 255 F.3d 428, 432-33 (7th Cir. 2001)). “A defendant may
validly waive both his right to a direct appeal and his right to collateral review under § 2255 as
part of his plea agreement.” Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011); see also
Solano v. United States, 812 F.3d 573, 577 (7th Cir. 2016). Such waivers are upheld and enforced
with limited exceptions in cases in which (1) “the plea agreement was involuntary,” (2) “the district
court relied on a constitutionally impermissible factor (such as race),” (3) “the sentence exceeded
the statutory maximum,” or (4) the defendant claims ineffective assistance of counsel in relation
to the negotiation of the plea agreement. Id. (internal quotations omitted); Gaylord v. United States,
829 F.3d 500, 505 (7th Cir. 2016).
At the June 22, 2015, hearing on Mr. Endre’s change of plea and sentencing, the Court
made several inquiries about Mr. Endre’s understanding of the plea agreement and the factual basis
for the plea. See crim. dkt. 78 (transcript of hearing). Relevant excerpts of the hearing show these
exchanges:
THE COURT: So I have not touched on all aspects of your plea agreement,
but I want to make sure you understand that the entire agreement is binding on you,
and it’s like a contract with the Government. So even though I haven’t addressed it
specifically in this hearing, the entire agreement is binding on you just as it is
binding on the Government. Is that how you understand it, sir?
THE DEFENDANT: Yes, ma’am.
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THE COURT: Did anyone persuade you or coerce you against your will to
enter into this agreement?
THE DEFENDANT: No, ma’am.
Crim. dkt. 78, p. 11.
THE COURT: A similar question about your petition to enter a plea of
guilty. Did anyone persuade you or coerce you against your will to make that filing
with the Court?
THE DEFENDANT: No, ma’am.
THE COURT: When you signed these documents, again, was that your
indication that you agree to what's written here and understand that it is part of your
obligation now?
THE DEFENDANT: Yes, ma’am.
Id., p. 12.
THE COURT: Do you understand that if you enter your plea and I accept
it, that you're giving up your right to a trial and to, we say, an appeal on the merits,
which means an appeal that tests the sufficiency of the Government evidence; do
you understand that?
THE DEFENDANT: Yes, ma'am.
THE COURT: You may also be giving up your right to appeal the sentence
as well. Do you understand that?
THE DEFENDANT: Yes, ma’am.
THE COURT: Is that what you want to do, sir?
THE DEFENDANT: Yes, ma’am.
THE COURT: Has anyone persuaded or coerced you against your will to
make those decisions?
THE DEFENDANT: No, ma’am.
Id., pp. 17-18.
THE COURT: Now, prior to taking the bench this afternoon, I was provided
with a factual summary of the evidence that underlies this charge against you. So
let me ask a couple of questions first. Did you read it before you signed it?
....
MR. SCHRAGER: Your Honor, I have discussed this with Mr. Endre, and
he does recall reading it. And frankly, I do, too. My predecessor is the one that
negotiated that and discussed it with Mr. Endre. I discussed it with him as well way
back when, and he fully abides by and accepts all of the material facts in that
statement, and accepts that as a factual basis. And there’s no need for either the
Court, the Government or its agents to reread that document from our estimation.
It’s up to you, of course.
THE COURT: Okay. My question to you, Mr. Endre, will be this. Is what’s
written here true as far as you know?
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THE DEFENDANT: Yes, ma’am.
THE COURT: Do you have any disagreement or any quarrel with these
facts?
THE DEFENDANT: No, ma’am.
THE COURT: Did you do what it says you did here, sir?
THE DEFENDANT: Yes, ma’am.
Id., pp. 20-21.
THE COURT: My own review of these facts allows me to conclude as well
that they are sufficient, that if this evidence were presented to a jury, that a jury
could find on this basis that you’re guilty as charged in this information. So I accept
these facts as sufficient in that sense. So having made these explanations to you,
Mr. Endre, and having considered your responses, and having now before me and
well in mind the facts that underlie the charge, I put the question to you, sir, how
do you plead to the charge against you in this information, guilty or not guilty?
THE DEFENDANT: Guilty, Your Honor.
THE COURT: It is the finding of the court in the case of United States of
America versus Timothy Andrew Endre, that Mr. Endre is fully competent and
capable of entering an informed plea, that he’s aware of the nature of the charges
and the consequences of his plea, that his plea of guilty is a knowing and voluntary
plea supported by an independent basis in fact containing each of the essential
elements of the offense. His plea is therefore accepted and he’s now adjudged guilty
of the offense charged in the information.
Id., p. 22.
THE COURT: So [the probation officer] prepared the Presentence
Investigation Report that we’re going to use now to tee up the various sentencing
issues. So let me just start with that. Did you get an opportunity to review this report
and -THE DEFENDANT: Yes, ma’am.
THE COURT: -- did you have sufficient time to discuss it with Mr.
Schrager?
THE DEFENDANT: Yes, ma’am.
THE COURT: Mr. Schrager, did you have sufficient time to review the
report and discuss it with Mr. Endre?
MR. SCHRAGER: Yes, I did, Your Honor.
THE COURT: Mr. DeBrota, did you have sufficient time to review the
report and prepare?
MR. DeBROTA: Yes, Your Honor.
Id., p. 23.

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Mr. Endre’s contention that he involuntarily entered into his plea agreement due to his
counsel’s alleged promise that he would receive a forty-eight-month sentence “is belied by his
own statements at the change of plea hearing, which are presumed truthful.” Bridgeman v. United
States, 229 F.3d 589, 592 (7th Cir. 2000); see Hurlow v. United States, 726 F.3d 958, 968 (7th Cir.
2013) (“[R]epresentations made to a court during a plea colloquy are presumed to be true.”)
(citation and internal quotation marks omitted); Nunez v. United States, 495 F.3d 544, 546 (7th
Cir. 2007) (“Nunez I”) (“Defendants cannot obtain relief by the expedient of contradicting
statements freely made under oath, unless there is a compelling reason for the disparity.”),
judgment vacated and remanded on other grounds, 554 U.S. 911 (2008).
His statements to the Court are given a “strong presumption of verity,” United States v.
Silva, 122 F.3d 412, 415 (7th Cir. 1997) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)),
because “when the judge credits the defendant’s statements in open court, the game is over,”
United States v. Stewart, 198 F.3d 984, 987 (7th Cir. 1999). “[A] defendant has no chance of
success on appeal when the judge elects to treat freely given sworn statements as conclusive. Entry
of a plea is not some empty ceremony, and statements made to a federal judge in open court are
not trifles that defendants may elect to disregard.” Id.
The plea agreement and the colloquy at the change of plea hearing makes it clear that
Mr. Endre knew that the agreement was for 212 months’ imprisonment, which was in the middle
of the guideline range, and a period of ten years’ supervised release rather than for life. The plea
was knowingly, voluntarily, and intelligently entered. Mr. Endre also knew that the waivers for a
direct appeal and collateral challenge to his conviction had also been waived as provided for in
Paragraph 12 of the plea agreement. Crim. dkt. 69.

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An appeal waiver stands or falls with the guilty plea, United States v. Zitt, 714 F.3d 511,
515 (7th Cir. 2013); United States v. Sakellarion, 649 F.3d 634, 639 (7th Cir. 2011), so Mr. Endre’s
waiver must be enforced. Considering the discussion below, there are no exceptions to an appeal
waiver that would apply here. See United States v. Adkins, 743 F.3d 176, 192–93 (7th Cir. 2014).
The sentence does not exceed the statutory maximum and the Court did not rely on any
unconstitutional factor when imposing Mr. Endre’s sentence.
Therefore, pursuant to the direct appeal waiver and the collateral challenge waiver, each of
Mr. Endre’s twenty-three grounds for relief have been waived. However, to the extent that any of
the grounds can be gleaned to assert a claim that defense counsel’s ineffectiveness as a whole
caused Mr. Endre to sign the plea agreement, “An attorney’s ineffectiveness with regard to the
plea agreement as a whole, and not just the specific waiver provision at issue, renders the waiver
unenforceable.” E.g., Bridgeman v. United States, 229 F.3d 589, 591 (7th Cir. 2000) (“A plea
agreement that also waives the right to file a § 2255 motion is generally enforceable unless the
waiver was involuntary or counsel was ineffective in negotiating the agreement.” (citation
omitted)); Hodges, 259 F.3d 655, 659 n. 3 (7th Cir. 2001) (“[A] valid appellate waiver contained
in a plea agreement does not preclude a defendant’s claim that the plea agreement itself was the
product of ineffective assistance of counsel.” (citing Jones, 167 F.3d a1142, 1144-45 (7th Cir.
1999)); Jemison, 237 F.3d 911, 916 n. 8 (7th Cir. 2001) (“We have previously recognized that a
valid appellate waiver, though binding in other respects, does not preclude judicial review of a
criminal defendant’s assertion that her plea agreement was itself the product of ineffective
assistance of counsel.” (citation omitted).” Hurlow v. United States, 726 F.3d 958, 965 (7th Cir.
2013).

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As to any ineffective assistance of counsel claim that could be construed as properly before
the Court, Mr. Endre 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 Mr. Endre cannot establish one of the Strickland prongs, his
claim fails. The Court need not consider the other prong. Groves v. United States, 755 F.3d 588,
591 (7th Cir. 2014). In order to satisfy the prejudice component, Mr. Endre 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. Brown v. Finnan, 598 F.3d
416, 422 (7th Cir. 2010), instructs that “it is the overall deficient performance, rather than a specific
failing, that constitutes the ground of relief.”
Mr. Endre’s ineffective assistance of counsel claims fail on the prejudice prong. The plea
agreement negotiated for Mr. Endre included a three-level sentence reduction for acceptance of
responsibility, a sentence capped at 212 months, and – instead of supervised release for life – a
fixed ten-year term of supervised release. Without the assistance of counsel, Mr. Endre faced 235
months imprisonment plus the term of lifetime supervised release.
Additionally, the stipulated factual basis for the plea establishes Mr. Endre’s guilt to the
charge and no discernable defenses. Indeed, Mr. Endre does not posit a defense in his Section 2255
motion or reply. His voluminous motion and reply present no competent evidence of any issue that
could have affected the outcome of this case. Mr. Endre cannot, on these facts, establish the
prejudice prong of a Strickland claim.
Any ineffective assistance of counsel claim that survived the collateral challenge waiver is
denied.

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IV. Conclusion and Certificate of Appealability
For the reasons explained in this Order, Petitioner Timothy A. Endre has failed to show
that he is entitled to the relief he seeks and, therefore, his motion for relief pursuant to 28 U.S.C.
§ 2255 is denied. Judgment consistent with this Entry shall now issue.
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing
' 2255 proceedings, and 28 U.S.C. ' 2253(c), the Court finds that reasonable jurists would not
find this court’s “assessment of the constitutional claims debatable or wrong,” and (2) that
reasonable jurists would not find “it debatable whether the petition states a valid claim of the denial
of a constitutional right” and “whether [this court] was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies a certificate of appealability.
The clerk is directed to docket a copy of this Order in the criminal case, United States v.
Endre, No. 1:14-cr-00108-SEB-MJD. Final judgment consistent with this Order shall now enter.
IT IS SO ORDERED.

6/7/2018
Date: _____________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Timothy A. Endre
12132-028
United States Penitentiary Terre Haute
P.O. Box 33
Terre Haute, IN 47808
Electronically Registered Counsel

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