COCHRAN v. USA
Filing
20
Order Denying Motion for Relief Pursuant to 28 U.S.C. § 2255 and Denying a Certificate of Appealability - For the 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. For the reasons explained in this Entry, Mr. Cochran is not entitled to relief on his § 2255 motion. There was no ineffect ive assistance of counsel, no errors in the sentencing proceedings or calculations, and no judicial misconduct. Accordingly, his motion for relief pursuant to § 2255 is denied and this action is dismissed with prejudice. Judgment consistent w ith this Entry shall now issue and a copy of this Entry shall be docketed in No. 1:11-cr-00042-JMS-DML-2. For the reasons stated in this Entry, the Court denies a certificate of appealability. (SEE ENTRY). Copy to petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 5/16/2018.(APD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JAMES F. COCHRAN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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No. 1:17-cv-01569-JMS-DLP
Order Denying Motion for Relief Pursuant to 28 U.S.C. § 2255
and Denying a Certificate of Appealability
For the 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.
I.
§ 2255 Standard
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 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 211 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).
Mr. 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.
On 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.
On 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.
On 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
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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.
On 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).
On May 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
resolution.
III.
Discussion
Over 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
3
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.
A.
Ineffective Assistance of Counsel
Apparently 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.
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
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).
4
1.
Ineffective Assistance of Trial Counsel
Mr. 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.
a.
Failing to File a Motion to Sever
Mr. 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.
There 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.
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Here, 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.
In 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).
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Accordingly, Mr. Cochran has failed to demonstrate that there was any deficient
performance on the part of trial counsel nor prejudice relating to this issue.
b.
Failing to Call Certain Witnesses
Mr. 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.
“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.
“Complaints 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
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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).
During 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 means.
…
And your history and characteristics. You are from these people. These are people
you grew up with. This was your upbringing. This is, you know, all the folks whom
you defrauded were just like your family. And I say that because I have to consider
sort of the nerve that you showed in lying to their faces, and you were the guy that
lied. 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.
8
Crim. Dkt. 481 at 156-57 (emphasis added).
None of 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 his “gift of gab” to defraud investors.
•
John Head, President of Fair from 2002-2008, would have allegedly testified that Durham
was the problem with funds being used where they should not have been. There is no
dispute that Durham was the main culprit with respect to the use of funds. This information
is not also exculpatory of Mr. Cochran use of his “gift of gab” to defraud investors after he
already knew of the problem.
•
Terry Whitesell, President of Obsidian, would have allegedly testified that Mr. Cochran
complained to him about Durham’s use of the funds. Again, this testimony is not
exculpatory of Mr. Cochran’s use of his “gift of gab” to defraud investors.
•
Jeff Birk would allegedly “testify of all the money taken by Durham from the years 20022004 and maybe into 2005.” Like the prior alleged testimony, there was no dispute as to
Durham’s use of the funds and this testimony would not have been exculpatory.
Mr. Cochran fails to explain how any of these witnesses would have changed the outcome
of his trial. Given the duplicative and non-exculpatory nature of this proffer of testimony, Mr.
Dazey’s informed strategic decisions to not pursue these lines of testimony are “virtually
unchallengeable.” Strickland, 466 U.S. at 690. Moreover, Mr. Cochran fails to show, under the
second prong of Strickland, that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Accordingly, Mr. Dazey’s failure to call or investigate these witnesses was not ineffective
assistance of counsel.
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c.
Failing to Allow Him to Testify
Mr. Cochran claims he was denied effective assistance of counsel because he was not
permitted to testify at his trial even though he wanted to. See dkt. 2 at 2, ¶¶ 4, 6; 12-13, ¶ 34; 14,
¶ 41. Mr. Cochran asserts he would have testified regarding the following:
Id. at 12-13, ¶ 34.
Although a defendant has a constitutional right to testify on his own behalf, Mr. Cochran
must show that his attorney prevented him from testifying and that there is a reasonable probability
that his failure to testify affected the outcome of the trial. See Barrow v. Uchtman, 398 F.3d 597,
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608 n. 12 (7th Cir. 2005); see also Alexander v. United States, 219 Fed. Appx. 520, 523 (7th Cir.
2007) (“a defendant … must still show…that there is a reasonable probability that his failure to
testify affected the outcome of the trial”); Canaan v. McBride, 395 F.3d 376, 385-86 (7th Cir.
2005) (explaining counsel’s deficient performance regarding defendant’s right to testify also must
undermine confidence in outcome of trial to satisfy Strickland).
Here, it is not clear that Mr. Dazey prevented Mr. Cochran from testifying, nor does Mr.
Cochran specifically assert such in his affidavit. Even if Mr. Cochran could show that Mr. Dazey’s
performance was deficient for failing to call him as a witness, Mr. Cochran fails to show that there
is a reasonable probability that his failure to testify affected the outcome of the trial. There was
overwhelming evidence presented by the government that, although Mr. Cochran objected to Mr.
Durham of his use of the funds, Mr. Cochran went along with the scheme for his own economic
benefit. See, e.g. Crim. Dkt. 481 at 150-154. None of Mr. Cochran’s proposed testimony offers
anything exculpatory and instead merely alleges, without support, that he wanted to correct the
“Government’s twist” on wiretaps and statements. Looking to Mr. Cochran’s proposed exhibits
that allegedly benefit him, some of it actually hurts him. The following is just a selection:
•
Dkt. 1-1 at 20: “[I’ve] lived on $10K for the last 25 days……..almost a
month…….paying a few bills and keeping lights on…………i don’t have cash to
go to Mcdonalds for my kids”
•
Dkt. 1-1 at 40: “well I say it’s half my fucking money” “Why are things kept from
me when the money is half mine”
•
Dkt. 1-1 at 42: “Cochran loan 10,379,095.00”
•
Dkt. 1-1 at 43: “With all the above propositions, there is no consideration for me.
I dont [sic] know where to start with that either.”
•
Dkt. 1-1 at 48: “Since you and I are funding every damn item in all businesses, we
are now collaborating on outgoing funds……….”
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•
Dkt. 1-1 at 50: “…there was no benefit in it for me, except an interest percentage
on a Line of Credit to FFC. I see the purchase ($1.4MM[illegible]) of US Rubber
and glad its doing well, but no upside to me when it sells.” “So this brings me to
my feelings that it’s really time (Since 2002) for me to bring in $1mm per year. In
retrospect, it is time for this type compensation……..as strange as that seems from
me. With the new funds it will easily support this comp. package.”
As in the Alexander case, Mr. Cochran “ignores the reality that, had he taken the stand, he
surely would have been impeached with” the multitude of emails he wrote demanding his share of
the funds, “which would have weighed against his credibility.” See Alexander, 219 Fed. Appx. at
524. Viewed against the United States’ overwhelming evidence, it seems more likely that Mr.
Cochran’s testimony would have bolstered the jury’s confidence in its guilty verdict and been
interpreted as a display of Mr. Cochran’s “gift of gab.” See United States v. Jocic, 207 F.3d 889,
893 (7th Cir. 2000) (explaining that, if “defendant decides to testify and deny the charges against
him and the finder of fact thinks he is lying, his untruthful testimony becomes evidence of guilt to
add to the other evidence”); United States v. Williams, 136 F.3d 1166, 1168 (7th Cir. 1998) (“[n]ot
the least of the evidence” the jury could have relied upon in finding defendant guilty was his own
testimony). Thus, even if the Court credits Mr. Cochran’s affidavit as proof of Mr. Dazey’s
deficient performance under the first prong of Strickland, he cannot show prejudice as required
under Strickland’s second prong.
d.
Failing to Investigate, Present Favorable Evidence and Conduct
Proper Trial Strategy
Mr. Cochran lists a litany of complaints about Mr. Dazey that in essence are for a failure
to investigate and failure to follow what he believes to be a proper trial strategy. The United States
terms Mr. Cochran’s arguments as “throw[ing] the kitchen sink at his attorney.” Dkt. 17 at 12.
Mr. Cochran asserts, among other things, that:
•
“there were things that should have been told to the jury that weren’t. Things that
Cochran should have told them”;
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•
•
•
•
•
•
•
•
•
•
•
Certain witnesses weren’t called;
Certain documents were not retrieved;
He wasn’t permitted to testify;
Mr. Dazey’s strategy was just going to “dumb it down”;
Mr. Dazey failed to properly cross-examine government witnesses;
Mr. Dazey’s “non-belief in [Mr. Cochran’s] truthful answers”;
“Dazey allowing the AUSA to rip materials out of a trial ‘book’ that I had prepared
for our use in the trial showing a lot of well-explained and pertinent information.”;
“Dazey’s refusal to put information upon the overhead projector”;
“Dazey had no ‘theory-of-the-case’ and no line of defense. [Cochran knew]
because [he] asked him what his strategy would be before trial and he would not
answer”;
Mr. Dazey’s refusal to question or depose government witnesses and refusal to call
any witnesses on Mr. Cochran’s behalf; and
Mr. Dazey’s “apparent total unpreparedness for trial.”
It is true that a defense attorney has a responsibility to reasonably investigate the
circumstances of the case against his client. See Bruce v. United States, 256 F.3d 592, 587-89 (7th
Cir. 2001). With respect to trial strategy, an attorney’s trial strategy is “virtually unchallengeable”
after counsel has conducted a thorough investigation of his client’s case. Sullivan v. Fairman, 819
F.3d 1382, 1391 (7th Cir. 1987) (citing Strickland v. Washington, 466 U.S. at 690-91). “[A] court
must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action “might be considered sound trial strategy.” Strickland, 466
U.S. at 689.
Mr. Cochran fails to overcome the presumption that Mr. Dazey’s questioning and general
defense was sound trial strategy. An attorney’s duty is not to raise every conceivable defense or
obstruction. Fuller v. United States, 398 F.3d 644, 652 (7th Cir. 2005). Although Mr. Cochran
lists a litany of what he believes are improper actions by Mr. Dazey, all are listed with meager to
no support and are meritless.
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The Court has already dismissed Mr. Dazey’s alleged failure to file a motion to sever, call
certain witnesses, or allow Mr. Cochran to testify. Statements like “there were things that should
have been told to the jury that weren’t. Things that Cochran should have told them” without more
cannot be credited because it is unclear what should have allegedly been told and how Mr. Cochran
was prejudiced by Mr. Dazey’s failure to have those things be told. The allegation that Mr. Dazey
did not believe Mr. Cochran’s allegedly truthful answers is also difficult to credit where Mr.
Cochran has not explained what statements, if any, Mr. Dazey chose not to believe. Moreover,
there is no constitutional right to have your attorney believe you are truthful.
Mr. Cochran alleges that Mr. Dazey’s strategy was just going to “dumb it down” and that
“Dazey had no ‘theory-of-the-case’ and no line of defense. [Cochran knew] because [he] asked
him what his strategy would be before trial and he would not answer.” Neither statement
overcomes the presumption that Mr. Dazey had a sound trial strategy. Frentz, 876 F.3d at 293.
Dumbing down incredibly complicated financial dealings between a network of companies over
the course of many years is not, on its face, a bad trial strategy in a jury trial. Moreover, the alleged
failure of Mr. Dazey to tell Mr. Cochran his trial strategy does not mean there was no theory and
no line of defense. Mr. Cochran fails to proffer what alleged alternate trial strategy he believes
would have been more appropriate such 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.
Similarly, Mr. Cochran’s claims that “Dazey allowing the AUSA to rip materials out of a
trial ‘book’ that I had prepared for our use in the trial showing a lot of well-explained and pertinent
information” and that Mr. Dazey refused “to put information upon the overhead projector” are
unsubstantiated and without merit where Mr. Cochran fails to explain what information was not
14
presented and how he was prejudiced. As to the failure to put information up on the overhead
projector, Mr. Cochran admits that Mr. Daezy did not want to bore the jury with information on
the overhead projector and instead would just give it to them. Dkt. 2 at 3. Thus, Mr. Cochran can
allege no prejudice because the jury apparently received and had access to the information.
As to Mr. Cochran’s claim that Mr. Dazey failed to properly cross-examine or question
government witnesses, “deciding what questions to ask a prosecution witness on crossexamination is a matter of strategy.” United States v. Jackson, 546 F.3d 801, 814 (7th Cir. 2008).
Courts “do not second guess the reasonable tactical decisions of counsel.” Johnson v. Thurmer,
624 F.3d 786, 792 (7th Cir. 2010). As with his other claims, Mr. Cochran fails to show how he
was prejudiced or that there was a “reasonable probability that, but for counsel’s errors, the result
of the proceedings would have been different.” Strickland, 466 U.S. at 687.
Mr. Cochran also alleges that Mr. Dazey failed to retrieve certain documents, but as with
other evidence and witness testimony proffered by Mr. Cochran, Mr. Cochran fails to show how
any of these documents would be relevant or exculpatory such that the result of the proceeding
would have been different.
Finally, Mr. Cochran’s claim of Mr. Dazey’s “apparent total unpreparedness for trial,”
without more cannot be credited where Mr. Dazey vigorously defended Mr. Cochran throughout
his trial and at sentencing.
Mr. Cochran’s efforts to point out allegedly minor errors here and there do not amount to
a showing of a constitutionally deficient performance under Strickland, particularly when viewed
in the context of counsel’s overall performance. See Brown v. Finnan, 598 F.3d 416, 422 (7th Cir.
2010) (“it is the overall deficient performance, rather than a specific failing, that constitutes the
ground of relief”) (internal citations omitted). At the end of the United States’ case, Mr. Dazey
15
moved, pursuant to Fed. R. Crim. P. 29(c), for a judgment of acquittal alleging insufficiency of
the evidence to support convictions on any of the charges against Mr. Cochran. Crim. Dkt. 377 at
173-74. Mr. Durham’s counsel notably did not file this motion, and Mr. Snow’s counsel just
adopted Mr. Dazey’s motion as his own. Although unsuccessful with his motion, Mr. Dazey
ultimately successfully obtained acquittal for his client on four of the counts. Rather than
ineffective counsel, Mr. Dazey provided effective assistance of counsel.
2.
Ineffective Assistance of Sentencing Counsel
In his petition, Mr. Cochran asserts that he is raising claims of “ineffective assistance of
counsel (‘IAC’) both at the trial stage and at sentencing and appeal.” Dkt. 1 at 8. However, Mr.
Cochran fails to expound on how his sentencing counsel was ineffective and therefore waives any
such arguments. The Seventh Circuit has repeatedly warned that “perfunctory and undeveloped
arguments, and arguments that are unsupported by pertinent authority, are waived (even where
those arguments raise constitutional issues).” United States v. Holm, 326 F.3d 872, 877 (7th Cir.
2003) (citing United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991); Fed R. App. P.
28(a)(4); United States v. Brown, 899 F.2d 677, 679 n.1 (7th Cir. 1990)).
The only allegation regarding ineffective assistance of sentencing counsel is in his
affidavit, where he states: “12. For sentencing, Dazey did not talk with me about Sentencing
Guidelines, loss calculations, relevant conduct or any of the things that were addressed during my
sentencing hearing.” Dkt. 2 at 6. Mr. Cochran’s lead counsel at sentencing was Mr. Cleary.
Because Mr. Cochran makes no statements or assertions against Mr. Cleary of ineffective
assistance of counsel at sentencing, there is no need for the Court to address Mr. Cochran’s
perfunctory claim of ineffective assistance of sentencing counsel.
16
3.
Ineffective Assistance of Appellate Counsel
Mr. Cochran argues that his appellate counsel was ineffective for failing to raise the
following issues on appeal: (1) the judge conducting part of his sentencing during Durham’s
sentencing without his presence; (2) the lack of any evidence suggesting the type of agreement
necessary for a conspiracy; (3) the use of guidelines related to Mr. Cochran being a manager of
five or more participants when only three were involved; and (4) the use of the foreseeability factor
as it related to Mr. Cochran and his non-involvement with the companies where certain of the
funds were funneled. Dkt. 1 at 21. However, beyond listing the issues, Mr. Cochran provides
meager to no arguments as to why these issues would have been “both obvious and clearly
stronger” than the issues raised. See Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994)
(“appellate counsel is ineffective if counsel fails to raise issues that are (1) obvious, and (2) clearly
stronger than the ones raised”), abrogated on other grounds by United States v. Ceballos, 302 F.
3d 679, 692 (7th Cir. 2002).
Accordingly, Mr. Cochran’s unsubstantiated claims of ineffective assistance of appellate
counsel fail. See Holm, 326 F.3d at 877. Certain of his claims are discussed in more detail below,
as relevant.
B.
Trial Court Erred in Not Appointing a Different Counsel for Sentencing
Mr. Cochran argues that the trial court erred in the “denial of substitute counsel for
sentencing.” Dkt. 1 at 22 (capitalization modified).
This claim could have been brought on direct appeal. Ordinarily, claims not raised on
appeal are procedurally defaulted. Barker v. United States, 7 F.3d 629, 632 (7th Cir. 1993). “A §
2255 petition is not a substitute for direct appeal.” Prewitt v. United States, 83 F.3d 812, 816 (7th
Cir. 1996) (citing Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir. 1989)). However,
17
constitutional claims may be raised for the first time in a collateral attack if the petitioner can show
cause for the procedural default and prejudice from the failure to appeal. United States v. Frady,
456 U.S. 152, 167-68 (1982); McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). In
order to show cause for a procedural default, Mr. Cochran must demonstrate that some objective
factor external to the record impeded his efforts to bring a claim on direct appeal. Murray v.
Carrier, 477 U.S. 478, 497 (1986). If a petitioner is unable to demonstrate both cause and
prejudice, he may be able to obtain habeas review only if he can persuade the court that the
dismissal of his petition would result in a fundamental miscarriage of justice – that is, “in an
extraordinary case, where a constitutional violation has probably resulted in the conviction of one
who is actually innocent.” Murray, 477 U.S. at 495.
Mr. Cochran does not address why these claims were not brought on direct appeal and does
not allege ineffective assistance of appellate counsel (despite doing so on other issues) and thus
fails to show cause for the procedural default. Moreover, Mr. Cochran has failed to show prejudice
or a fundamental miscarriage of justice from the dismissal of this claim.
Indeed, Mr. Cochran’s claim is meritless. Based on Mr. Cochran’s letter to the Court
regarding his objections to Mr. Dazey’s representation and Mr. Cochran’s motion for hearing on
status of counsel, Crim. Dkt. 396, the Court held a hearing to consider, in camera, his position on
the status of appointed counsel. Based on Mr. Cochran’s “express statement that he is not alleging
ineffective assistance of [Mr. Dazey],” the Court concluded that the recent difficulties between
Mr. Cochran and Mr. Dazey did “not rise to a level to disqualify current counsel from continued
representation.” Crim. Dkt. 400 (ex parte). Instead, the Court appointed co-counsel from the
Federal Community Defender office to serve as Mr. Cochran’s lead counsel, and Mr. Dazey
18
remained as co-counsel to ensure that his “familiarity with the case remain[ed] an available
resource.” Id.
Thus, habeas relief is unavailable to Mr. Cochran on this ground.
C.
Errors in the Sentencing Calculations
Mr. Cochran alleges that there was a mistake in his sentence calculations. Dkt. 1 at 8.
Specifically, he opposes the three-level enhancement he received pursuant to U.S.S.G. § 3B1.1 for
having a role as a manager or a supervisor of an organization or scheme involving at least five
individuals. See id. at 28-29. He alleges “there were just three criminal participants.” Id. at 28.
A claim of error in the court’s application of the Sentencing Guidelines is not cognizable
in a § 2255 motion. See Buggs v. United States, 153 F.3d 439, 443 (7th Cir. 1998) (“errors in the
implementation of the Sentencing Guidelines are generally not cognizable under collateral
attack.”); Scott v. United States, 997 F2d 340, 341-42 (7th Cir. 1993) (“[a] claim that the judge
misapplied the Sentencing Guidelines does not challenge the jurisdiction of the court or assert that
the judge exceeded the statutory maximum.”). “It is well settled that, absent a fundamental
miscarriage of justice, arguments based on the Sentencing Guidelines must be raised on direct
appeal or not at all.” Allen v. United States, 175 F.3d 560, 563 (quoting Martin v. United States,
109 F.3d 1177, 1178 (7th Cir. 1996) (per curiam)) (internal quotations removed). “[A]djusting
the offense level by two or three steps is exactly the routine decision that is supposed to be handled
… on direct appeal.” Id. (internal quotations and citations removed).
In defense, Mr. Cochran asserts that “[t]o the extent that this issue should have been raised
on direct appeal and wasn’t, it is yet another issue laid at the feet of Cochran’s Strickland-protected
lawyer,” dkt. 1 at 29, essentially attempting to recast his claim as one of ineffective assistance of
19
appellate counsel. See also id. at 21 (alleging ineffective assistance of appellate counsel on this
issue).
The Seventh Circuit is “reluctant to allow prisoners to circumvent the rule against raising
Sentencing Guideline arguments in collateral proceedings by recasting their Guidelines arguments
as claims of ineffective assistance of counsel.” Allen v. United States, 175 F.3d 560, 563 (7th Cir.
1999). Only “Sentencing Guidelines errors of constitutional proportion” that resulted from an
ineffective assistance of counsel may be considered. Id. However, “an attorney’s unreasonable
failure to identify and bring to a court’s attention an error in the court’s Guidelines calculations
that results in a longer sentence may constitute ineffective assistance.” United States v. Jones, 635
F.3d 909, 916 (7th Cir. 2011) (citing Glover v. United States, 531 U.S. 198 (2001)).
The Sentencing Guidelines provides that if “the defendant was a manager or supervisor
(but not an organizer or leader) and the criminal activity involved five or more participants or was
otherwise extensive, increase by 3 levels.” See U.S.S.G. § 3B1.1(b). The Guidelines defines a
“participant” as “a person who is criminally responsible for the commission of the offense, but
need not have been convicted. A person who is not criminally responsible for the commission of
the offense (e.g., an undercover law enforcement officer) is not a participant.” Id. at Application
Note 1. The Guidelines also explain that “[i]n assessing whether an organization is ‘otherwise
extensive,’ all persons involved during the course of the entire offense are to be considered. Thus,
a fraud that involved only three participants but used the unknowing services of many outsiders
could be considered extensive.” Id. at Application Note 3.
During the sentencing hearing, Mr. Cochran’s counsel, Mr. Dazey, vigorously opposed the
three-level enhancement, arguing that the identity of the other “participants” had never been
identified and therefore the number could not be established. Crim. Dkt. 481 at 43-45. The United
20
States countered that Mr. Cochran, as president and chairman of Fair, was the leader of Fair in
Ohio and supervised his employees there. Id. at 48-49. The United States also identified the
testimony of “Matt Ogden and Mr. DeRose who testified that they made false statements to
investors about why their payments were delayed, excuses like the check is in the mail, we are
having computer issues, things like that.” Id. at 49. “And if such excuses were not accepted by
the investors, they were told to escalate [the issue] to Mr. Cochran and he met with them directly.”
Id. At the Court’s request, the United States also specifically identified the minimum of five
participants necessary to meet this enhancement, which the Court accepted:
THE COURT: Let’s get to five. Who are the five people Mr. Dazey pointed out? ...
MR. SURMACZ: Right.
THE COURT: But who would you identify as the – you have mentioned DeRose
and Ogden.
MR. SURMACZ: I would also identify all the other investment representatives, and
I think there was evidence at trial that Fair had -- off the top of my head, you know,
eight to ten locations. And there are investor representatives at each of those
locations, and each one of those representatives was supervised by Mr. Cochran
ultimately as the president. And they were told to make similar statements to these
investors when issues came up with their investments. So [] Government’s position
would be every one of the investor representatives would be part of the scheme.
THE COURT: Okay.
Id. at 49-50. Mr. Cochran does not refute the United States’ identification of the five or more
participants, or that the criminal activity was otherwise extensive, causing over $200 million in
harm, see Durham, 766 F.3d at 687. Thus, the Court’s imposition of the 3-level enhancement was
appropriate.
Because there was no error in the Court’s application of the three-level enhancement
pursuant to U.S.S.G. § 2G2.2(b)(4), Mr. Cochran’s appellate counsel could not be deficient for
failing to appeal a meritless claim and did not therefore provide ineffective assistance of counsel
21
here. Faucett v. United States, 872 F.3d 506, 512 (7th Cir. 2017) (“Refraining from a meritless
sentencing argument cannot be characterized as objectively unreasonable.”); see also Fuller v.
United States, 398 F.3d 644, 652 (7th Cir. 2005) (An attorney’s duty is not to raise every
conceivable defense or obstruction, for a “lawyer has an obligation to be truthful and forthright
with the court, [and] he has no duty to make a frivolous argument.”); Makiel v. Butler, 782 F.3d
882, 897 (7th Cir. 2015) (“Appellate counsel is not required to present every non-frivolous claim
on behalf of h[is] client. … [A]ppellate counsel’s performance is deficient under Strickland only
if []he fails to argue an issue that is both ‘obvious’ and ‘clearly stronger’ than the issues actually
raised.”)
D.
Lack of Presence at Sentencing
Mr. Cochran objects to factual sentencing determinations that were apparently made
outside his presence. Dkt. 1 at 9, 23-25. Mr. Cochran asserts that the Court had discussions with
his counsel, Mr. Dazey, without his presence to discuss certain allegedly factual sentencing issues,
including the amount of loss and the role of the offense. Id. at 24. Mr. Cochran believes that these
“fact discussions” occurred during Durham’s sentencing. Id. at 25 (citing Crim. Dkt. 481 at 21,
43).
Mr. Cochran’s claim relates to an alleged violation of Rule 43 of the Federal Rules of
Criminal Procedures. Criminal defendants have a right to be present at sentencing. Rule 43(a)(3) of
the Rules of Criminal Procedure.
“The Fifth and Sixth Amendments also protect a criminal
defendant’s right to be present at all stages of the trial.” United States v. Martin, 777 F.3d 984, 990
(8th Cir. 2015) (internal quotation omitted). If a court conducts a proceeding in violation of a
defendant’s right to be present, such a violation is subject to harmless error analysis. Id. at 991. Rule
43(b)(3) provides that a defendant need not be present at a proceeding that “involves only a conference
or hearing on a question of law.” Id.
22
Like certain of Mr. Cochran’s other claims, this claim should have been brought on direct
appeal, and because he has failed to do so, the claim is procedurally defaulted. See Barker, 7 F.3d
at 632. Mr. Cochran is barred from raising these claims in his § 2255 proceeding because he has
failed to demonstrate cause and prejudice for the default. Frady, 456 U.S. at 167-68; McCleese,
75 F.3d at 1177. Although Mr. Cochran asserts that his appellate counsel was ineffective for
failing to raise this issue, see dkt. 1 at 21, he provides no argument or evidence in support of this
issue beyond this brief statement, and thus the argument is waived. See Holm, 326 F.3d at 877.
Mr. Cochran also fails to show that dismissal of the claims would result in a fundamental
miscarriage of justice. Murray, 477 U.S. at 495.
Even if Mr. Cochran could make the appropriate showing to avoid procedural default, his
argument fails. It appears that Mr. Cochran is alleging he was not present during the first two
hours of the sentencing hearing during which Mr. Dazey raised legal arguments about the
appropriate amount of loss attributable to Mr. Cochran and Mr. Cochran’s role in the offense. See,
e.g., Crim. Dkt. 481 at 21-23, 41-45, 72-73. The Court notes as an initial matter that Mr. Dazey
made no arguments during Durham’s sentencing. See id. at 104-138.
Due to the particular nature of the case, the sentencing hearing proceeded under a special
schedule in which the first two hours were reserved for parties to “present arguments on objections
to the Presentence Report,” Crim. Dkt. 423; Crim. Dkt. 481 at 4:21-25, a procedure generally done
primarily in written form. No decisions about sentencing were made during this portion of the
hearing. The Judge was merely listening to oral argument on previously submitted objections.
See, e.g., Crim. Dkt. 481 at 74:24-75:5 (“THE COURT: Thank you. Okay. Let’s take ten until
11:00, and then the Government can begin with its presentation. I need to mull some things that
were presented this morning that were beyond the papers.”) Moreover, Mr. Cochran was present
23
for, at least, some portion of this part of the hearing. See Crim. Dkt. 481 at 63:22-64:1 (“THE
COURT: … Same for you. Mr. Cochran, you had the chance to review the PSR, the objections
made by your counsel, and the memorandum submitted on your behalf?
DEFENDANT
COCHRAN: Yes.”). Later, during his portion of the sentencing, Mr. Cochran was present and had
the opportunity to address the judge personally and make any necessary objections. Crim. Dkt.
481 at 139-165.
The Seventh Circuit has previously rejected the suggestion that a defendant must be present
during oral arguments related to the presentencing report prior to sentencing where the sentencing
decisions were not made until after the actual sentencing proceedings in court and the defendant
was present on the day of sentencing itself:
Thomas was in court, and exercised his opportunity to address the judge personally,
on the day of sentencing, and the judge’s earlier opinion (step 5) specified that
nothing it contained was definitive.
…Rule 43(b)(3) says that a defendant’s presence is not required for the
consideration of legal issues. Judges regularly hear argument and rule on issues
such as the sufficiency of the indictment (Rule 12(b)(3)(B)) and contested matters
such as discovery (Rule 16) outside the defendant’s presence.
…
Criminal defendants are entitled under the Due Process Clause to be present when
that is essential to “a fair and just hearing”, United States v. Gagnon, 470 U.S. 522,
526 (1985), but representation by counsel suffices when presenting legal arguments
to a judge and discussing what issues require hearings.
United States v. Thomas, 815 F.3d 344, 346 (7th Cir. 2016). A review of the arguments made by
Mr. Cochran’s counsel during the first two hours of the sentencing hearing shows only legal
arguments, and thus, Mr. Cochran’s presence, even though he was present, was not required. Thus,
Mr. Cochran is mistaken regarding his alleged lack of presence at sentencing.
24
E.
Judicial Misconduct
Mr. Cochran apparently also believes that the Court had already made its decision as to
Mr. Cochran’s sentence before the start of the hearing based on an alleged conversation between
Mr. Cochran and Mr. Dazey in which Mr. Dazey told Mr. Cochran he would receive 25 years in
prison and he “just knew.” Id. at 25.
Dkt 2 at 8, ¶ 23. Such an allegation is essentially one of judicial misconduct where he alleges that
the Court had already made a decision prior to sentencing.
Mr. Cochran failed to raise a claim of judicial misconduct on appeal, and thus, has
procedurally defaulted these claims. See Barker, 7 F.3d at 632. Mr. Cochran is barred from raising
these claims in his § 2255 proceeding because he has failed to demonstrate cause and prejudice for
the default. Frady, 456 U.S. at 167-68; McCleese, 75 F.3d at 1177. Although Mr. Cochran asserts
that his appellate counsel was ineffective for failing to raise this issue, see dkt. 1 at 21, he provides
no argument or evidence in support of this issue beyond this brief statement, and thus the argument
is waived. See Holm, 326 F.3d at 877. Mr. Cochran also fails to show that dismissal of the claims
would result in a fundamental miscarriage of justice. Murray, 477 U.S. at 495. Even had Mr.
Cochran not defaulted this claim, habeas relief would still have been unavailable on this ground
because his claim is meritless. Mr. Cochran’s sole support for his allegation is an alleged
25
conversation with his attorney that could be construed as an informed opinion based on his
attorney’s years of experience representing criminal defendants in court. The record reflects no
discussion in which the Court previously decided on a sentence of 25 years prior to sentencing and
Mr. Cochran fails to identify any specific judicial misconduct. Indeed, Mr. Cochran’s counsel
argued for a sentence less than 23 years during the sentencing hearing, reflecting, at most, an
understanding before the hearing of not 25 but 23. Crim. Dkt. 481 at 148 (“But we do think a
sentence that exceeds 23 years, a sentence of life is one that should be given sparingly, and we
would ask the Court to fashion a sentence that does not do that here and to come down -- that a
line has to be drawn, and we would ask that the line be drawn somewhere on the other side of
that.”). Accordingly, habeas relief is not available on this ground.
F.
Propriety of Sentence Length
Mr. Cochran asserts that the length of sentence is improper in view of “changes in the law”
under United States v. Booker, 543 U.S. 220 (2005), and Ring v. Arizona, 536 U.S. 584 (2002).
Dkt. 1 at 9, 29-32. Mr. Cochran asserts that his sentence was “extremely out-of-line with similar
defendants convicted of the same offenses in the same dollar amount level” and disputes the loss
calculation. Id. at 31-32.
First, there is no intervening change in the law. Mr. Cochran was sentenced in 2012, well
after Booker and Ring were decided.
Second, Mr. Cochran already raised these issues on appeal, and thus these arguments are
foreclosed by the law of the case. See Fuller, 398 F.3d at 648 (“In the context of § 2255 petitions,
the law of the case doctrine dictates that once this court has decided the merits of a ground of
appeal, that decision establishes the law of the case and is binding on a [court] asked to decide the
same issue in a later phase of the same case, unless there is some good reason for reexamining it.)
26
(internal citations and quotations omitted). The Seventh Circuit previously explicitly rejected Mr.
Cochran’s assertion that his sentence was improperly long or that the loss calculation was
improperly determined. Durham, 766 F.3d at 685-88.
Even if Mr. Cochran’s argument was not foreclosed, as previously explained, a claim of
error in the court’s application of the Sentencing Guidelines is not cognizable in a § 2255 motion.
See Buggs, 153 F.3d at 443. Thus, habeas relief is not available to Mr. Cochran on this ground.
IV.
Denial of Hearing
An evidentiary hearing is “not required when ‘the files and records of the case conclusively
show that the prisoner is entitled to no relief.’” Lafuente v. United States, 617 F.3d 944, 946 (7th
Cir. 2010) (quoting 28 U.S.C. § 2255(b)). That is the case here. A hearing is not warranted under
these circumstances.
V.
Conclusion and Certificate of Appealability
For the reasons explained in this Entry, Mr. Cochran is not entitled to relief on his § 2255
motion. There was no ineffective assistance of counsel, no errors in the sentencing proceedings
or calculations, and no judicial misconduct. Accordingly, his motion for relief pursuant to § 2255
is denied and this action is dismissed with prejudice. Judgment consistent with this Entry shall
now issue and a copy of this Entry shall be docketed in No. 1:11-cr-00042-JMS-DML-2.
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 Mr. Cochran has failed to show
that reasonable jurists would find “it debatable whether the petition states a valid claim of the
denial of a constitutional right” and “debatable 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.
27
IT IS SO ORDERED.
Date: 5/16/2018
Distribution:
JAMES F. COCHRAN
09970-028
LEXINGTON - FMC
LEXINGTON FEDERAL MEDICAL CENTER
Inmate Mail/Parcels
P.O. BOX 14500
LEXINGTON, KY 40512
Winfield D. Ong
UNITED STATES ATTORNEY'S OFFICE
winfield.ong@usdoj.gov
28
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