Pennington v. United States

• Docket Number: 3:23-CV-186 JD,3:21-CR-58 JD
• Decision Date: 11 September 2023
• Parties: JOSHUA N PENNINGTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Northern District of Indiana

1

JOSHUA N PENNINGTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

Nos. 3:23-CV-186 JD, 3:21-CR-58 JD

United States District Court, N.D. Indiana, South Bend Division

September 11, 2023

OPINION AND ORDER

JON E. DEGUILIO, JUDGE UNITED STATES DISTRICT COURT

Joshua Pennington pled guilty to one count of violation of 18 U.S.C. § 2422(b) in July 2021 and was thereafter sentenced by this Court. In his criminal proceeding, he was represented by attorney Brett Gibson. Mr. Pennington now alleges Mr. Gibson provided ineffective assistance of counsel. Mr. Pennington further argues the facts of conviction and asserts that the federal proceeding, in tandem with two state proceedings for similar but distinct conduct, constitutes a violation of his rights under the Double Jeopardy Clause. None of these arguments are supported by allegations of specific fact entitling him to relief. Therefore, the Court denies Mr. Pennington's § 2255 petition.

A. Factual Background

On July 21, 2021, Mr. Pennington pled guilty to one count of using a facility and means of interstate commerce to knowingly transport a minor to engage in a sexual activity for which a person could be charged with a criminal offense, in violation of 18 U.S.C. § 2422(b). Mr. Pennington was represented in his guilty plea by Mr. Brett Gibson. An information was filed on June 21, 2021; Mr. Pennington filed his plea agreement the same day. The plea agreement was

2

signed by Mr. Pennington and Mr. Gibson. The plea agreement waived Mr. Pennington's right to appeal or contest his conviction or sentence on all grounds except ineffective assistance of counsel. (DE 2-1 at 7.) On July 21, 2021, Mr. Pennington signed a consent to plea before U.S. Magistrate Judge Gotsch (DE 11) and pled guilty to Count One before Judge Gotsch (DE 8). He also filed a waiver of indictment. (DE 10.) On February 24, 2022, Mr. Pennington was sentenced to 136 months and ten years of supervised release. (DE 27.) Mr. Pennington was credited for 13 months' time served, and the resulting sentence of 123 months was imposed concurrently to his Indiana sexual misconduct sentence. (DE 28.) Mr. Pennington waived his right to appeal in his plea agreement (DE 2) and did not directly appeal his sentence. On March 2, 2023, he filed a motion to vacate under 28 U.S.C. 2255 (DE 30), and the Government responded (DE 41). Mr. Pennington also requested his attorney file. The Court granted his request and ordered counsel to produce the file. (DE 45.) In its order, the Court granted Mr. Pennington leave to amend his petition based on evidence discovered in the file by August 18, 2023, and cautioned him that failure to amend would result in the Court deciding the original petition without further notice. Counsel and Mr. Pennington indicate he received the file (DE 46; DE 47), but Mr. Pennington has not amended his petition, and the time to do so has passed.

Relevant to this appeal, Mr. Pennington had a history of state prosecutions at the time of sentencing. Mr. Pennington was first arrested for sex crimes against a minor on January 5, 2019: that arrest ultimately ripened into convictions in Indiana state court and this federal court. In the interim between the January 2019 arrest and his federal conviction, Mr. Pennington was charged, pled guilty, and completed a state sentence in Kentucky. Mr. Pennington was arrested in Kentucky on February 14, 2019, for use of an electronic communications systems to induce a minor to commit a sexual offense. See Kenton Circuit Court First Division, Case No. 19-CR-513.

3

He pled guilty, and on January 7, 2020, he was sentenced to two years prison. On February 20, 2021, he completed his Kentucky sentence and was transported from Kentucky to Indiana to face charges in Indiana. On June 3, 2021, Mr. Pennington was sentenced to fourteen years in Indiana state court for one count of sexual misconduct with a minor twelve years of age and possession of child pornography; this conviction arose from the original January 2019 arrest. See Tippecanoe Superior Court, Case No. 79D01-1901-F1-000001. He was serving his Indiana sentence at the time of his federal sentencing, and his earliest possible release date in his Indiana state case is February 5, 2031. (DE 5.)

The underlying offense in Mr. Pennington's § 2422(b) conviction was a violation of Indiana Code § 35-42-4-9(a)(1), which criminalizes sexual conduct by an adult with a minor less than 16 years of age. On January 5, 2019, a Lafayette Police Officer approached a suspicious parked car behind a church in Lafayette, Indiana. The occupants, Mr. Pennington, then 26, and Jane Doe, 13, were naked from the waist down. Later interviews of Ms. Doe revealed Mr. Pennington met Ms. Doe on an online dating app, where he represented to be a 13-year-old boy. Mr. Pennington had traveled from his home in Ohio on several prior occasions to visit Ms. Doe and had previously engaged in sexual conduct with her, though they had not previously had sexual intercourse. On the morning of January 5, Mr. Pennington and Ms. Doe were engaged in sexual intercourse when Ms. Doe told him that it hurt and to stop, but he said it would be okay. Their intercourse was interrupted by the police officer. Mr. Pennington also met and had sexual contact with two other preteen girls, a 13-year-old in Minnesota and a 12-year-old in Kentucky, who he also met on dating and texting apps. Officers believed Mr. Pennington used his work as a traveling salesman as a vehicle to connect with and engage in prohibited sexual conduct with

4

various minors, noting his phone contained thousands of sexual pictures, many of which appeared to be child pornography and many contacts that appeared to belong to young girls.

B. Legal Standards

(a) Section 2255

Section 2255(a) of Title 28 provides that a federal prisoner may claim “the right to be released 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, [and] may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).

The Seventh Circuit has recognized that § 2255 relief is appropriate only for “an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (citation omitted). Further, “a Section 2255 motion is neither a recapitulation of nor a substitute for a direct appeal.” Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995) (citation omitted). Relief under § 2255 is extraordinary because it seeks to reopen the criminal process to a person who has already had an opportunity of full process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo, 467 F.3d at 1068). A court may also deny a § 2255 motion without an evidentiary hearing if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).

(b) Ineffective Assistance of Counsel

5

The Sixth Amendment provides a criminal defendant with the right to counsel, U.S. Const. amend. VI, and “inherent in this right is that the defendant is entitled to the effective assistance of counsel.” United States v. Recendiz, 557 F.3d 511, 531 (7th Cir. 2009). In order to prevail on his claim for ineffective assistance of counsel, a person must establish (1) that his counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). The first prong of the Strickland analysis requires that the Court determine if counsel acted “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. “The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.” Koons, 639 F.3d at 351 (citing Sussman v. Jenkins, 636 F.3d 329, 349 (7th Cir. 2011)). Furthermore, the Court “maintain[s] a strong presumption that the defendant received effective assistance,” Hardamon v. United States, 319 F.3d 943, 948 (7th Cir. 2003), and that the challenged conduct “might be considered a sound trial strategy.” Strickland, 466 U.S. at 689 (citation and quotation omitted).

C. Evidentiary Hearing

Mr. Pennington has requested an evidentiary hearing. (DE 30 at 25.) As there are no material facts in dispute in this case and Mr. Pennington is entitled to no relief as a matter of law, no evidentiary hearing is required. A court must hold a hearing on a § 2255 petition only if there are disputed facts set forth by affidavits and a disputed material issue. Taylor v. United States, 287 F.3d 658 (7th Cir. 2002). If the factual dispute is immaterial because the governing law is clear, no hearing is necessary. Id. Further, the court in which a prisoner files his § 2255 petition

6

is not required to hold an evidentiary hearing if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief ...” Sawyer v. United States, 874 F.3d 276, 278 (7th Cir. 2017) (quoting 28 U.S.C. § 2255(b)). As discussed below, Mr. Pennington is entitled to no relief here, and therefore no evidentiary hearing need be held.

D. Discussion

Mr. Pennington argues his conviction constitutes double jeopardy, he received ineffective assistance of counsel, and he did not commit the crime as reported in his PSR at sentencing. The Court addresses and rejects each of his contentions in turn, finding they are unsupported and contrary...