UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JOHN CHARLES FORTNER., 

 

 Petitioner/Defendant, 

 v. 

UNITED STATES OF AMERICA, 

 Respondent/Plaintiff. 

Case No. 2:21-cv-1529 

 2:17-cr-243 

Judge MICHAEL H. WATSON 

Magistrate Judge Elizabeth A. Preston 

Deavers 

 

   

REPORT AND RECOMMENDATION

Petitioner/Defendant John Charles Fortner has filed a Motion to Vacate his sentence under 

28 U.S.C. § 2255 (ECF No. 64.) The Respondent/Plaintiff United States of America has filed a 

memorandum contra (ECF No. 72.) Fortner did not file a reply, and the time to do so has expired 

The case has been referred to the Undersigned pursuant to 28 U.S.C. § 636(b) and Columbus 

General Order 14-1 regarding assignments and references to Magistrate Judges. For the reasons 

set forth below, it is RECOMMENDED that Fortner’s Motion be DENIED. 

I. Factual Background and Procedural History 

On October 19, 2017, a federal grand jury indicted Fortner on one count of attempt to 

persuade, induce, or entice a minor into sexual activity (Count One) and one count of doing so 

while registered as a sex offender in Ohio (Count Two) (Indictment, ECF No. 13, PageID 22-23.) 

Fortner moved to dismiss Count Two (Motion, ECF No. 22); this motion was denied on March 

26, 2018 (Order, ECF No. 28.) Thereafter, Fortner and the United States entered into a plea 

agreement, in which, among other provisions, Fortner agreed to waive his appeal rights except as 

to: the denial of the motion to dismiss Count Two; ineffective assistance of counsel; prosecutorial 

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misconduct; and the sentence imposed, were it to exceed the statutory maximum (Plea Agreement, 

ECF No. 30, PageID 127.) On February 14, 2019, Fortner was sentenced to 120 months each as 

to Counts One and Two, to run consecutively (Judgment, ECF No. 51, PageID 186.) 

Fortner undertook a limited appeal as to the dismissal of Count Two; the United States 

Court of Appeals for the Sixth Circuit affirmed this Court on November 25, 2019. United States 

v. Fortner, 943 F.3d 1007 (6th Cir. 2019). The United States Supreme Court denied certiorari on 

March 30, 2020. Fortner v. United States, No. 19-7781, 140 S.Ct. 2586 (Mem.) (2020). 

On March 8, 2021 (Motion, ECF No. 63, PageID 270), Fortner filed a Motion for Extension 

of Time in which to File a § 2255 Petition. (Id. at PageID 269.) Therein, he argued that “[t]he 

extraordinary circumstances of COVID-19 and its subsequent lockdowns and resulting 

deprivations such as law library, training, copying[,] discussion, etc. . . . and my poor knowledge 

of the law has [sic] left me requiring more time.” (Id.) On March 26, 2021 (Motion, ECF No. 64-

1, PageID 290), Petitioner filed the instant Motion (ECF No. 64.) On April 6, 2021, the 

undersigned denied as moot the Motion for Extension of Time (Order, ECF No. 65.) 

II. Legal Standard 

28 U.S.C. § 2255 enables an individual incarcerated under a federal sentence to challenge 

that sentence. 

If the court finds that the judgment was rendered without jurisdiction, or that the 

sentence imposed was not authorized by law or otherwise open to collateral attack, 

or that there has been such a denial or infringement of the constitutional rights of 

the prisoner as to render the judgment vulnerable to collateral attack, the court shall 

vacate and set the judgment aside and shall discharge the prisoner or resentence 

him or grant a new trial or correct the sentence as may appear appropriate. 

28 U.S.C. § 2255(b). “This statute was intended to alleviate the burden of habeas corpus petitions 

filed by federal prisoners in the district of confinement, by providing an equally broad remedy in 

the more convenient jurisdiction of the sentencing court.” United States v. Addonzio, 442 U.S. 

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178, 185 (1979) (citation omitted). To prevail, a petitioner must show that the court of judgment 

lacked jurisdiction, there was a constitutional error, an error of law that “constituted a fundamental 

defect which inherently results in a complete miscarriage of justice[,]” or an error of fact “where 

the errors were of the most fundamental character, that is, such as rendered the proceeding itself 

irregular and invalid.” Id. at 185-86 (internal quotation marks and citations omitted). 

III. Analysis 

A. Fortner’s Claims are not Time-Barred 

28 U.S.C. § 2255(f) provides: 

(f) A 1-year period of limitation shall apply to a motion under this section. The 

limitation period shall run from the latest of— 

(1) the date on which the judgment of conviction becomes final; 

(2) the date on which the impediment to making a motion created by governmental 

action in violation of the Constitution or laws of the United States is removed, if 

the movant was prevented from making a motion by such governmental action; 

(3) the date on which the right asserted was initially recognized by the Supreme 

Court, if that right has been newly recognized by the Supreme Court and made 

retroactively applicable to cases on collateral review; or 

(4) the date on which the facts supporting the claim or claims presented could have 

been discovered through the exercise of due diligence. 

It is undisputed that Petitioner’s conviction became final on March 30, 2020, when the 

United States Supreme Court denied certiorari. Fortner, 140 S.Ct. 2586. Thus, the statute of 

limitations expired on March 30, 2021. The United States argues that Fortner’s claims are timebarred because he did not file the Motion until April 5, 2021, and did not demonstrate why 

equitable tolling should operate (Memo. in Opp., ECF No. 72, PageID 316-17.) Not so. While 

the Motion was docketed in this Court on April 5 (Motion, ECF No. 64), under the prison 

mailbox rule, a document is considered filed on the date it is deposited in the prison mail system. 

United States v. Smotherman, 838 F.3d 736, 737 (6th Cir. 2016) (quoting Houston v. Lack, 487 

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U.S. 266, 276 (1988)). Here, the Motion was deposited no later than March 26, 2021 (ECF No. 

64-1, PageID 290), within the statute of limitations period. Accordingly, Fortner’s Motion is 

timely and will be considered on its merits. 

B. Fortner’s Claims are Meritless 

1. Failure to seek dismissal due to outrageous government conduct 

Fortner claims that counsel was ineffective in failing to seek dismissal of the indictment 

because the government’s conduct in inducing Fortner into illegal activity was egregious and 

outrageous, in violation of his Due Process and Free Speech rights under the Fourteenth and First 

Amendments, respectively (Motion, ECF No. 64, PageID 274-75.) Fortner appears to be arguing 

entrapment, which is a defense, not a basis for dismissing an indictment. United States v. 

Loukas, No. 89-2033, 909 F.2d 1485 (TABLE), 1990 WL 99496, at *1-2 (6th Cir. Jul. 18, 1990), 

quoting Mathews v. United States, 485 U.S. 58, 63 (1988); United States v. Meyer, 803 F.2d 246, 

249 (6th Cir.1986). Given that it is highly unlikely that the trial court, on motion, would have 

dismissed the indictment based on entrapment, it was not ineffective assistance of counsel to fail 

to make such a motion. 

Further, as the United States points out, arguments that outrageous government conduct 

can excuse prosecution of otherwise predisposed individuals has been roundly rejected (Memo. 

in Opp., ECF No. 72, PageID 319-20, citing Aff., ECF No. 72-1; United States v. Russell 411 

U.S. 423, 430-32 (1973); United States v. Tucker, 28 F.3d 1420, 1424-25 (6th Cir. 1994).) 

“[T]he lower courts, including the Sixth Circuit, have generally been disinclined to vary from the 

entrapment rules laid out in Russell and apply a standard that focuses on the government’s 

conduct rather than a defendant’s predisposition.” (Id. at PageID 321, citing United States v. 

Harney, 934 F.3d 502, 506 (6th Cir. 2019); Monea v. United States, 914 F.3d 414, 419 (6th Cir. 

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2019); United States v. Warwick, 167 F.3d 965, 974 (6th Cir. 1999).) Here, Fortner contacted an 

undercover officer, sent a series of explicit messages, and confirmed his desire to engage in 

intercourse with the officer’s fictitious underage daughter (Plea Agreement, ECF No. 30, PageID 

130-31.) As the United States put it, this was the conduct of an unwary criminal, not an unwary 

innocent (Memo. in Opp., ECF No. 72, PageID 320, quoting Russell, 411 U.S. at 429), and 

failing to seek dismissal in such a circumstance was not ineffective assistance. Claim One 

should be denied. 

2. Failure to seek dismissal based on actual innocence 

Fortner argues that federal law requires an actual minor to be enticed, not an undercover 

agent posing as having a minor child (Motion, ECF No. 64, PageID 277.) He further claims that 

he was factually innocent because he never expressly sought sex from the fictitious thirteen year 

old; rather, he only sought a meeting with her, a request that was later retracted. (Id. at PageID 

277-78.) Fortner’s argument is unavailing. As the United States correctly notes, “the statute 

criminalizes an intentional attempt to achieve a mental state, the minor’s assent.” (Memo. in 

Opp., ECF No. 72, PageID 324-25, citing United States v. Roman, 795 F.3d 511, 516 (6th Cir. 

2015).) Here, Fortner sent numerous messages in the hopes of setting up a meeting and 

obtaining the fictitious minor’s assent (Plea Agreement, ECF No. 30, PageID 130-31.) It is 

undisputed that Fortner’s counsel understood the law and the facts of the case, and explained 

why Fortner could not obtain a dismissal based on innocence (Aff., ECF No. 72-1, PageID 334-

35, ¶¶ 8-9.) Thus, it was not ineffective assistance in failing to move to dismiss the indictment 

based on actual innocence, and Claim Two should be denied. 

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3. Unjust indictment 

Fortner claims that his indictment and sentencing constituted cruel and unusual 

punishment as a result of prosecutorial misconduct (Motion, ECF No. 64, PageID 280.) The 

United States correctly construes his unclear allegations as “claims that the government’s 

decision to charge him with the § 2260A offense involved both prosecutorial vindictiveness and 

cruel or unusual punishment.” (Memo. in Opp., ECF No. 72, PageID 327.) Specifically, Fortner 

appears to argue that the United States posting a phony Craigslist advertisement was a bad faith 

exercise that made his intent to ascertain his intent to entice a minor into sexual activity (Motion, 

ECF No. 64, PageID 280.) Moreover, Fortner claims that the decision to have his sentences run 

consecutively, rather than concurrently, was unjust, given that there was no actual minor 

involved. (Id.) 

Fortner fails to point out what misconduct occurred that could be classified as 

prosecutorial in nature. He has not alleged, for example, that the United States retaliated against 

him after Fortner exercised a protected statutory or constitutional right (Memo. in Opp., ECF No. 

72, PageID 327-28 (citations omitted).) Indeed, in his plea agreement, the United States not only 

allowed Fortner to reserve his right to appeal the denial of the dismissal of Count Two, but 

agreed to the statutory minimum sentence for Count Two and only 120 months for Count One, 

compared to 360 months to life under the Sentencing Guidelines and 240 months recommended 

in the Presentence Investigative Report. (Id. at PageID 329, citing Sentencing Memo., ECF No. 

45, PageID 157.) In light of this contrary evidence, Fortner has not met his burden of showing 

vindictive conduct by the United States, and his argument as to prosecutorial misconduct fails. 

Fortner’s argument that the sentence constituted cruel and unusual punishment has two 

procedural hurdles that he did not surmount. First, the argument was available but not raised on 

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direct appeal and is therefore waived. Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999). 

Second, in the Plea Agreement, Fortner agreed to waive almost all grounds for appeal, and length 

of sentence was not one of the exceptions because the sentences did not exceed the statutory 

maximums (ECF No. 30, Page ID 127.) Thus, it cannot be considered an independent ground for 

relief. Even liberally construing the claim, as the United States does, as one alleging ineffective 

assistance of appellate counsel in failing to raise the claim (Memo. in Opp., ECF No. 72, PageID 

330), does not save the claim because appellate counsel likely (and reasonably) believed that the 

plea agreement foreclosed Fortner from raising it. It is axiomatic that omitting a meritless 

argument from appeal is not ineffective assistance. Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 

2013). Thus, Claim Three must be denied. 

4. Failure to seek dismissal of indictment based on confrontation of 

witnesses 

While not a model of clarity, the undersigned construes Claim Four as claiming a Sixth 

Amendment violation because Fortner was unable to confront the “phantom child” and “actor 

intermediary” who, he argues, formed the basis of the charges against him (Motion, ECF No. 64, 

PageID 283.) Fortner misapprehends his Confrontation Clause protections, which extend only as 

to witnesses who offer testimony against him. Crawford v. Washington, 541 U.S. 36, 51 (2004). 

Here, the “phantom child” could not offer testimony, and by entering into a plea agreement, 

Fortner waived his right to trial and the chance to confront the “actor intermediary” or any other 

witness that might have offered testimony against him. Accordingly, it was not ineffective 

assistance for counsel not to raise a Confrontation Clause challenge, and Claim Four should be 

denied.1

1 As Fortner’s claims are without merit, the undersigned need not evaluate Fortner’s arguments 

regarding exhaustion of claims and the timeliness of his Motion (ECF No. 64, PageID 285-86.) 

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IV. Recommended Disposition 

For the foregoing reasons, it is recommended that Fortner’s Motion to Vacate be 

DENIED and the action DISMISSED WITH PREJUDICE. 

Procedure on Objections to Report and Recommendation

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A Judge of this Court shall make a de novo determination of those 

portions of the Report or specified proposed findings or recommendations to which objection is 

made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in 

part, the findings or recommendations made herein, may receive further evidence, or may 

recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the District Judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

Date: October 19, 2021 s/ Elizabeth A. Preston Deavers________ 

ELIZABETH A. PRESTON DEAVERS 

UNITED STATES MAGISTRATE JUDGE 

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