UNITED STATES DISTRICT COURT 

 NORTHERN DISTRICT OF INDIANA 

 SOUTH BEND DIVISION 

TIMOTHY RYAN, ) 

 ) 

Petitioner ) 

 ) 

vs. ) CAUSE NO. 3:15-CR-62 RLM-MGG 

 ) 

UNITED STATES OF AMERICA, ) 

 ) 

Respondent ) 

OPINION AND ORDER 

 A jury found Timothy Ryan guilty of distributing child pornography, 18 

U.S.C. §§ 2252(a)(2), receiving child pornography, 18 U.S.C. §§ 2252(a)(2), and 

possessing child pornography, 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2). He was 

sentenced to 157 months’ imprisonment, about 25 percent below the Sentencing 

Guidelines’ recommended term, and 5 years’ supervised release. Mr. Ryan’s trial 

counsel, Bryan Truitt, filed a notice of appeal and a motion to substitute counsel, 

which the court of appeals granted. The court of appeals considered three issues 

on review: (1) whether the court properly denied Mr. Ryan’s motion to substitute 

counsel on the eve of trial; (2) whether the government sufficiently proved that 

Mr. Ryan “knowingly” distributed child pornography and whether the sentencing 

enhancement for distribution of child pornography was properly applied; and (3) 

whether Mr. Ryan’s computer was properly forfeited. United States v. Ryan, 885 

F.3d 449, 452 (7th Cir. 2018). The court of appeals found that this court’s denial 

of Mr. Ryan’s motion to substitute counsel was not an abuse of discretion, the 

government sufficiently proved that Mr. Ryan knowingly distributed child 

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pornography, and this court committed harmless error when it didn’t determine 

whether any party had requested the jury to determine the forfeiture claim. Mr. 

Ryan’s petition for rehearing and rehearing en banc were both denied, and the 

Supreme Court denied his petition for certiorari. Ryan v. United States, 139 S. 

Ct. 127 (2018). 

 Mr. Ryan now asks this court to vacate, set aside, or correct his conviction 

and sentence under 28 U.S.C. § 2255. A prisoner may bring a motion under 

Section 2255 alleging that his sentence was imposed unconstitutionally, the 

court didn’t have jurisdiction to impose the sentence, the sentence exceeded the 

maximum authorized by law, or it’s otherwise subject to collateral attack. The 

rules governing petitions filed under 28 U.S.C. § 2255 provide that once a motion 

is filed: 

The motion, together with all the files, records, transcripts, and 

correspondence relating to the judgment under attack, shall be 

examined promptly by the judge to whom it is assigned. If it plainly 

appears from the face of the motion and any annexed exhibits and 

the prior proceedings in the case that the movant is not entitled to 

relief in the district court, the judge shall make an order for its 

summary dismissal and cause the movant to be notified. 

Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States 

District Courts. The court has discretion to rule without an evidentiary hearing 

when the motion, files, and records of the case conclusively show that the 

prisoner is not entitled to relief. Cooper v. United States, 378 F.3d 638, 642 (7th 

Cir. 2004) (citing United States v. Kovic, 830 F.2d 680 (7th Cir. 1987)). A hearing 

isn’t necessary if the petitioner’s allegations are “‘vague, conclusory, or palpably 

incredible,’ rather than ‘detailed and specific.’” Martin v. United States, 789 F.3d 

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703, 706 (7th Cir. 2015) (quoting Kafo v. United States, 467 F.3d 1063, 1067 (7th 

Cir. 2006)). The allegations contained in a verified motion to vacate, signed under 

penalty of perjury, become evidence and “permit the district court to evaluate 

properly the movant’s allegations and to determine whether a sufficient 

threshold showing has been made to warrant further proceedings.” Kafo v. 

United States, 467 F.3d at 1068. 

 The court has reviewed Mr. Ryan’s motion and supporting memorandum1 

and finds that his arguments aren’t supported by the facts or the law in this case 

and can be resolved without a hearing. See Martin v. United States, 789 F.3d 

703, 706 (7th Cir. 2015) (evidentiary hearing not required if “the motion and the 

files and records of the case conclusively show that the prisoner is entitled to no 

relief” or petitioner’s allegations are “vague, conclusory, or palpably incredible”); 

Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006); Bruce v. United 

States, 256 F.3d 592, 597 (7th Cir. 2001). Appointment of counsel isn’t required 

under Rule 8(c) of the Rules Governing Section 2255 Proceedings or warranted 

in the interest of justice under 18 U.S.C. § 3006A(a)(2)(B). See Rauter v. United 

States, 871 F.2d 693, 695-696 (7th Cir. 1989). 

 Mr. Ryan presents eight grounds for his 28 U.S.C. § 2255 motion to vacate. 

The court addresses them in the order he raised them. 

1 The court didn’t review the memorandum Mr. Ryan attached in support of his reply 

brief [Doc. No. 171-1] because his reply brief was 29 pages, and the additional 26-page 

supporting memorandum would put him well over the page limit in Local Rule 7-1(e). 

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Ground 1: Ineffective Assistance of Counsel 

 Mr. Ryan’s first ground for relief is that his trial counsel provided 

ineffective assistance. “[A]n ineffective assistance of counsel claim may be 

brought in a collateral proceeding under § 2255, whether or not the petitioner 

could have raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 

500, 504 (2003). To prevail on an ineffective assistance of counsel claim, Mr. 

Ryan must show both that his attorney’s performance “fell below an objective 

standard of reasonableness” and that there is a reasonable probability that, but 

for his attorney’s errors, the result of the proceeding would have been different. 

Strickland v. Washington, 466 U.S. 668, 688-693 (1984). This is a difficult 

standard to meet. Mr. Ryan must show both “that counsel made errors so serious 

that ‘counsel’ was not functioning as the counsel guaranteed the defendant by 

the Sixth Amendment” and “that counsel’s errors were so serious as to deprive 

[Mr. Ryan] of a fair [result].” Strickland v. Washington, 466 U.S. at 687. The 

court can address the Strickland prongs in the order it sees fit, because an 

insufficient showing as to either of the prongs is fatal to a claim. Strickland v. 

Washington, 466 U.S. at 697; McDaniel v. Polley, 847 F.3d 887, 893 (7th Cir. 

2017). 

With regard to the performance prong of the Strickland inquiry, there is a 

strong presumption that counsel performed effectively. See Berkey v. United 

States, 318 F.3d 768, 772 (7th Cir. 2003). “A court’s scrutiny of an attorney’s 

performance is ‘highly deferential’ to eliminate as much as possible the distorting 

effects of hindsight, and we ‘must indulge a strong presumption that counsel’s 

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conduct falls within the wide range of reasonable professional assistance.’”

Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015) (quoting Strickland 

v. Washington, 466 U.S. at 687). Because reviewing courts shouldn’t secondguess counsel’s strategic choices, the burden of showing that counsel’s decisions 

fell outside the wide range of reasonable strategic choices “rests squarely on the 

defendant.” Burt v. Titlow, 571 U.S. 12, 22-23 (2013). 

If counsel’s performance was deficient, the petitioner must still “show that 

‘there is a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different,’ meaning ‘a probability 

sufficient to undermine confidence in the outcome.’” Eckstein v. Kingston, 460 

F.3d 844, 848 (7th Cir. 2006) (quoting Strickland v. Washington, 466 U.S. at 

694). 

Mr. Ryan raises about 40 issues under his ineffective assistance of counsel 

claim. Where possible, the court addresses related claims together. For the 

following reasons, Mr. Ryan hasn’t met the Strickland standard on any of the 

issue he raises. 

 

 Witnesses. Mr. Ryan argues Mr. Truitt should have called additional 

witnesses, including Sonya Burnside, Ms. Burnside’s daughters, and a witness 

named “Jeff”. He also says Mr. Truitt should’ve called unnamed alibi and 

eyewitnesses. Finally, he alleges that Mr. Truitt didn’t cross-examine the 

government’s witnesses effectively. 

 “When a petitioner alleges that counsel’s failure to investigate resulted in 

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ineffective assistance, the petitioner has the burden of providing the court with 

specific information as to what the investigation would have produced.” United 

States v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011). An attorney must make “a 

reasonable investigation of the principal facts of the defendant’s case” or “a 

reasonable decision that particular investigations are unnecessary.” Rutledge v. 

United States, 230 F.3d 1041, 1050 (7th Cir. 2000) (citing Strickland v. 

Washington, 466 U.S. at 691). But he “need not investigate every evidentiary 

possibility before choosing a defense[.]” Id. “‘Trial tactics are a matter of 

professional judgment’... it is not our task to second-guess counsel’s judgment 

and replace it with our own.” United States v. Lathrop, 634 F.3d 931, 937 (7th 

Cir. 2011) (quoting United States v. Malone, 484 F.3d 916, 920 & n. 1 (7th Cir. 

2007)). If counsel articulates a strategic reason for a decision that was sound at 

the time, that decision generally can’t be grounds for an ineffective assistance of 

counsel claim. Id. An attorney needn’t present every witness the defendant 

suggests to him. United States v. Balzano, 916 F.2d 1273, 1294 (7th Cir. 1990). 

“Where a petitioner claims his trial counsel failed to call a witness, he must make 

a specific, affirmative showing as to what the missing evidence would have been 

and prove that this witness’s testimony would have produced a different result.” 

Patel v. United States, 19 F.3d 1231, 1237 (7th Cir. 1994). 

 The record shows that Mr. Truitt interviewed or tried to interview all of the 

witnesses Mr. Ryan asked him to. On appeal, the circuit court found: “Counsel 

had contacted all the witnesses Ryan thought would be helpful, employed the 

assistance of the FBI to try to track down Ryan’s cousin [Ms. Burnside], and 

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hired an expert to investigate the computer programs involved.” United States v. 

Ryan, 885 F.3d 449, 452 (7th Cir. 2018). Mr. Truitt says in an affidavit that he 

interviewed Ms. Burnside’s daughters but didn’t think the two minors’ testimony 

would be admissible or help Mr. Ryan’s case. He thought the jury might penalize 

the defense for calling children as witnesses. Mr. Truitt articulated a sound, 

strategic reason for not calling Ms. Burnside’s daughters as witnesses, which the 

court won’t second guess. United States v. Lathrop, 634 F.3d at 937. 

 Mr. Ryan hasn’t shown that Mr. Truitt’s efforts to get Ms. Burnside’s 

testimony, including seeking the FBI’s assistance in finding her, fell below an 

objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 687-

688. 

 Mr. Ryan’s allegations that Mr. Truitt should have called more alibi and 

eyewitnesses are vague and conclusory and therefore don’t warrant relief. Martin 

v. United States, 789 F.3d at 703. He doesn’t identify the witnesses. He alleges 

that the eyewitnesses would have testified Ms. Burnside and her husband 

engaged in criminal activity, but he hasn’t shown that testimony about those 

alleged misdeeds would have produced a different result at trial. Patel v. United 

States, 19 F.3d at 1237. 

 Mr. Ryan also argues there was a “[l]ack of cross-examination and/or 

meaningful cross examination” in his case. Mr. Truitt cross-examined all of the 

government’s witnesses. Mr. Ryan doesn’t explain how Mr. Truitt’s crossexamination was deficient or how different cross-examination would’ve changed 

the outcome of trial, so this claim isn’t grounds for relief. Strickland v. 

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Washington, 466 U.S. at 694; United States v. Rodriguez, 53 F.3d 1439, 1449 

(7th Cir. 1995). 

 

Development of Evidence. Several of Mr. Ryan’s allegations relate to 

evidence he says Mr. Truitt should have obtained or developed further. Mr. Ryan 

says a psychological evaluation should’ve been performed; Mr. Truitt should 

have obtained his job records; and evidence about Ms. Burnside’s and others’ 

alleged crimes and misdeeds should have been introduced. 

 Mr. Ryan says, “No Psychological Evaluation Expert Employed – Child 

Sexual Attraction Markers not present and would have been defensively noted 

for trial, but was not.” He doesn’t explain his claim further, and he hasn’t shown 

that there’s a reasonable probability that a psychological evaluation – the results 

of which seem to be pure speculation on Mr. Ryan’s part – would have changed 

the outcome of trial, so it isn’t grounds for relief. Strickland v. Washington, 466 

U.S. at 694. 

 Mr. Ryan also argues that Mr. Truitt “refused” to access job records to 

demonstrate a potential alibi. The record shows that Mr. Truitt and Mr. Ryan 

both tried to obtain Mr. Ryan’s job records. Mr. Truitt said during trial that he 

and Mr. Ryan didn’t get the records in part because Mr. Truitt didn’t issue a 

subpoena for them. But the government obtained the records, put them into 

evidence, and shared them with Mr. Truitt and Mr. Ryan, so any error Mr. Truitt 

made by failing to subpoena Mr. Ryan’s work records didn’t change the trial’s 

outcome. Id. 

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 Next, Mr. Ryan says Mr. Truitt should have presented more evidence of 

the alleged crimes and misdeeds of Ms. Burnside, her husband, and Mr. 

Anderson, including police reports about their conduct. He argues, though at 

times indirectly, that if Mr. Truitt had presented evidence of the alleged crimes 

of Ms. Burnside, her husband, and the friends or boyfriends she brought to Mr. 

Ryan’s apartment, the jury would have seen that they, not he, were the ones who 

were interested in and illegally possessed child pornography. 

 The jury heard testimony about Ms. Burnside’s access to Mr. Ryan’s 

apartment, her husband and other associates, and activities she engaged in with 

some of them, including drug use. The jury also heard testimony that Mr. Ryan’s 

computer was always logged on in his apartment. Mr. Ryan’s hasn’t persuaded 

the court that if Mr. Truitt had introduced police reports and other records about 

Ms. Burnside and the people she allegedly brought to Mr. Ryan’s apartment, 

there’s a reasonable probability that outcome of the trial would’ve been different. 

Strickland v. Washington, 466 U.S. at 694 (“A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.”). 

 Finally, Mr. Ryan alleges generally that counsel’s discovery motion was 

“incomplete or absent” and would have revealed information beneficial to his 

case had it been properly filed. He doesn’t say what that information is or how it 

creates a reasonable probability that the outcome of his case would’ve been 

different, so it’s not a basis for relief. Id. 

 Attorney-Client Meetings and Trial Preparation. Mr. Ryan says Mr. 

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Truitt had too large of a workload; didn’t communicate with him about his 

defense strategy; forgot to inform Mr. Ryan of a moved court date; and sought 

continuances that didn’t effectively “further a defense for Petitioner.” 

 Mr. Ryan alleges that Mr. Truitt had “prejudice toward Petitioner due to 

Truitt’s claimed workload” and complains that Mr. Truitt didn’t communicate 

with him thoroughly about his defense strategy. He cites nothing to support his 

claims; he doesn’t explain how Mr. Truitt’s conduct in preparation for trial fell 

below an objectively reasonable standard. Mr. Truitt says in his affidavit that he 

met with Mr. Ryan multiple times to prepare for trial, and the two discussed all 

the strategies Mr. Truitt had identified for Mr. Ryan’s defense. Mere allegations, 

without supporting evidence, can’t overcome the strong presumption that 

counsel provided sufficient legal assistance. Strickland v. Washington, 466 U.S. 

at 689; Richardson v. United States, 379 F.3d 485, 488 (7th Cir. 2004). 

 Mr. Ryan also complains that Mr. Truitt sought continuances and forgot 

to tell him about a moved court date. Mr. Truitt moved to continue trial twice, 

and he didn’t object when the government requested a third continuance. The 

first time Mr. Truitt asked to continue the trial, he said he needed time to review 

computer evidence and work records of Mr. Ryan’s that the government had 

produced. The second continuance was granted when Mr. Truitt told the court 

he had identified a potential exculpatory witness in the week and a half prior. 

The government sought a motion to continue trial a third time because plea 

negotiations were ongoing, and the parties were attempting to schedule a 

polygraph examination for Mr. Ryan. All three continuances were requested to 

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develop evidence that Mr. Ryan says in his motion to vacate is in his favor. Mr. 

Ryan hasn’t shown that when Mr. Truitt’s conduct scheduling or rescheduling 

court dates fell below an objective standard of reasonableness and deprived Mr. 

Ryan of a fair result. Strickland v. Washington, 466 U.S. at 687. Bare allegations 

aren’t enough to overcome the presumption that counsel provided sufficient 

assistance. Richardson v. United States, 379 F.3d at 488. 

 Interstate Commerce Stipulation. Mr. Ryan argues that counsel erred 

by inducing him to stipulate before trial that the Internet is a means of interstate 

commerce. It’s well-settled in this circuit that “[t]he Internet is a facility of 

interstate commerce.” United States v. Chaparro, 956 F.3d 462, 470 (7th Cir. 

2020). Mr. Truitt acted reasonably by advising Mr. Ryan to stipulate to that fact. 

Washington v. Boughton, 884 F.3d 692, 701 (7th Cir. 2018) (“[A]n attorney is 

not ineffective for failing to raise a meritless argument.”). 

 Pre-Sentence Report. Mr. Ryan argues that he didn’t receive the presentence investigation report in a timely fashion, and that he didn’t get to raise 

objections to it. First, he says that Mr. Truitt didn’t share or review the PSR with 

him 35 days before sentencing in violation of Federal Rule of Criminal Procedure 

32(e). That rule says that the probation officer, not defense counsel, must give 

the defendant a copy of the PSR 35 days before the sentencing hearing, so 

violation of Rule 32(e) isn’t a basis for finding that counsel was ineffective. 

 Next, Mr. Ryan says that Mr. Truitt “failed to allow arguments over preUSDC IN/ND case 3:15-cr-00062-RLM-MGG document 177 filed 01/05/21 page 11 of 21
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sentence investigation reports (PSI) enhancements.” But he doesn’t say what 

enhancements should’ve been contested or arguments Mr. Truitt should have 

raised in his defense, and he doesn’t explain how, but for Mr. Truitt’s error, there 

is a reasonable probability the outcome of sentencing would’ve been different. 

Strickland v. Washington, 466 U.S. at 694. 

 Counsel Bias. Mr. Ryan alleges that his counsel had an “aversion” to the 

types of charges brought against him and made disrespectful comments to him. 

Nothing in the record indicates that Mr. Truitt has an aversion to child 

pornography offenses or that he was unable to advocate for Mr. Ryan’s interests 

in the face of such charges. Mr. Truitt says he and Mr. Ryan had a heated 

discussion about defense strategies on the eve of trial, but a disagreement about 

trial strategy doesn’t show that Mr. Truitt was biased against Mr. Ryan. Mr. Ryan 

says that Mr. Truitt was unprofessional and brought a family member to one of 

Mr. Ryan’s polygraph examinations. But he doesn’t say how the family member’s 

presence at the polygraph appointment affected Mr. Truitt’s ability to counsel 

him. Mr. Ryan’s bare allegations about bias and professionalism, without more, 

are insufficient to overcome the presumption that counsel provided effective 

assistance. Strickland v. Washington, 466 U.S. at 689; Richardson v. United 

States, 379 F.3d at 488. 

 Polygraph Test. Mr. Ryan also alleges that if Mr. Truitt had “sanctioned” 

a polygraph test, the results of that test would have exonerated him. The record 

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shows that Mr. Truitt made a reasonable effort to obtain a polygraph 

examination. Mr. Truitt says in his affidavit that he and the government 

scheduled an examination for Mr. Ryan twice as part of a possible plea 

agreement. Mr. Truitt had car trouble while driving to the first test, so it was 

rescheduled. Mr. Ryan and Mr. Truitt made it to the second test, but Mr. Ryan 

said he couldn’t participate because he was sick. Mr. Ryan hasn’t shown that 

Mr. Truitt made any error as to “sanctioning” polygraph evidence or arranging a 

polygraph exam, so this claim isn’t grounds for relief. Strickland v. Washington, 

466 U.S. at 687.

 Attempt to Terminate Relationship with Counsel. Mr. Ryan also argues 

that Mr. Truitt made misrepresentations to the court when he brought Mr. 

Ryan’s motion for new counsel. Mr. Ryan already raised the issue of his motion 

to substitute counsel on direct appeal, and the circuit court concluded that this 

court’s denial of that motion was not grounds to reverse Mr. Ryan’s conviction.

United States v. Ryan, 885 F.3d 449, 453 (7th Cir. 2018). “Issues that were 

raised on direct appeal may not be reconsidered on a § 2255 motion absent 

changed circumstances.” Varela v. United States, 481 F.3d 932, 936 (7th Cir. 

2007). “[A]n initial federal determination controls in subsequent rounds of review 

if ‘(1) the same ground presented in the subsequent application was determined 

adversely to the applicant on the prior application, (2) the prior determination 

was on the merits, and (3) the ends of justice would not be served by reaching 

the merits of the subsequent application.’” Peoples v. United States , 403 F.3d 

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844, 847 (7th Cir. 2005) (quoting Sanders v. United States, 373 U.S. 1, 15 

(1963)). Mr. Ryan doesn’t show that circumstances have changed such that the 

court should further review the circuit court’s decision, nor does he establish 

that the court should revisit the decision to serve the ends of justice, so he can’t 

obtain relief on this claim. 

 Other Issues. In a paragraph titled “Counsel’s Wholesale Abandonment of 

Defendant,” Mr. Ryan produces a laundry list of evidence he believes counsel 

failed to present at trial and defenses he believes counsel failed to raise. Much of 

the paragraph repeats allegations Mr. Ryan made in other parts of his ineffective 

assistance of claim. Others are conclusory, unsupported assertions that counsel: 

(1) failed to address evidence related to IP address information and software on 

Mr. Ryan’s computer; (2) didn’t contest inflammatory “and/or misrepresented 

phraseology;” (3) didn’t know or remember witnesses; (4) didn’t present a 

meaningful defense; and (5) failed to address “the prosecution’s lies and 

misdirection.” These allegations are vague and conclusory, so a hearing on them 

isn’t necessary. Martin v. United States, 789 F.3d at 706. 

 Mr. Ryan also alleges that there wasn’t any “adversarial pursuit of the 

Fourth Amendment’s protection of privacy can not be invalidated simply because 

a person’s right to want to be private evidences unlawful activity because the 

person does not want to be monitored 24/7 (also the expectation of privacy in 

one’s home).” The court can’t tell from Mr. Ryan’s allegation what Fourth 

Amendment issue he believes counsel should’ve raised or how it would’ve 

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changed the outcome of trial, so this claim isn’t grounds for relief. 

 Finally, Mr. Ryan complains that Mr. Truitt shouldn’t have subpoenaed 

Yolanda Campbell, whose testimony undermined his defense. He doesn’t explain 

how Ms. Campbell’s testimony undermined his defense or how the outcome of 

trial would’ve changed if she hadn’t testified, so this claim isn’t grounds for relief, 

either. Strickland v. Washington, 466 U.S. at 694. 

Ground Two: Conflict of Interest 

Mr. Ryan argues that counsel had a “foundational conflict of interest” as 

an officer of the court. Specifically, he contends that “when Counsel’s first duty 

is to the Court,” there is a presumptive conflict of interest. 

 “The Sixth Amendment right to effective assistance of counsel 

encompasses ‘a correlative right to representation that is free from conflicts of 

interest.’” Blake v. United States, 723 F.3d 870, 880 (7th Cir. 2013) (quoting

Wood v. Georgia, 450 U.S. 261, 271 (1981)). There are two frameworks to analyze 

a conflict of interest claim in a collateral proceeding. The court applies the 

standard from Cuyler v. Sullivan, 446 U.S. 335 (1980), “if the defense counsel 

was faced with a choice between advancing his own interests above those of his 

client.” Blake v. United States, 723 F.3d 870, 880 (7th Cir. 2013) (quoting Hall v. 

United States, 371 F.3d 969, 973 (7th Cir. 2004)). If counsel didn’t have an 

“actual” conflict of interest, the court applies the standard from Strickland v. 

Washington. 

 Mr. Ryan hasn’t shown under the Cuyler standard “that there is a 

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reasonable likelihood that his counsel’s performance would have been different 

had there been no conflict of interest.” Id. (citing Hall v. United States, 371 F.3d 

at 974). Mr. Truitt’s duties as an officer of the court are the same regardless of 

whether he represents Timothy Ryan or anyone else, so they aren’t grounds for 

a finding of “actual” conflict of interest. He hasn’t shown under the Strickland 

standard that Mr. Truitt’s representation fell below an objectively reasonable 

standard of care as a result of his status as an officer of the court. 466 U.S. at 

687. By Mr. Ryan’s logic, every attorney has a conflict of interest when 

representing his client by virtue of his duties as a member of the bar. Such duties 

aren’t grounds to vacate, set aside, or correct a conviction and sentence. 

Ground Three: Receipt and Possession Charges 

 Mr. Ryan next argues that his charges for both receipt and possession of 

child pornography are impermissibly duplicitous, because “to receive Child 

Pornography is to possess Child Pornography.” The government interprets Mr. 

Ryan’s claim as an argument that the indictment suffered from a defect of 

duplicity or, in the alternative, multiplicity. 

 Mr. Ryan’s argument comes too late. He should have raised a claim that 

the indictment was defective because of duplicity or multiplicity before trial. Fed. 

R. Crim. P. 12(b)(3)(B)(i)-(ii); United States v. Grayson Enterprises, Inc., 950 F.3d 

386, 403 (7th Cir. 2020); United States v. Nixon, 901 F.3d 918, 921 (7th Cir. 

2018). “Any claim that could have been raised originally in the trial court and 

then on direct appeal that is raised for the first time on collateral review is 

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procedurally defaulted.” Delatorre v. United States, 847 F.3d 837, 843 (7th Cir. 

2017) (citing Hale v. United States, 710 F.3d 711, 713-714 (7th Cir. 2013)). The 

court doesn’t consider a procedurally defaulted claim on collateral review unless 

the petitioner shows either actual innocence or cause and prejudice. Massaro v. 

United States, 538 U.S. 500, 504 (2003); Delatorre v. United States, 847 F.3d at 

843 (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). 

 Mr. Ryan alleges actual innocence in a different part of his petition as an 

independent ground for relief. “The actual innocence gateway exception is 

‘grounded in the “equitable discretion” of habeas courts to see that federal 

constitutional errors do not result in the incarceration of innocent persons.’” 

Lund v. United States, 913 F.3d 665, 667 (7th Cir. 2019) (citing Herrera v. 

Collins, 506 U.S. 390, 404 (1993)). To establish actual innocence, Mr. Ryan must 

show that it’s more likely than not that no reasonable juror would have found 

him guilty beyond a reasonable doubt. Id. Mr. Ryan claims that there is evidence 

that, if presented at trial, would have exonerated him. But to successfully 

support a claim of actual innocence, a petitioner must present “new reliable 

evidence... that was not presented at trial.” House v. Bell, 547 U.S. 518, 537 

(2006) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). Mr. Ryan cites the 

testimony of Ms. Burnside and her daughters, as well as “three eyewitnesses” as 

evidence of his innocence. Ms. Burnside and her daughters’ testimony isn’t new, 

as the court has already discussed, and an allegation that three unnamed 

eyewitnesses exist isn’t enough to establish that new reliable evidence of Mr. 

Ryan’s innocence exists. Accordingly, actual innocence is not a basis for 

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reviewing Mr. Ryan’s procedurally defaulted claim. 

 Mr. Ryan says he didn’t challenge his indictment before trial or on appeal 

because of lack of knowledge and ineffective assistance of counsel. Mr. Ryan had 

actual knowledge of the indictment and charges against him before trial. 

Delatorre v. United States, 847 F.3d at 843-844. Further, he hasn’t established 

that Mr. Truitt’s assistance was ineffective, nor has he alleged anything to 

support his claim that his appellate counsel’s assistance was ineffective. 

Strickland v. Washington, 466 U.S. 668, 688-693. Accordingly, he hasn’t 

established cause, and the court won’t consider his procedurally defaulted claim. 

Ground Four: Application of the Interstate Commerce Clause 

 Mr. Ryan argues that the Interstate Commerce Clause was 

unconstitutionally applied to his offense. This is another claim that he could 

have raised on direct appeal. Delatorre v. United States, 847 F.3d at 843. He 

didn’t, so the court can’t consider the claim unless he shows actual innocence 

or cause and prejudice. Id. For the reasons already stated, he hasn’t alleged facts 

that establish the actual innocence exception to a procedurally defaulted claim. 

 Mr. Ryan says he didn’t challenge the application of the Interstate 

Commerce Clause at trial or on appeal because of lack of knowledge and 

ineffective assistance of counsel. Mr. Ryan had actual knowledge of the Interstate 

Commerce Clause stipulation at trial. Delatorre v. United States, 847 F.3d at 

843-844. And for the reasons already stated, he hasn’t established that Mr. 

Truitt’s or his appellate counsel’s assistance was ineffective. Strickland v. 

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Washington, 466 U.S. 668, 688-693. Accordingly, he hasn’t established cause, 

and the court won’t consider his procedurally defaulted claim. 

Ground Five: Actual Innocence 

 Mr. Ryan next argues that the court should grant his motion under 28 

U.S.C. § 2255 because he is actually innocent. “A claim of ‘actual innocence’ is 

not itself a constitutional claim, but instead a gateway through which a habeas 

petitioner must pass to have his otherwise barred constitutional claim 

considered on the merits.” Herrera v. Collins, 506 U.S. 390, 404 (1993). 

Accordingly, Mr. Ryan’s claim of actual innocence is not on its own grounds for 

relief under 28 U.S.C. § 2255. 

Ground Six: Pretrial Investigation 

 Mr. Ryan raises Mr. Truitt’s pretrial investigation as an independent 

ground for relief. Every allegation he makes in this section of his petition was 

already raised under his ineffective assistance of counsel claim. For the reasons 

already stated, none of the issues raised are grounds for relief. 

Grounds Seven and Eight: Prosecutorial and Judicial Misconduct 

 Mr. Ryan’s final two grounds for relief are prosecutorial and judicial 

misconduct. He says that the government improperly indicted him in the face of 

exonerating evidence, which was prosecutorial misconduct. He cites a list of 

issues that he says constitute judicial misconduct, including issues related to 

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his motion to substitute counsel, his objections to the PSR, his counsel’s conflict 

of interest as an officer of the court, and denial of “defendant appeal ability.” 

 Mr. Ryan didn’t raise prosecutorial or judicial misconduct on direct appeal, 

so they are procedurally defaulted unless he shows actual innocence or cause 

and prejudice. Delatorre v. United States, 847 F.3d at 843. For the reasons 

already explained, Mr. Ryan hasn’t shown actual innocence in his petition, so he 

must show cause and prejudice to proceed on his claims at this stage. Mr. Ryan 

says he didn’t raise the issues on direct appeal because of his lack of knowledge 

and appellate counsel’s lack of effective assistance. 

 Mr. Ryan knew all the facts giving rise to his prosecutorial misconduct 

claim. Delatorre v. United States, 847 F.3d at 843-844. He and Mr. Truitt knew 

what the charges in the indictment were. Mr. Ryan alleges the indictment was 

improper based on the existence of evidence proving his innocence, but he 

doesn’t explain what that evidence is or whether it’s newly discovered. To 

establish an ineffective assistance of counsel claim, Mr. Ryan must show that 

his appellate counsel’s assistance fell below an objective standard of 

reasonableness and that, but for counsel’s error, there’s a reasonable probability 

that the outcome of his appeal would’ve been different. Strickland v. Washington, 

466 U.S. at 694. Mr. Ryan hasn’t established that his appellate counsel was 

ineffective. Accordingly, he can’t establish cause for failing to raise a claim of 

prosecutorial misconduct on direct appeal. 

 Several of the issues Mr. Ryan raises in his discussion of judicial 

misconduct have already been addressed, including the court’s denial of his 

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motion to substitute counsel and Mr. Truitt’s alleged conflict of interest as an 

officer of the court. Mr. Ryan alleges that the court didn’t allow him to object to 

the PSR and also improperly prevented him from appealing some issues. Mr. 

Ryan had knowledge of all the facts giving rise to these claims. Delatorre v. 

United States, 847 F.3d at 843-844. For the reasons already stated, Mr. Ryan 

hasn’t established that his appellate counsel was ineffective, so he can’t establish 

cause to overcome the procedural default of his judicial misconduct claim, either. 

 

Conclusion 

Based on the foregoing, Mr. Ryan’s motion to vacate, set aside, or correct 

his conviction and sentence under 28 U.S.C. § 2255 [Doc. No. 127] is DENIED. 

 SO ORDERED. 

ENTERED: January 5, 2021 

 /s/ Robert L. Miller, Jr. 

Judge, United States District Court 

cc: Timothy Ryan 

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