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Fogle files, loses constitutional challenge
olivia Covington for www.theindianalawyer.com
Former Subway pitchman Jared Fogle has lost yet another challenge to his 15-year sentence for child pornography charges, with the Indiana Southern District Court this time upholding the constitutionality of a statute through which Fogle has been permitted to seek relief.
After initially filing a motion to withdraw his guilty plea — which Judge Tanya Walton Pratt treated as a motion to vacate, set aside or correct sentence — on Feb. 26, Pratt gave the Indianapolis native until April 6 to supplement the motion “with a complete statement and grounds on which he could and does challenge his conviction and/or sentence.†Alternatively, Fogle was given the opportunity to withdraw his motion, or notify the court that the motion already contains a complete statement of his claims and grounds for relief.
If Fogle does not take one of those three actions by April 6, his motion will be treated as one under 18 U.S.C. 2255, and his case will proceed. But rather than taking one of those actions, Fogle filed a constitutional challenge to section 2255(f)(1-4), alleging the one-year statute of limitations for section 2255 motions unconstitutionally denies a party habeas relief by setting a time limit. He also maintained Civil Procedure Rule 5.1 requires the court to notify the U.S. Attorney General of his constitutional challenge.
But Pratt found no constitutional defect with section 2255, writing in a Wednesday order that the statute of limitations merely “imposes a congressionally-intended limitation in order to further the well-established goal of finality in criminal convictions.†Further, because the statute is not unconstitutional, Pratt declined to certify the constitutional question to the attorney general.
The judge also determined Fogle’s constitutional challenge was actually a motion to withdraw his section 2255 motion and directed the clerk to modify the docket accordingly. However, she withheld judgment on the motion to withdraw considering the April 6 deadline has not yet passed, then extended Fogle’s deadline to supplement the motion by one week.
Fogle’s original motion to vacate, set aside or correct sentence stems from his convictions of traveling to engage in illicit sexual conduct with a minor and distribution and receipt of child pornography. He claims his guilty pleas to those charges were not voluntary because he erroneously pleaded guilty to a “conspiracy†charge, referencing conspiracy language included in the child porn charge.
Fogle also alleged in his criminal case — United States of America v. Jared S. Fogle, 1:15-cr-00159 — that he is a sovereign citizen not subject to the court’s jurisdiction,  but Pratt rejected that argument in November 2017. When he continued to challenge the court’s jurisdiction and filed the motion to withdraw his guilty plea, Pratt re-docketed the motion to the instant civil case, Jared S. Fogle v. United States of America, 1:18-cv-00571.
IS IT TRUE MARCH 29, 2018
We hope that today’s “IS IT TRUEâ€Â will provoke honest and open dialogue concerning issues that we, as responsible citizens of this community, need to address in a rational and responsible way?
IS IT TRUE that Echo Housing is finally starting to attempt to shed some light on the workings of the organization?…that newly appointed acting head of the organization Chris Metz has been appearing on the TV cameras with Evansville DMD Director Kelly Coures explaining that the alleged criminal activity at Echo will not impact the programs delivered to the people who depend on Echo Housing for a place to live?…its also obvious that no one will be losing a roof over their head as the Evansville City Council delays paying any funds to Echo until the police investigation and forensic audit is completed?… The City Council is doing exactly the right thing by holding back on the funding of ECHO Housing until the police investigation and forensic audit are completed?
IS IT TRUE the last thing that should not be done by City Council is to fund an expansion of a dysfunctional (ECHO Housing) organization that is not on top of where some the money has been going?…another thing that needs to be a part of the police investigation and the forensic audit is that everyone associated with Echo Housing should be cleared of wrongdoing?…that anyone who is accused that is eventually convicted or plea bargains regarding the alleged theft of taxpayer dollars should be gone?
IS IT TRUE we wonder why the management of Echo Housing isn’t releasing the names of the Board of Directors, this is just unfathomable? …the bottom line is that the Board Of Directors is responsible for the losses associated with failing to provide fiduciary oversight and keeping their names to the public is not acceptable?
IS IT TRUE we have been contacted by several readers asking us what is the educational and professional background that qualifies one to be hired as the Executive Director of ECHO Housing?  …this seems like a very reasonable question and should be answered by the Chairmen of the Board of ECHO Housing Corporation?  …while he is providing us the answer to this question we would like for him to tell us who appoints members to serve on the ECHO board and for how long?
IS IT TRUE that the City-County Observer has been made aware that there are numerous aquifers in greater Evansville that could be tapped to feed the new water treatment plant?…doing so would get the residents of Evansville out of the business of drinking from the polluted Ohio River?…this is a developing story and the powers that be would be well served to consider groundwater sources for future use as opposed to continuing to lap from the most polluted river in America?
IS IT TRUE that the City of Evansville has moved forward with a property lien against the owner of the former McCurdy Hotel for a water bill of nearly $1.5 Million?…this is for the water and sewer charge for the 93 apartments for roughly one year?…this water bill amounts to $1,344 per apartment per month for the first year of operation and the apartments aren’t full of residents yet?…adding in another $878 per month to service the debt and other operating expenses like maintenance, management, electricity, taxes, etc. and it becomes obvious that the break even for any single apartment is going to be at least $2,500 per month?
IS IT TRUE when using an 85% occupancy assumption the reality is that the McCurdy Apartments are going to need to charge around $3,000 per month to be a profitable enterprise?…there is no market for $3,000 per month apartments of these sizes in downtown Evansville?…given these truths one can only reach the conclusion that the McCurdy has been killed by government for the second time since former Mayor Weinzapfel marched the residents (senior citizens) of the place up the street to make way for a campaign supporter from Indianapolis to purchase the building?…that idiocy costs the City of Evansville taxpayers about $1.4 million?…if something isn’t done concerning the current water and sewer bill issue it may be the death knell of this historical building?
IS IT TRUE that the City of Fishers, Ind has renewed a $240,000-per-year legal services contract with Jennifer Messer, who will again work from Washington, D.C.
…Jennifer Messer is the wife of Congressmen Luke Messer, R Shelbyville and serves as the city’s general legal counsel with a focus on development?  … this is the eighth year she has been hired by the City of Fishers.
IS IT TRUE that the hiring of the wife of Congressmen Luke Messer, RÂ Shelbyville caused controversy last year when it was revealed she no longer lived in Indiana and was performing her job from the D.C. area, where she resides with her husband, U.S. Rep. Luke Messer, R-Shelbyville, a Republican candidate for U.S. Senate?
IS IT TRUE that United States candidate Mike Braun has publically stated that if elected he shall do the following things?  …Mr. Braun pledges if elected he will vote to enact strict term limits; pass a lifetime lobbying ban for members of Congress; eliminate the Congressional pension; make Congress follow the same laws as everyone else and ban pork barrel spending?  …as of today, we haven’t heard a word from Mr. Brauns opponents what they pledge to do if they are elected to the United States Senate?
IS IT TRUE that our current “Readers Poll” is stating in large numbers that the current ECHO Housing Board Of Director must go?  …with the taxpayers donating around $500,000 to help funds the activities of ECHO it would make good sense that at least one Council member should be appointed to this board?
Todays “Readers Poll” question is: Do you feel that the current ECHO Housing board members were not good stewards of the public trust and should be immediately replaced?
Please take time and read our articles entitled “Statehouse Files, Channel 44 News, Law Enforcement, Readers Poll, Birthdays, Hot Jobs and “Local Sports.” You now are able to subscribe to get the CCO daily.
If you would like to advertise on the CCO please contact us CityCountyObserver@live.com.
Mayor’s Substance Abuse Task Force Working Through Beginning Stages
Evansville Mayor Lloyd Winnecke says substance abuse is a problem that effects nearly every familiar in our community. He showed his commitment to stopping the every growing drug problem last August when he rebranded the “No Meth Task Force†to the “Mayor’s Substance Abuse Task Force.â€
The new scope of the project showed signs that the meth lab problem in Evansville was on the way out, but the substance abuse problem is here to stay.
The substance abuse task force is made up of as many community members as government officials. They were at Fairlawn United Methodist Church Wednesday for a traveling town hall on substance abuse.
The town hall gave Dr. William Wooten, the chair of the task force, a chance to update on the progress they have made so far. He says the project is still in the beginning stages but they are making great progress.
One of the big challenges they have faced is trying to diagnose the problem. Wooten says they are working on a database to keep track of demographics of drug abusers so they can find the best, most personalized ways to fight this problem.
Members of the task force were pleased with a website that has many resources for those addicted to drugs, their families and those who want to help. It can be found here at msatf.org.
Both the mayor and Dr. Wooten say this problem can’t be fixed with local government alone, and that’s one of the reasons they recruited community members to the task force.
One of those community members is Andrea Grace Phillips. She is working on FAST, family addiction support teams. Phillips is training families to go into hospitals the moments after someone recovers after overdosing. She says this time is key for someone to get help, because only about 6 to 8 percent seek help immediately. What she says is different about FAST is that they will also give resource to members of the family of the person who overdosed.
Also discussed at the travelling town hall, was a trip Mayor Winnecke and Dr. Wooten took to WARM, the Women’s Addiction Recovery Manor in Henderson. they both liked what they saw, and how it was funded. They say the Commonwealth foots much of the bill, and they are curious if Indiana would do the same. So the next time Mayor Winnecke goes he says he’ll be bringing along Lt. Governor Suzanne Crouch, to see if Evansville could be home to a program like that.
Fishers Renews $240K Legal Deal With Congressman’s Wife
il for www.theindianalawyer.com
The Indianapolis suburb of Fishers has renewed a $20,000-a-month legal services contract with the wife of Republican Senate candidate Luke Messer.
The city of Fishers pays Jennifer Messer $240,000 a year for part-time legal work she does from home in suburban Washington, where the family moved after Luke Messer’s election to Congress in 2012.
Fishers officials gave final approval Monday to her 2018 contract.
The Associated Press previously reported that she makes more than many full-time government lawyers, including the city’s staff attorneys.
Fishers Mayor Scott Fadness said it’s a good deal for the city because she charges less than many private attorneys.
SEWERS PROJECTS FIRST AND FUN AND GAME PROJECTS SECOND!
We hope this political cartoon will bring home the point its time the City focus on getting our drinking and bathing water from other sources than the polluted and toxic Ohio River.
This cartoon shows what we are dumping into the muddy and toxic Ohio River.  Can you imagine what upstream Metropolitan cities are dumping into the Ohio River that we are eventually using for our personal and commercial uses.?
We commend members of the Evansville Water And Sewer Utilities Board for beginning to look for reasonable and affordable options in order for us to get safe and sustainable water.
It’s obvious its time for political leaders to look for affordable ways to find a clean and safe way to retrieve drinking water other than from the toxic and muddy Ohio River.
It’s time for our elected officials to put the “FUN AND GAMES CAPITAL” projects on the back burner and focus on ways to provide us with clean, affordable and toxic free water.
Some Lawmakers Donating Special Session Pay To Charities
By Quinn Fitzgerald
TheStatehouseFile.com
INDIANAPOLIS ––Some members of the Indiana General Assembly are giving the pay they receive for the special session to charity.
Monday, Gov. Eric Holcomb announced that the General Assembly will hold a special session in May, during which he wants legislators to address bills focused on school safety and tax system adjustments that would match changes at the federal level.
The estimated cost for the special session is $30,000 per day with legislators receiving a daily expense stipend of $173 as determined by the federal government.
Indiana Senate President Pro Tem David Long, R-Fort Wayne, agrees with Holcomb’s decision to call for a special session because of the issues that need to be addressed before 2019 but said it is appropriate to donate any pay he receives to charity.
Long announced Wednesday that the Senate Republican leadership will contribute special session per diem to the Military Family Relief Fund.
The MFRF, which is administered by the state through the Indiana Veterans’ Affairs Commission, provides financial assistance to veterans and their families for basic needs such as food, housing, child care, medical services, education, transportation and utilities.
Long said donating to the MFRF respects Indiana taxpayers by keeping the money within the state while providing needed resources to military families.
“While it is entirely up to each individual legislator what to do with their per diem payment, we are encouraging our colleagues to follow our lead and donate to the MFRF,†he said. “We believe this is the right thing to do.â€
Sen. Travis Holdman, R-Markle, is also donating to the MFRF and said elected officials of the General Assembly should accept the fault for not getting the work done in time during the regular session.
“It’s just the right thing to do to donate to charity or to refund back to the state,†Holdman said.
While lawmakers can’t legally opt-out from being paid for days worked, each is allowed to determine whether or not to donate their per diem to charitable causes. So, while House Democratic Leader Terry Goodin, D-Austin, and Senate Democratic Leader Tim Lanane, D-Anderson, are against a special session altogether, they will also make donations.
Because Holcomb and Republican leaders have said they will not be addressing issues with the Department of Child Services during the May session, the minority leaders in both chambers said they will donate to groups who support at-risk children.
“As the Republican supermajority’s mismanagement jeopardized the ability of the legislature to take any action to help our children in the Department of Children Services, I will take any pay that I must receive during the special session and donate that money to assist children who are in the foster system,†Lanane said.
Wednesday, House Speaker Brian Bosma said the session could potentially last only one day, but he and his wife, Cheryl, are donating $1,500 to the Indiana Association of Resources and Child Advocacy. Bosma challenged Goodin, Lanane and Indianapolis Star columnist Tim Swarens to do the same.
“There’s been some who’ve been trying to make political hay out of this,†Bosma said.
Goodin declined and said Long and Bosma should have chosen to meet the challenge of doing their jobs in the regular session instead of issuing challenges now in an attempt to cover up their own mistakes.
“The charities I choose will be those that benefit Hoosier veterans, as well as at-risk children – exactly the children that should have been helped this session by those who run the Legislature by taking a more active interest in reforming the state’s Department of Child Services,†Goodin said in a statement.
Along with Goodin, the House Democrats who have confirmed they are donating their pay are: Reps. Ed DeLaney, Indianapolis; Dan Forestal, Indianapolis; Carey Hamilton, Indianapolis; Ryan Hatfield, Evansville; Sheila Klinker, Lafayette; Justin Moed, Indianapolis; and Melanie Wright, Yorktown.
Brent Stinson, press secretary for the Senate Democrats, said the group has yet to meet and discuss whether they will be donating their pay. Sens. Jean Breaux, Indianapolis, and Lanane are the only members of the caucus to confirm their contributions.
Senate Republicans who are joining Holdman and Long in giving to charities are: Sens. Rodric Bray, Martinsville; Liz Brown, Fort Wayne; Michael Crider, Greenfield; Susan Glick, LaGrange; Randy Head, Logansport; Jim Merritt, Indianapolis; Mark Messmer, Jasper; Ryan Mishler, Bremen; Chip Perfect, Lawrenceburg; John Ruckelshaus, Indianapolis; and Jim Tomes, Wadesville.
Erin Reece, director of communications and technology for the House Republican Caucus, said a comprehensive list of members who are donating is not available.
FOOTNOTE: Quinn Fitzgerald is a reporter for TheStatehouseFile.com, a news website powered by Franklin College journalism students.
Funding Boost Enables Raises For Federal Defenders, Jurors
IL for www.theindianalawyer.com
A nearly $200 million increase in the Fiscal Year 2018 budget is enabling the federal judiciary to increase compensation for jurors and indigent defense attorneys while also performing construction projects at three federal courthouses.
President Donald Trump signed the Consolidated Appropriations Act of 2018 into law on March 23, allocating $7.1 billion to the federal judiciary for discretionary appropriations. That’s a 2.7 percent increase over FY 2017, the U.S Courts announced on Wednesday.
The budget boost will lead to an increase in daily compensation for federal jurors to $50 per day, the first time juror compensation has been increased since 1990. The current daily juror fee is $40. The increase will take effect May 7.
Indigent defense attorneys also will receive a compensation boost, with the hourly rate for court-appointed private lawyers rising to $140 in non-capital cases. Similarly, compensation for attorneys in capital cases will rise to $188 an hour.
Those rate increases represent cost of living adjustments for capital and non-capital attorneys, plus an additional adjustment for non-capital defenders. The U.S. Courts office said recent surveys showed an increased difficulty in retaining qualified and experienced defenders at the prior rates, which were $8 and $3 less for non-capital and capital attorneys, respectively.
“This is an excellent result that enables the judiciary to fulfill its mission,†U.S. Courts administrative office director James C. Duff said in a statement. “We are especially pleased that Congress recognized the critical public service provided by the citizens who serve on juries as well as the attorneys who represent defendants who can’t afford a lawyer.â€
The funding increase also will enable the judiciary to pay for new courthouse construction projects in Harrisburg, Pennsylvania; Huntsville, Alabama; and Fort Lauderdale, Florida. The Pennsylvania project will receive $137.2 million, the Alabama project will receive $110 million and the Florida project will receive $190 million.
The courts cited security, space and safety issues as the driving forces behind the construction projects. In Huntsville, for example, the courthouse has only one stairwell, creating serious safety issues in the event of an emergency.
The judiciary received similar congressional funding in 2016 that paid for nine courthouse projects and partially funded the Harrisburg project.
“The judiciary greatly appreciates the funding for these critically needed projects,†District Judge Susan R. Bolton, chair of the judiciary’s Space and Facilities Committee, said in a statement. “We’re very pleased that Congress continues to show confidence in the judiciary’s construction program.â€
Finally, the funding increase provided one-year extensions for 10 temporary district judgeships in Alabama, Arizona, California, Florida, Hawaii, Kansas, Missouri, New Mexico, North Carolina and Texas.
The Congressional spending bill also allocated $410 million to the Legal Services Corporation, despite earlier concerns that Trump would cut legal aid funding from the federal budget. The boost to LSC is expected to benefit Indiana Legal Services.