govinfo:USCOURTS-txed-6_24-cv-00013-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TEXAS 
TYLER DIVISION 
 
CHARLES ORANGE, 
 
 Petitioner, 
 
v. 
 
UNITED STATES OF AMERICA, 
 
 Respondent. 
 
 
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CIVIL ACTION NO. 6:24-CV-13-RWS-KNM 
 
 
ORDER ADOPTING REPORT AND RECOMMENDATION 
OF THE UNITED STATES MAGISTRATE JUDGE 
Petitioner Charles Orange, a prisoner confined at the Federal Correctional Institute 
Texarkana, proceeding pro se , filed this 28 U.S.C. § 2255 motion challenging his federal 
conviction. Docket No. 1. The case was referred to United States Magistrate Judge K. Nicole 
Mitchell for findings of fact, conclusions of law, and recommendations for disposition of the 
proceeding. Docket No. 2. 
I. Procedural History and Background 
After a jury trial, Petitioner was sentenced to 240 months’ imprisonment—with a term of 
supervised release for life—for one count of possession of child pornography in violation of 18 
U.S.C. § 2252(a)(5)(B). Docket No. 13 at 1–2. Petitioner filed a direct appeal, and the United 
States Court of Appeals for the Fifth Circuit affirmed the conviction. See United States v. Orange, 
No. 21-40176, 2023 WL 2755584, at *1 (5th Cir. Apr. 3, 2023). This proceeding followed. 
Petitioner raises several claims of ineffective assistance of trial and appellate counsel. 
Docket No. 1. Specifically, he maintains that trial counsel was ineffective in failing to investigate 
whether his email had been used on Google to access illegal pornography websites . Id. at 11. He 
also contends that appellate counsel was ineffective in failing to raise several issues on direct PageID #: 
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appeal, including (1) an alleged Brady violation, (2) a Batson claim, (3) jury bias, (4) his right to 
confront his accuser, (5) an illegal search and seizure, and (6) prosecutorial misconduct. Id. at 2–
15. The docket reflects that the sole issue on appeal was trial court error —namely, whether the 
trial court erred in permitting the Government to submit evidence of Petitioner ’s prior conviction 
for indecency with a child. Docket No. 13 at 1; Orange, 2023 WL 2755584, at *1. 
On November 24, 2025, Magistrate Judge Mitchell issued a report and recommendation, 
recommending that Petitioner’s motion be denied and that the case be dismissed with prejudice. 
Docket No. 13. The magistrate judge also recommended that the Court deny Petitioner’s request 
for a certificate of appealability sua sponte because Petitioner failed to make a substantial showing 
of the denial of a constitutional right. Id. at 9–10. After the magistrate judge granted an extension 
of time in which to do so, Petitioner filed objections. Docket No. 16; Docket No. 20. 
II. Petitioner’s Objections 
In his objections, Petitioner first faults the Government for contending that his trial counsel 
provided adequate representation. Docket No. 2 0 at 1. He states that he “still believes” that trial 
counsel’s performance refutes the notion that his performance was effective during trial, as trial 
counsel “failed to conduct a proper investigation in the false allegations brought before the court.” 
Id. Petitioner insists trial counsel was not prepared for trial given his lack of investigation and that 
during trial counsel’s opening statement, counsel suggested that Petitioner was “guilty but that the 
all-white jury had to believe that without a reasonable doubt.” Id. 
Petitioner also claims in his objections that trial counsel was asked “ to examine the 
Samsung phone for finger prints,” but failed to do so. Id. Additionally, Petitioner complains that 
trial counsel failed to investigate a Wal-Mart receipt and two specific websites— again maintaining 
that trial counsel did not object to the racial makeup of the jury. Id. Petitioner further insists that 
trial counsel informed him that he could file a motion under 28 U.S.C. § 2255, which allegedly PageID #: 
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proves that trial counsel was ineffectiv e—otherwise Petitioner would not have been informed 
about how to file one. Id. at 1–2. 
III. Discussion and Analysis 
Petitioner’s objections are overruled. Though Petitioner maintains that trial counsel was 
constitutionally ineffective for failing to investigate a Wal- Mart receipt, phone fingerprints, 
specific websites, and an “all white jury,” a review of Petitioner’s § 2255 motion reveals that he 
did not raise these claims with respect to trial counsel until now . Allegations raised for the first 
time in objections to a magistrate judge’s report and recommendation are not properly before the 
Court and will not be conside red. See United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 
1992); see also Place v. Thomas , 61 F. App’x 120, 2003 WL 342287, *1 (5th Cir. 2003) 
(unpublished) (“Generally, an issue raised for the first time in an objection to a magistrate judge’s 
report is not properly before the district court and therefore is not cognizable on appeal.”). 
Furthermore, a review of Petitioner’s underlying § 2255 motion reveals that, while he did 
raise these claims regarding appellate counsel, he did not raise them in regard to trial counsel . 
Docket No. 1 at 11. Rather, Petitioner claimed in his underlying motion that trial counsel was 
ineffective for failing to investigate whether his email had been used on Google to access illegal 
pornography websites . Id. He raised no other claim regarding trial counsel. Id. Accordingly, 
Petitioner’s objections concerning trial counsel’s ineffectiveness surrounding an alleged “all white 
jury,” a Wal-Mart receipt, and Samsung fingerprints are not properly before the Court. Docket No. 
20 at 1. 
To the extent Petitioner presents a proper objection regarding the magistrate judge’s 
rejection of his claim regarding trial counsel’s alleged failure to investigate, claims of ineffective 
assistance of counsel are evaluated under the Strickland standard. In order to show that counsel PageID #: 
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was constitutionally ineffective, a petitioner must show both deficient performance and ensuing 
prejudice. See Strickland v. Washington, 466 U.S. 668, 687-91 (1984). 
A petitioner alleging ineffective assistance of counsel must show both deficient 
performance and prejudice. See Charles v. Stephens, 736 F.3d 380, 388 (5th Cir. 2013) (“A failure 
to establish either element is fatal to a petitioner’s claim.”) (internal citation omitted). In evaluating 
whether counsel’s conduct was deficient, the question is whether the attorney’s conduct fell below 
an objective standard of reasonableness based on “prevailing norms of practice.” See Loden v. 
McCarty, 778 F.3d 484, 494 (5th Cir. 2015) (internal citation omitted). Moreover, to establish 
prejudice, a petitioner must show that there is a reasonable probability that —absent counsel’s 
deficient performance—the outcome or result of the proceedings would have been different. Id . 
And it is well -settled that a “reasonable probability” is one that is sufficient to undermin e 
confidence in the outcome of the proceedings. Strickland, 466 U.S. at 694. 
Turning directly to Petitioner’s allegations, to show that counsel was ineffective in failing 
to investigate, a petitioner must allege with specificity what the investigation would have revealed 
and how it would have changed the outcome of the trial. Docket No. 13 at 5 (citing United States 
v. Green, 882 F.2d 999, 1003 (5th Cir. 1989 )). Here, Petitioner generally claims that a review of 
his emails would show that he did not access pornography websites. But, as the magistrate judge 
determined, Petitioner neither shows trial counsel’s deficient performance nor any ensuing 
prejudice. The record reflects that Petitioner ’s trial counsel requested discovery from the 
government concerning evidence linking Petitioner to child pornography—and that counsel 
retained an investigator to assist with the technical aspects of the charges. Docket No. 13 at 6 
(citing Case No. 6:19-cr-0004-01, Docket Nos. 54-3–4; Docket No. 59). PageID #: 
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Moreover, as highlighted in the report and recommendation, the government established at 
trial that Petitioner ’s Samsung phone contained illegal child pornography and that Petitioner’s 
email address was used to register for (and access) child pornography websites using a Google 
Chrome browser on his Samsung phone, (No. 6:19-cr-0004-01, Docket No. 121 at 95–96; 122–
24; 154–163 (trial transcript)). The jury found this evidence credible, and a claim of ineffective 
assistance of counsel will fail “if the facts adduced at trial point so overwhelmingly to the 
defendant’s guilt that even the most competent attorney would be unlikely to have obtained an 
acquittal.” See, e.g., Green v. Lynaugh, 868 F.2d 176, 177 (5th Cir. 1989). 
Here, given trial counsel’s retention of an expert to assist with and review the technical 
aspects of the charges against Petitioner —coupled with the government establishing at trial that 
Petitioner’s own Samsung phone accessed illegal child pornography on Google Chrome —
Petitioner failed to show that he was prejudiced by counsel’s alleged failure to investigate 
Petitioner’s Google browser history. He cannot demonstrate that the outcome would have been 
different, particularly given the overwhelming evidence of his guilt presented at trial. 
Plaintiff did not object to the other portions of the magistrate judge’s report and 
recommendation. Docket No. 20. For the foregoing reasons, Petitioner’s objections are overruled. 
IV. Conclusion 
The Court has conducted a careful de novo review of those portions of the magistrate 
judge’s proposed findings and recommendations to which the Petitioner objected. See 28 U.S.C. § 
636(b)(1) (district judge shall “make a de novo determination of those portions of the report or 
specified proposed findings or recommendations to which objection is made.”). After review, the 
Court concludes that the r eport and recommendation of the m agistrate judge is correct . 
Accordingly, it is PageID #: 
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ORDERED that the report and recommendation of the magistrate judge (Docket No. 13) 
is ADOPTED as the opinion of the District Court. It is further 
ORDERED that Petitioner’s objections (Docket No. 20) are OVERRULED. It is further 
ORDERED that Petitioner’s motion pursuant to 18 U.S.C. § 2255 (Docket No. 1) is 
DENIED, and this case is DISMISSED WITH PREJUDICE. It is further 
further 
 ORDERED that Petitioner’s request for a certificate of appealability is DENIED. It is 
 ORDERED
 that all motions which may be pending in this civil action are hereby 
DENIED-AS -MOOT. 
.
 
____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE
So ORDERED and SIGNED this 10th day of June, 2026. PageID #: 
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