Cary v. United States of America

Filing 3

ORDER AND OPINION entered by Judge Joe Billy McDade on 11/15/2012. IT IS THEREFORE ORDERED: 1. The Clerk SHALL serve a copy of the Motion (Doc. 1) by certified mail upon Respondent pursuant to Rule 3(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. 3. Petitioner MAY file a brief with this Court within twenty-one days of the date of this Order stating any additional sentencing arguments his counsel allegedly failed to make in support of his ineffective ass istance of counsel claim. 4. Respondent SHALL file an answer, motion, or other responsive pleading within fifty-six days after service of this Order. Respondent should address any facts which would establish whether Petitioners claims are untimely or procedurally barred. In addition, Respondent should address the merits of Petitioners constitutional claims and otherwise fully comply with Rule 5 of the Rules Governing Section 2255 Proceedings for the United States District Courts. 5. Petitione r MAY file a reply to Respondents response within twenty-eight days of being served with the response. 6. Petitioner SHALL serve upon the United States Attorneys office a copy of every further pleading or other document submitted for consideration by the Court. (cc:pla)(JRK, ilcd)

E-FILED

Friday, 16 November, 2012 09:46:54 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JEREMY S. CARY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 12-cv-1469

ORDER & OPINION
This matter is before the Court on Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255, filed on November 13, 2012. (Doc.
1). Petitioner was convicted of failure to register as a sex offender in violation of 18
U.S.C. § 2250(a) after a guilty plea, and was sentenced to thirty-three months of
incarceration and twenty years of supervised release. (Doc. 1 at 1).
Petitioner raises five grounds to challenge his conviction and sentence: 1)
Petitioner received ineffective assistance of counsel based on a failure to argue
points Petitioner wanted raised during his sentencing,1 2) his calculated base
offense level was “improper and unconstitutional,” 3) the Court abused its discretion
in setting a supervised release condition limiting Petitioner’s use of computers, 4)
The Court assumes the arguments Petitioner wanted his counsel to raise are those
described in the remainder of his Motion, in grounds two through five. If Petitioner
believes his counsel was ineffective based on a failure to raise arguments not
discussed elsewhere in his Motion, he must file a supplemental brief listing those
arguments within twenty-one days of this Order; otherwise they will not be
considered.
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Petitioner should have received a downward departure based on family
responsibilities, which apparently was not argued during sentencing, and 5) a
twenty-year supervised release term is “greater than necessary punishment.” (Doc.
1 at 4-14). Pursuant to 28 U.S.C. § 2255 and Rule 4 of the Rules Governing Section
2255 Proceedings for the United States District Courts, the Court has considered
the grounds set forth in Petitioner’s Motion, and cannot find they are without merit.
Therefore, Respondent is ordered to respond to the Motion.

IT IS THEREFORE ORDERED:
1.

The Clerk SHALL serve a copy of the Motion (Doc. 1) by certified mail upon

Respondent pursuant to Rule 3(b) of the Rules Governing Section 2255 Proceedings
for the United States District Courts.
3.

Petitioner MAY file a brief with this Court within twenty-one days of the date

of this Order stating any additional sentencing arguments his counsel allegedly
failed to make in support of his ineffective assistance of counsel claim.
4.

Respondent SHALL file an answer, motion, or other responsive pleading

within fifty-six days after service of this Order. Respondent should address any
facts which would establish whether Petitioner’s claims are untimely or
procedurally barred. In addition, Respondent should address the merits of
Petitioner’s constitutional claims and otherwise fully comply with Rule 5 of the
Rules Governing Section 2255 Proceedings for the United States District Courts.

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5.

Petitioner MAY file a reply to Respondent’s response within twenty-eight

days of being served with the response.
6.

Petitioner SHALL serve upon the United States Attorney’s office a copy of

every further pleading or other document submitted for consideration by the Court.

Entered this 15th day of November, 2012.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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