Feeney v. United States of America

Filing 19

ORDER: For the reasons set forth in the attached Memorandum and Order, Petitioner Feeney's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1 ) is DENIED and his case is DISMISSED with prejudice. The Clerk of the Court is DIRECTED to enter judgment accordingly. Further, no certificate of appealability shall issue. Signed by Chief Judge Michael J. Reagan on 2/8/17. (rah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GREGORY P. FEENEY, 08052-025,
Petitioner,
v.
UNITED STATES,
Respondent.

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Case No. 3:13-cv-1353-MJR

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
I.

Introduction

This matter is now before the Court on Petitioner Gregory Feeney’s motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) and his
supporting memorandum (Doc. 2).1 The Government opposes Feeney’s Petition by
seeking enforcement of his collateral appeal waiver given in conjunction with his guilty
plea, or, alternatively, the Government contends that Feeney’s arguments lack
substantive merit (Doc. 12). Feeney filed a timely reply (Doc. 14). In his initial Petition
and in his Reply, Feeney sought an evidentiary hearing. However, for the reasons set
forth below, the Court hereby DENIES the Petition and the request for an evidentiary
hearing.

1

This is Petitioner Feeney’s first habeas corpus petition.

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II.

Facts

Pursuant to a plea agreement, Feeney pled guilty to a child pornography offense,
in violation of 18 U.S.C. § 2252(a)(4)(B). Feeney’s plea agreement contained an appeal
waiver for direct or collateral appeals (CM/ECF, S.D. Ill., Case No. 08-cr-30228-MJRDGW, Doc. 31 at 8-9). In pertinent part, the waiver stated
Defendant knowingly and voluntarily waives his right to contest any
aspect of his conviction and sentence that could be contested under Title
18 or Title 28, or under any other provision of federal law, except that if
the sentence imposed is in excess of the Sentencing Guidelines as
determined by the Court (or any applicable statutory minimum,
whichever is greater).
(Id.). The waiver also contained an exception for any appeal or collateral challenge
based on
1) any subsequent change in the interpretation of law by the United States
Supreme Court or the United States Court of Appeals for the Seventh
Circuit, which is declared retroactive by those Courts, and which renders
the defendant actually innocent of the charges covered herein, and 2)
appeals based upon Sentencing Guideline amendments which are made
retroactive by the United States Sentencing Commission (see U.S.S.G.
1B1.10).
(Id.). Petitioner Feeney does not contend that he involuntarily made this waiver.
Following a presentence investigation, and an opportunity for counsel to file
sentencing memoranda, Feeney appeared before the undersigned on December 4, 2009,
at which time he was sentenced to 114 months in the Bureau of Prisons (“BOP”), to be

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followed by 15 years of supervised release (Docs. 40, 42). Feeney did not appeal his
conviction or sentence.
Feeney also did not file a petition for habeas corpus within a year of his
conviction and sentence becoming final, as is typically required by § 2255(f). Instead, he
waited until December 30, 2013, to file his § 2255 petition, in reliance on the Supreme
Court’s decision in Peugh v. United States, 133 S.Ct. 2072 (2013). Unquestionably, his
Petition was filed within a year of Peugh being decided.
In his Petition, Feeney contends that he was sentenced in violation of the Ex Post
Facto clause because the 2008 Guidelines Manual was used to calculate his sentence
range, despite the fact that the offense conduct occurred in 2006 (Id. at 5-6).
Additionally, he contends that his trial counsel was ineffective for failing to preserve an
Ex Post Facto challenge to his sentence (Id. at 6-9). Feeney alleges that as a result of the
ineffective assistance of counsel, he entered into the plea agreement, which he might not
have agreed to had he known about the need to preserve an Ex Post Facto challenge (Id.
at 9-10). According to Feeney, the net harm of these errors is that his sentencing range
may have been inaccurate, and a potential sentencing reduction was not considered in
reaching his ultimate sentence (Id. at 16-19).
III.

Legal Analysis

Typically, a Section 2255 petition must be lodged within one year of the
petitioner’s conviction and sentence becoming final. 28 U.S.C. § 2255(f)(1). However,
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there are a number of exceptions, such as, Section 2255(f)(3) allowing for an extended
one year period to file from “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.” In
addition to the one year limitations period for filing a petition, there is also a standard
requirement that in order to bring a constitutional claim on collateral appeal, the
petitioner must also have raised that claim on direct appeal. See Massaro v. United
States, 538 U.S. 500, 504 (2003). Despite this general requirement, defendants are not
required to raise ineffective assistance of counsel claims on direct appeal in order to
preserve them for collateral appeal purposes. Id. Additionally, this requirement may
be excused if the petitioner can demonstrate good cause for the failure to raise the
claims on direct appeal and actual prejudice from the failure to raise those claims; or
that the district court’s refusal to consider the claims would lead to a fundamental
miscarriage of justice.

See e.g. Bousley v. United States, 523 U.S. 614, 622 (1998);

Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000).
As for ineffective assistance of counsel claims, in order to prevail on such a claim
on collateral review, a petitioner must establish that: “(1) his counsel’s performance fell
below an objective standard of reasonableness; and, (2) the deficient performance so
prejudiced his defense that it deprived him of a fair trial.” Fountain, 211 F.3d at 434,
quoting Strickland v. Washington, 466 U.S. 668, 688-94 (1984).

Specifically in the
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context of a claim that counsel was ineffective during plea negotiations, a petitioner
must show that “counsel’s representation fell below an objective standard of
reasonableness when measured against prevailing professional norms.’” Gaylord v.
United States, 829 F.3d 500, 506 (7th Cir. 2016). Competent counsel will “attempt to
learn all of the facts of the case, make an estimate of a likely sentence, and communicate
the results of that analysis before allowing his client to plead guilty.” Id. The petitioner
must also show that absent counsel’s deficient performance, there is a reasonable
likelihood that he would not have pleaded guilty, and would have instead gone to trial.
Id.
In Peugh, the United States Supreme Court reversed the Seventh Circuit’s
holding that the Ex Post Facto clause did not apply to the Sentencing Guidelines. Peugh,
133 S.Ct. at 2088. The Court held that though the Guidelines were advisory, it was
inappropriate for the Government to enhance the punishment for an offense by altering
the substantive formula used to reach that punishment between the time the offense
conduct was committed and the date of sentencing. Id. Thus, the Court reversed
Peugh’s case on direct appeal, remanding it for further proceedings. Id.
The Seventh Circuit recently considered a Section 2255 petition premised on the
Supreme Court’s holding in Peugh. See Conrad v. United States, 815 F.3d 324 (7th Cir.
2016). In Conrad a defendant was sentenced based on a Guidelines calculation that
projected his sentencing range as 360 months to life imprisonment for multiple
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violations of federal law relating to child pornography. Id. at 326-27. The Conrad
conviction and sentence became final five months before Peugh was decided. Id. Had
the sentencing court looked to the Guidelines in effect at the time the offense conduct
occurred, the projected range would have been 121 to 151 months imprisonment, rather
than 360 months to life. Id. Ultimately, the sentencing court pronounced a below
guidelines sentence of 198 months. Id. The Seventh Circuit held that Peugh was not
retroactively applicable, and thus it did not warrant a resentencing for the petitioner,
even though, applying Peugh, the petitioner may have received a lower sentence. Id. at
328.
IV.

Legal Analysis

Here, the Court must first consider Petitioner’s claim that his trial counsel was
ineffective because, if the Court finds counsel was ineffective, that would render the
direct and collateral appeal waiver invalid. Petitioner alleges that his trial counsel was
ineffective for failing to preserve an Ex Post Facto challenge to his sentence on the basis
that he was sentenced under the Guidelines manual in effect at the time of arraignment
(2008), rather than at the time he committed the criminal conduct (2006). Petitioner
acknowledges that such an Ex Post Facto argument was foreclosed at the time of his plea
and sentencing by controlling Seventh Circuit precedent, but because Peugh was in the
works, he alleges that his counsel should have actively worked to preserve an Ex Post

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Facto challenge to his sentence. The conduct Petitioner complains of does not constitute
ineffective assistance of counsel.
At the time of his conviction and sentencing, Seventh Circuit precedent did not
require a sentencing court to use the guidelines in effect at the time of the offense
conduct. See United States v. Demaree, 459 F.3d 791 (7th Cir. 2006). Though that later
changed in Peugh, counsel was not responsible for forecasting that change in order to
render effective assistance. See Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993) (“The
Sixth Amendment does not require counsel to forecast changes or advances in the
law or to press meritless arguments before a court.”). Additionally, even if the Court
accepted the premise that counsel should have anticipated such a change, it would not
have mattered because under either the 2006 or the 2008 guidelines the Petitioner’s
sentencing range and possible departures were identical. So even assuming counsel
should have preserved an Ex Post Facto challenge, such a challenge had no potential of
altering the ultimate sentence. Thus, not only was counsel not ineffective for failing to
preserve the challenge, but the failure also did not cause the Petitioner any prejudice.
In light of the conclusion that counsel was not ineffective, the plea agreement
suffers no infirmity and the appeal waiver is enforceable. The Seventh Circuit held that
Peugh was not retroactively applicable, so Peugh is not the sort of subsequent legal
development that permits the Petitioner to circumvent the appeal waiver. See Conrad,
815 F.3d at 328. What is more, the Petitioner suffers no prejudice or manifest injustice
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by the inability to overcome the appeal waiver because either version of the guidelines
would have resulted in the same sentence.
V.

Pending Motions

As the record “conclusively demonstrates that [petitioner] is entitled to no
relief,” the Petitioner’s request for an evidentiary hearing (Doc. 14 at pp. 3-4) is
DENIED. Prewitt v. United States, 88 F.3d 812, 820 (7th Cir. 1996).
Petitioner’s Motion for Expedited Consideration (Doc. 18) is rendered MOOT by
the issuance of this order.
VI.

Certificate of Appealability

Under Rule 11(a) of THE RULES GOVERNING SECTION 2255 PROCEEDINGS,
the “district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” Thus, the Court must determine whether Petitioner’s
claims warrant a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2).
A certificate of appealability is required before a petitioner may appeal a district
court’s denial of his habeas corpus petition. A petitioner is entitled to a certificate of
appealability “only if the applicant has made a substantial showing of the denial of a
constitutional right.” This requirement has been interpreted by the Supreme Court to
mean that an applicant must show that “reasonable jurists could debate whether…the
petition should have been resolved in a different manner or that the issues presented

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were adequate to deserve encouragement to proceed further.” Miller-el v. Cockrell, 537
U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, the undersigned finds no basis for a determination that the Court’s instant
decision to dismiss Petitioner’s claims is debatable or incorrect. For the reasons stated
above, Petitioner asserted two meritless claims that reasonable jurists would conclude
provide no basis for relief. Therefore, the Court declines to certify any issues for review
pursuant to 28 U.S.C. § 2253(c).
VII.

Conclusion

Based on the foregoing analysis, Petitioner Feeney’s motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is DENIED and his case is
DISMISSED with prejudice. The Clerk of the Court is DIRECTED to enter judgment
accordingly. Further, no certificate of appealability shall issue.
IT IS SO ORDERED.
DATED: February 8, 2017
s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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