Neer v. USA

Filing 3

ORDER: Petitioner David Allen Neer's 1 Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED. The 2 Motion for Leave to Proceed in forma pauperis is DENIED as moot. This action is DISMISSED, and the Clerk of the Court is DIRECTED to enter judgment accordingly. Signed by Judge Nancy J. Rosenstengel on 3/13/2018. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID ALLEN NEER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 3:17-CV-00629-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Motion to Vacate, Set Aside or Correct
Sentence filed by Petitioner David Allen Neer pursuant to 28 U.S.C. § 2255 (Doc. 1). On
March 8, 2013, Neer pleaded guilty to one count of possession of child pornography,
pursuant to 18 U.S.C. § 2252(a)(4)(B) (Case No. 3:11-cr-30223-NJR, Doc. 26). 1 Neer now
challenges the restitution component of his sentence, claiming that his Presentence
Investigation Report identified no victims who were seeking restitution. And, he claims,
if the victims do not know about him, then he has not done them any harm.
Under Rule 4(b) of the Rules Governing § 2255 Proceedings in the United States
District Courts, a judge receiving a § 2255 motion must conduct a preliminary review
and, “[i]f it plainly appears from the motion, any attached exhibits, and the record of
prior proceedings that the moving party is not entitled to relief, the judge must dismiss
the motion and direct the clerk to notify the moving party.” A preliminary review of
Neer pleaded guilty before Magistrate Judge Wilkerson and was sentenced by District Judge G. Patrick
Murphy, who retired in December 2013. The criminal case was transferred to the undersigned when this
§2255 motion was filed in June 2017.

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Neer’s motion shows that it must be dismissed, as it plainly appears that he is not
entitled to relief.
A motion under § 2255 allows a federal prisoner “in custody . . . claiming a right
to be released” to attack his sentence on the grounds that it was imposed “in violation of
the Constitution or laws of the United States, or that the court was without
jurisdiction . . . or that the sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C. § 2255. The Seventh Circuit has held
that a criminal defendant who is in custody cannot, under § 2255, challenge a restitution
order because the relief requested does not qualify as a “right to be released,” as
required by § 2255. United States v. Bania, 787 F.3d 1168, 1172 (7th Cir. 2015) (“A 28 U.S.C.
§ 2255 motion, for instance, cannot be used as a vehicle for challenging the restitution
component of a sentence.”); Barnickel v. United States, 113 F.3d 704, 706 (7th Cir. 1997).
Accordingly, Neer has failed to state a cognizable claim under § 2255.
Even if Neer had raised a valid claim, the Court notes that his argument would
still fail. As part of his plea agreement, Neer acknowledged that he understood
restitution was mandatory (Case No. 3:11-cr-30223-NJR, Doc. 26). It is true that the First
Amended Presentence Investigation Report entered on May 16, 2013, provides: “To date,
there is no information that any victim is seeking restitution.” (Case No.
3:11-cr-30223-NJR, Doc. 35, ¶ 82). On June 14, 2013, however, the parties filed a Joint
Request for Order of Restitution (Doc. 42). The Joint Request stated that while the Plea
Agreement did not address restitution in any detail, among the victims identified in
Neer’s collection of child pornography were the victims depicted in the “Cindy” and

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“Jan_Feb” series (Id.). Defendant Neer then “consent[ed] to the entry of an Order of
restitution in favor of each victim in the amount of $500 each.” In exchange, the
Government agreed it would not seek a fine against Neer2 (Id.). Because Neer consented
to the payment of $1,000 in restitution, to two identified victims, in exchange for the
Government choosing not to seek a fine, the restitution order was valid (See Case No.
3:11-cr-30223-NJR, Docs. 42, 52). Neer is not entitled to any relief; thus, his motion must
be dismissed.
CERTIFICATE OF APPEALABILITY
Should Neer desire to appeal this Court’s ruling dismissing his motion, he must
first secure a certificate of appealability, either from this Court or from the Court of
Appeals. See FED. R. APP. P. 22(b); 28 U.S.C. § 2253(c)(1). Pursuant to § 2253, a certificate
of appealability may issue “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 would find the
district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). A petitioner need not show that his appeal will
succeed, but he must show “something more than the absence of frivolity” or the
existence of mere “good faith” on his part. Miller-El v. Cockrell, 537 U.S. 322, 337, 338
(2003). If the district court denies the request, a petitioner may request that a circuit
judge issue the certificate of appealability. FED. R. APP. P. 22(b)(1)-(3).
For the reasons detailed above, Neer is not claiming the denial of a constitutional

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The Government also cited Neer’s indigence as a second reason for not seeking a fine.

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right and has not stated any grounds for relief under § 2255. Reasonable jurists could not
debate that conclusion. Thus, Neer has not made “a substantial showing of the denial of
a constitutional right,” and a certificate of appealability will not be issued.
CONCLUSION
For these reasons, Petitioner David Allen Neer’s motion pursuant to 28 U.S.C.
§ 2255 is DENIED. This action is DISMISSED, and the Clerk of the Court is DIRECTED
to enter judgment accordingly.
IT IS SO ORDERED.
DATED: March 13, 2018
_____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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