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KELLY v. U.S.
September 30, 2004.
PAUL KELLY, Petitioner,
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Petitioner filed his memorandum in support of his petition on
January 13, 2004. Since then he has filed a number of motions,
all seeking additional information he believes may be helpful to
him in his effort to overturn his conviction and sentence. The
latest is a motion seeking clarification of this court's
September 9, 2004, order.
Perhaps it is helpful to review the present posture of the
case. Petitioner appealed his conviction, the main thrust of the
appeal being that he was entitled to a downward departure for his
cooperation as provided in the plea agreement. The Court of
Appeals, on July 24, 2003, affirmed ths court's conclusion that
he was not. The subsequent petition raised four issues: that his
counsel at each step along the way was ineffective because of
their failure to challenge claimed violations of the Speedy Trial
Act; that he was entitled to a downward departure; that various
sentencing enhancements were improper; and that enhancements
determined by the court cannot stand because of United States v.
Booker, ___ F.3d ___ (7th Cir. 2004).
The first ground is clearly frivolous. We have furnished to
petitioner copies of the orders entered granting extensions (the
last was opposed by petitioner's counsel), which provide ample
justification for the extensions. The second was determined
adversely to petitioner upon direct appeal, and that appeal exhausted his
direct appellate rights. That issue cannot be raised again. The
third was the subject of discussion and calculations at the time
of sentencing. That involved drug amounts, use of minors, and
petitioner's leadership role. While we have the presentence
report, our notes, and various other materials, the passage of
time has dimmed our recollection of those matters. They are, of
course, matters that could have been raised on direct appeal, but
if we do not consider them now we have no doubt that petitioner
will be raising them again in the guise of ineffective assistance
of counsel. We thus direct the government to respond to those
claims on or before October 20, 2004, and petitioner to reply on
or before November 19, 2004. We see no need to furnish additional
materials to petitioner, as the relevant material is the
transcript of the sentencing hearing, and petitioner obviously
has a copy of that. Finally, we previously noted that petitioner
may possibly have a Blakely contention, but that can be raised
when and if the Supreme Court or the Seventh Circuit rules that
Blakely has retroactive application.
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