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McCarty v. Buscher

January 27, 2010

ROGER W. MCCARTY, PETITIONER,
v.
JERRY BUSCHER, RESPONDENT.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM and ORDER

A. Introduction, Facts, and Procedural Background

In May 2003, Roger McCarty was convicted on various drug charges, involving manufacture and possession with intent to manufacture methamphetamine, and possession with intent to deliver cannabis. He has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the calculation of the amount of methamphetamine for sentencing purposes and the validity of a search warrant.

The undersigned District Judge adopts - as did United States Magistrate Judge Proud - the underlying facts gleaned from the opinion of the Supreme Court of Illinois in McCarty's case, People v. McCarty, 858 N.E.2d 15 (Ill. 2006).

On December 20, 2001, a Marion County deputy sheriff obtained a warrant to search McCarty's trailer for methamphetamine, records of drug transactions, drug paraphernalia and United States currency. Upon executing the warrant later that day, law enforcement officers found, among other items, "four containers of liquids suspected to contain methamphetamine," six bottles of pseudoephedrine pills and other items used in the manufacture of methamphetamine, $3,030 in a locked metal box, and about 30 grams of suspected cannabis. McCarty, 858 N.E.2d at 21-22.

McCarty was ultimately charged with the following three counts:

1. Manufacture of more than 900 grams of a substance containing methamphetamine, in violation of 720 ILCS 570/401(a)(6.5)(D);

2. Possession with intent to manufacture more than 900 grams of a substance containing methamphetamine, in violation of 720 ILCS 570/401(a)(6.5)(D); and

3. Possession with intent to deliver more than 30 grams, but not more than 500 grams, of a substance containing cannabis, in violation of 720 ILCS 550/5(d).

McCarty's pretrial motions to suppress the evidence seized at his trailer and to dismiss the first two counts were denied. McCarty was convicted on all three counts after a bench trial, on stipulated evidence, on May 5, 2003. He did not offer any evidence or file a post-trial motion. McCarty, 858 N.E.2d at 22-23. At sentencing, the court vacated as to the second count as it was a lesser included offense, and sentenced McCarty to 15 years on Count 1 and 5 years on Count 3, to be served concurrently. At sentencing, "the State conceded that it could not prove how much usable methamphetamine defendants produced." McCarty, 858 N.E.2d at 23-24.*fn1

On direct appeal, McCarty argued that (1) the search warrant was unconstitutional; (2) the section under which he was sentenced, 720 ILCS 570/401(a)(6.5), violated the proportionate penalties clause of the Illinois Constitution; (3) the Illinois General Assembly did not intend to include the by-products of producing methamphetamine within the definition of "substance containing methamphetamine" for purposes of the sentencing statute; and (4) his conviction for possession with intent to deliver cannabis should be reduced to simple possession because there was insufficient evidence to prove intent to deliver. People v. McCarty, 826 N.E.2d 957, 960 (Ill.App. 5th Dist. 2005). In March 2005, the Illinois Appellate Court, Fifth District, affirmed the circuit court's conviction and sentence. Doc. 10-9, Exh. E. McCarty filed a petition for leave to appeal, which raised only the third point - whether the Illinois legislature intended to include the byproducts of producing methamphetamine within the definition of "substance containing methamphetamine." Doc. 10-8, Exh. E. In February 2006, McCarty filed a supplemental brief raising the first point - the constitutionality of the search warrant. Doc. 10-15, Exh. H.

The Illinois Supreme Court granted leave to appeal as to both the sentencing issues and the search warrant. In a published opinion, the Supreme Court rejected all of McCarty's points and affirmed his conviction and sentence. People v. McCarty, 858 N.E.2d 15 (Ill. 2006). According to McCarty's habeas petition, he filed two post-conviction petitions in October 2003. Both were denied, and McCarty did not appeal. Doc. 1, pp. 6-8.

On January 16, 2007, McCarty filed a petition for writ of habeas corpus in this United States District Court. In his habeas petition, McCarty raises three grounds: (1) the Illinois legislature did not intend that the mass of by-product be included in the calculation of the amount of substance containing methamphetamine and to do so violated "clearly established Federal law"; (2) the inclusion of by-product for sentencing purposes violated the due process and disproportionate penalties clauses of the Illinois Constitution, and also violated McCarty's Fourteenth Amendment equal protection rights; (3) and the search warrant failed to describe with particularity the place to be searched.

In this federal habeas proceeding, McCarty named as the Respondent the person who at that time was the warden of the prison in which he is confined (Taylorville Correctional Center) -- Greg Sims. Because Sims was replaced by Jerry Buscher as Warden of Taylorville Correctional Center, the Court hereby SUBSTITUTES Buscher for Sims, as ...


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