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Rory Tucker v. United States of America

June 10, 2011

RORY TUCKER, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT,



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

E-FILED

Friday, 10 June, 2011 03:47:21 PM

Clerk, U.S. District Court, ILCD

OPINION

On June 21, 2010, Petitioner, Rory Tucker, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (#1). On July 21, 2010, the Government filed its Response to Petitioner's Motion (#3). In its Response, the Government noted that Petitioner raised a number of claims of ineffective assistance of counsel, namely, that his trial counsel: (1) failed to renew a motion for severance; (2) failed to seek a psychiatric examination; (3) failed to investigate or prepare for trial, and challenge the racial composition of the jury; and (4) failed to interview or investigate government witnesses. The Government argued that Petitioner's one sentence claims were not sufficient to enable the Government to properly respond or to enable this court to conduct a "threshold evaluation" of the motion. The Government requested that this court direct Petitioner to supplement his motion with a specific affidavit in support of his claims. The Government further requested that, once Petitioner supplemented his motion, the Government be allowed to file a timely Supplemental Response.

Based upon Kafo v. United States, 467 F.3d 1070 (7th Cir. 2006), this court concluded that it was appropriate to grant the Government's request and give Petitioner the opportunity to supplement his bare bones claims by submitting a more detailed version of the claims in a Supplemental Motion, filed under oath, or by submitting affidavits in support of his claims.

On October 20, 2010, this court entered an Order (#6) which directed Petitioner to file a supplement to his pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (#1) within 60 days from the date of the Order. Petitioner was directed to supplement his claims by submitting a more detailed version of the claims in a Supplemental Motion, filed under oath, or by submitting affidavits in support of his claims. This court further ordered that the Government's Supplemental response to Petitioner's Motion was due 30 days after the filing of Petitioner's supplement to his Motion. In addition, Petitioner's Motion for the Appointment of Counsel (#4) was denied by this court's Order (#6).

The 60 day period has since expired starting from this court's Order (#6), and Petitioner did not file a supplement to his Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (#1). On January 7, 2011, this court therefore entered an Order (#7) which advised that the Government may "appropriately argue in its response that Petitioner's Motion does not include sufficient facts to allow this court to award any relief."

On February 7, 2011 the Government filed a Supplemental Response to Petitioner's Motion Under 28 U.S.C. § 2255 (#8). This court has carefully considered the arguments raised by the parties and the record in this case. Following this careful and thorough review, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (#1) is DENIED.

FACTS

On May 5, 2006, in Case no. 06-20032, a grand jury in the Central District of Illinois charged eight persons, including Petitioner Rory Tucker, in a 10-count indictment with various offenses arising from a series of armed robberies. Petitioner was charged with conspiracy to commit robberies and to carry firearms during crimes of violence in violation of 18 U.S.C. § 371 (Count 1); one count of armed bank robbery in violation of 18 U.S.C. § 2113 (a) and (d) (Count8); and one count of carrying and using a firearm in connection with the armed robbery charged in Count 8 in violation of 18 U.S.C. § 924(c) (Count 9). The charges and facts of the case are set forth in more detail in the court of appeals opinion on direct appeal in United States v. Williams, 553 F.3d 1073 (7th Cir.2009).

Following a 10-day trial, the jury found Petitioner and his co-defendants guilty on all counts in which they were charged. On March 12, 2007, this court sentenced Petitioner to 221 months imprisonment. This term consisted of 60 months on Count 1, 137 months on Count 8, both to run concurrently, and 84 months on Count 9, to run consecutively to Counts 1 and 8.

On January 27, 2009, the Seventh Circuit affirmed Petitioner's conviction and sentence. United States v. Williams, 553 F.3d 1073 (7th Cir. 2009), cert. denied 129 S. Ct. 2452 (May 26, 2009). The Seventh Circuit rejected Petitioner's claims of improper joinder, improper denial of severance, and insufficiency of the evidence.

On June 21, 2010, Petitioner filed the instant motion under 28 U.S.C. ยง 2255, although his motion indicates ...


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