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Gary E. Peel v. United States of America

May 9, 2012

GARY E. PEEL, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



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

MEMORANDUM & ORDER

Petitioner Gary E. Peel was convicted after a jury trial in this Court of bankruptcy fraud, obstruction of justice, and possession of child pornography (Doc. 183, Case No. 06-CR-30049-WDS). On appeal, the Seventh Circuit reversed in part and remanded for resentencing. See United States v. Peel (Peel I), 595 F.3d 763 (7th Cir. 2010), cert. denied, 131

S. Ct. 994 (2011). On remand, this Court dismissed the obstruction-of-justice conviction, recalculated the intended loss, redetermined the guidelines sentencing range, and resentenced petitioner, under 18 U.S.C. § 3553(a), to 144 months in prison (consecutive sentences of 24 months for bankruptcy fraud and 120 months for possession of child pornography*fn1 ). The Seventh Circuit affirmed. See United States v. Peel (Peel II), 668 F.3d 506 (7th Cir. 2012). Petitioner has now filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 (Doc. 1) and a motion to disqualify the undersigned district judge from participating in all proceedings involved (Doc. 2).*fn2 The Court now addresses the motion to disqualify.

I.ARGUMENTS

Generally, the judge who conducted a defendant's trial and imposed the sentence will also examine any motion under § 2255. Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts. The Advisory Committee Notes to Rule 4, however, state: "There is a procedure by which the movant can have a judge other than the trial judge decide his motion . . He can file an affidavit alleging bias in order to dis-qualify the trial judge." An affidavit is included here with petitioner's motion, arguing that the undersigned judge should be disqualified because he has pre-judged the merits of petitioner's motion under § 2255 or demonstrated personal bias or prejudice against petitioner. As a result of the alleged bias, petitioner believes it will be difficult "if not impossible" for the judge to objectively conduct a preliminary review or evidentiary hearing on petitioner's § 2255 motion.

Petitioner believes his trial counsel should have raised a statutory affirmative defense and certain constitutional challenges on his behalf, among other deficiencies. So, after the jury convicted him, he wanted to file a § 2255 motion arguing ineffective assistance of counsel. Petitioner now complains that, during the hearing to discuss that motion, the judge "sua sponte volunteered his opinion" that petitioner's trial counsel "were performing a credible job in representing [petitioner's] interests."*fn3

Petitioner also makes several claims premised on the assertion that his former sister-in-law, who was sixteen when he had an affair with her and took nude photographs of her in 1974, was legally an adult at the time.*fn4 He argues that the judge took judicial notice that petitioner's affair was legal at the time, yet directed the jury to disregard that fact. He further argues that his sister-in-law's being an adult should have justified a downward de-parture in his sentence. Petitioner also faults this judge for allowing the sister-in-law to submit victim-impact statements at both sentencings. He adds that the sentence imposed on him was "disproportionately greater" than sentences imposed on defendants in child-pornography cases who had used actual children at the time of production. Finally, petitioner believes the congressional justification for the child-pornography statute, 18 U.S.C. § 2252A-to protect children from abuse and exploitation-does not apply to him and, consequently, the judge should have given him a downward departure in his sentence. With respect to the above arguments, the Court notes in passing that petitioner has already argued on appeal that the photographs he took were not illegal when they were made and that the child-pornography statute should not apply to him. Nonetheless, his convictions were upheld, see Peel I, 595 F.3d at 769--71, and the Supreme Court denied a petition for writ of certiorari, see Peel v. United States, 131 S. Ct. 994 (2011).

Other claims pertain to sentencing errors. He alleges that, at his first sentencing, the judge used a method to determine "retail value" that had not been approved by the U.S. Sentencing Guidelines, statute, or case law, and increased petitioner's offense level more than the 5-level maximum under U.S.S.G. § 2G2.2(b)(3)(A).*fn5 He alleges that the judge enhanced his sentence based on judicial findings that petitioner had distributed child pornography*fn6 and used special skills, even though those facts had not been established either by the jury, the indictment, a guilty plea, or a prior conviction. At the second sentencing, he alleges, the judge changed petitioner's sentences to run consecutively instead of concurrently, even though one count had been dismissed and the pecuniary-gain enhancement had since been lowered to less than $1,000,000.*fn7 Finally, in petitioner's first sentencing, the judge did not recommend a camp for correctional placement; this, petitioner contends, caused the Bureau of Prisons to disregard the judge's camp recommendation in the second sentencing.

Petitioner asserts an evidentiary error as well. He claims the judge permitted a witness to testify under the business-records exception to hearsay, over petitioner's objection, even though the witness had no personal knowledge, was not the custodian of records (and no records were offered), was not tendered as an expert, and even though the business-records exception only applies to documentary evidence, not testimonial.

Petitioner believes evidence of bias is shown by the judge's order on December 7, 2011, which dismissed petitioner's previous § 2255 motion to disqualify despite the restrictions of 28 U.S.C. § 144 and the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts (Doc. 6, Case No. 11-CV-660-WDS).

Lastly, petitioner says he has filed two complaints of misconduct against this judge, one with the Southern District of Illinois and one with the Judicial Council of the Seventh Circuit. He contends that the mere act of filing these complaints gives the judge motivation to demonstrate bias and prejudice in adverse rulings on petitioner's § 2255 motion.

II.DISCUSSION

Two main federal statutes govern recusal. The first statute, 28 U.S.C. § 144, permits a party to move for the judge's recusal:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge be-fore whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no ...


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