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Jeremy S. Cary v. United States of America

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION


November 15, 2012

JEREMY S. CARY, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

Friday, 16 November, 2012 09:46:54 AM Clerk, U.S. District Court, ILCD

ORDER & OPINION

This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on November 13, 2012. (Doc. 1). Petitioner was convicted of failure to register as a sex offender in violation of 18 U.S.C. § 2250(a) after a guilty plea, and was sentenced to thirty-three months of incarceration and twenty years of supervised release. (Doc. 1 at 1).

Petitioner raises five grounds to challenge his conviction and sentence: 1) Petitioner received ineffective assistance of counsel based on a failure to argue points Petitioner wanted raised during his sentencing,*fn1 2) his calculated base offense level was "improper and unconstitutional," 3) the Court abused its discretion in setting a supervised release condition limiting Petitioner's use of computers, 4)

Petitioner should have received a downward departure based on family responsibilities, which apparently was not argued during sentencing, and 5) a twenty-year supervised release term is "greater than necessary punishment." (Doc. 1 at 4-14). Pursuant to 28 U.S.C. § 2255 and Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Court has considered the grounds set forth in Petitioner's Motion, and cannot find they are without merit. Therefore, Respondent is ordered to respond to the Motion.

IT IS THEREFORE ORDERED: 1. The Clerk SHALL serve a copy of the Motion (Doc. 1) by certified mail upon Respondent pursuant to Rule 3(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts.

3. Petitioner MAY file a brief with this Court within twenty-one days of the date of this Order stating any additional sentencing arguments his counsel allegedly failed to make in support of his ineffective assistance of counsel claim.

4. Respondent SHALL file an answer, motion, or other responsive pleading within fifty-six days after service of this Order. Respondent should address any facts which would establish whether Petitioner's claims are untimely or procedurally barred. In addition, Respondent should address the merits of Petitioner's constitutional claims and otherwise fully comply with Rule 5 of the Rules Governing Section 2255 Proceedings for the United States District Courts.

5. Petitioner MAY file a reply to Respondent's response within twenty-eight days of being served with the response.

6. Petitioner SHALL serve upon the United States Attorney's office a copy of every further pleading or other document submitted for consideration by the Court.

Joe B. McDade


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