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Jessica N. Childers v. United States of America

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


November 16, 2012

JESSICA N. CHILDERS, PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT. JESSICA N. CHILDERS, PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.,

Criminal No 11-cr-40067-JPG Criminal No 11-cr-40067-JPG

The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on petitioner Jessica N. Childers' two motions to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255. The motions were filed as separate cases, but the Court believes they constitute two iterations of a single petition.

Accordingly, the Court DIRECTS the Clerk of Court to file the § 2255 petition in Case No. 12-cv-666-JPG (Doc. 1) as a supplement to the § 2255 petition in Case No. 12-cv-648-JPG (Doc. 1) and to close Case No. 12-cv-666-JPG. All further filings shall be made in Case No. 12-cv-648-JPG. The Court now reviews the petition and its supplement pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings.

On August 11, 2011, Childers waived indictment and pled guilty pursuant to a written plea agreement to an information alleging one count of conspiracy to submit false, fictitious and fraudulent claims to the United States in violation of 18 U.S.C. § 286 (Count 1), one count of receiving money stolen from the United States in violation of 18 U.S.C. § 641 (Count 2), and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) and (c)(1) (Count 3).

On January 13, 2012, the Court sentenced Childers to serve 84 months in prison on Counts 1 and 2 and to serve 24 months on Count 3 to run consecutive to the term for Counts 1 and 2, for a total sentence of 108 months in prison. The petitioner did not appeal her sentence.

On May 21, 2012, the petitioner filed a § 2255 motion, and on May 29, 2012, she filed the supplement. The Court has reviewed the two filings and identifies the following claims:

1. Childers' plea was involuntary because she was unable to understand what she was doing because she was on psychiatric drugs at the time of the plea;

2. Counsel for the plea was ineffective in the following ways, which rendered Childers' guilty plea involuntary:

a. failing to explain the plea agreement to Childers prior to the plea, including the waiver of appeal rights; and

b. failing to give Childers a reasonably accurate estimate of her likely sentence prior to the plea, including the total likely term of imprisonment, the 2-year consecutive term for Count 3, and the location she would likely serve her term of imprisonment;

3. Counsel for the plea was ineffective in failing to ask the presiding judge to recuse himself; and

4. Childers' conviction was obtained in violation of her right against self-incrimination and her right to counsel because she was not given Miranda warnings before she spoke with law enforcement agents and because she was not given her medication during the interview.

The Court ORDERS the Government to file a response to the petitioner's § 2255 motion

and its supplement, using the designations set forth above, within THIRTY DAYS of the date of this order. The Government shall, as part of its response, attach all relevant portions of the record in the underlying criminal case.

IT IS SO ORDERED.

J. Phil Gilbert

20121116

© 1992-2012 VersusLaw Inc.



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