GARY E. PEEL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
WILLIAM D. STIEHL, District Judge.
Petitioner Gary E. Peel is serving a 12-year sentence for bankruptcy fraud and possession of child pornography. He now moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 12). The Government has responded (Doc. 22), and petitioner has replied (Doc. 25). Petitioner also moves for summary judgment on his claims (Doc. 30), and the Government has responded (Doc. 31) and he has replied (Doc. 34). In addition, petitioner moves to expedite the entry of orders (Doc. 35).
The Seventh Circuit Court of Appeals related the facts of petitioner's criminal case as follows:
The events giving rise to this case go back a long way. In 1967 the defendant married. Seven years later he began an affair with his wife's [Deborah J. Peel's] 16-year-old sister [Donna Rodgers]. In the course of the affair, which lasted several months, he took nude photographs of her.... In response to her later request for the pictures, he gave her some of them... and, without telling her, retained others in a file in his office.
In June 2003 the Peels divorced, and agreed to a marital settlement. The following year [the defendant] filed suit in an Illinois state court to vacate the settlement. The year after that he filed for bankruptcy and asked the bankruptcy court to discharge the financial obligations to his ex-wife that the settlement agreement had imposed. She opposed the discharge and filed a claim for the money that he owed her under the settlement.... [H]is debt to her under the settlement probably was not dischargeable in bankruptcy under the Bankruptcy Code as it then read. (Under the current Code, it almost certainly would not be dischargeable.) So he had to persuade her to drop the claim.
Negotiations looking to compromise it were predictably acrimonious and in the course of them the defendant told her about the nude photographs of her sister and said that "these would be... an item that would likely get out into the public if we didn't stop this escalating battle of putting things in the newspaper." He backed up his threat by placing photocopies of the photographs in her mailbox. She complained to the police and later to federal authorities, and at their direction made recorded phone calls to the defendant. The conversations confirmed that he was blackmailing her with the photographs. He faxed her a draft of a settlement agreement that she had previously rejected, adding a provision requiring him to return certain unidentified photographs to her. They met and he showed her the originals. The meeting was recorded, and included an exchange in which she said: "So you resort to blackmailing me?" He replied: "There's nothing left. I'm down to: no kids; no grand-kids; no money." "And, so, " she responded, "blackmailing me with photographs.... Okay, but as long as I go ahead and sign these settlement agreements." He replied: "Right then you have...." And she: "... you'll give me the photographs...." And he: "On the spot."
United States v. Peel, 595 F.3d 763, 765-66 (7th Cir. 2010) (internal citations omitted).
A jury convicted petitioner for bankruptcy fraud, 18 U.S.C. § 152(6), obstruction of justice, 18 U.S.C. § 1512(c)(2), and possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B) (Doc. 183, No. 06-CR-30049-WDS). On appeal, the Seventh Circuit reversed in part and remanded for resentencing. See United States v. Peel, 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 to 144 months in prison (consecutive sentences of 24 months for bankruptcy fraud and 120 months for possession of child pornography). The Seventh Circuit affirmed. See United States v. Peel, 668 F.3d 506 (7th Cir. 2012). Petitioner now brings 16 grounds for relief in his amended § 2255 motion, all based on ineffective assistance of counsel.
"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States... may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." § 2255(b).
Under the Sixth Amendment, a criminal defendant is guaranteed the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); United States v. Recendiz, 557 F.3d 511, 531 (7th Cir. 2009). He is not entitled to "the best available counsel or the most prudent strategies." Kokoraleis v. Gilmore, 131 F.3d 692, 696 (7th Cir. 1997). The right to effective assistance of counsel is satisfied if counsel "chooses a professionally competent strategy that secures for the accused the benefit of an adversarial trial." Id. To establish ineffective assistance of counsel, the defendant must show both that his counsel's performance was deficient and that it prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Swanson v. United States, 692 F.3d 708, 714 (7th Cir. 2012).
The proper standard of counsel's performance is that of "reasonably effective assistance, " which means the defendant, to prevail, must show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. Moreover, counsel's performance must be evaluated considering all the circumstances, "on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 688, 690. The court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). The reasonableness standard is not meant "to second-guess counsel's strategic decisions." Recendiz, 557 F.3d at 531; accord United States v. Zarnes, 33 F.3d 1454, 1473 (7th Cir. 1994) ("This court will not second-guess trial tactics that are rationally-based.").
To establish prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In making this determination, the court must consider "the totality of the evidence before the judge or jury." Id. at 695.
It is "a heavy burden" to prove ineffective assistance of counsel. Shell v. United States, 448 F.3d 951, 955 (7th Cir. 2006); accord United States v. Fleming, 676 F.3d 621, 625 (7th Cir. 2012) (To prove both deficient performance and prejudice "is not easy, because courts must presume that counsel is effective."). The defendant "has an obligation to show us why his counsel was ineffective.... Speculation based on hindsight is insufficient to make this showing." George v. Smith, 586 F.3d 479, 486 (7th Cir. 2009).
Upon review of petitioner's motion and the files and records of the case, the Court finds that they conclusively show that petitioner is entitled to no relief. An evidentiary hearing is unnecessary. See § 2255(b); Menzer v. United States, 200 F.3d 1000, 1006 (7th Cir. 2000).
Petitioner makes three related arguments that his attorneys' failure to raise certain constitutional arguments on his behalf constituted ineffective assistance of counsel. He first argues that his prosecution for child pornography under 18 U.S.C. § 2252A(5)(B) violated the Due Process Clause of the Fifth Amendment because he did not have fair notice that his actions were criminal. He says the Government cannot hold him criminally responsible for conduct that he could not reasonably have understood to be illegal. For him, numerous factors suggested the "legitimacy and noncriminal nature" of his possession of the nude photographs of Donna Rodgers. For instance, he says when he took the pictures in 1974, his sexual activity with Rodgers was legal because it was consensual and the age of consent in Illinois was 16; there was no Illinois law establishing an age other than 16 to consent to being photographed nude; and there was no child-pornography statute.
Petitioner makes a second due-process argument that depends entirely on his assertion that his sexual activity with Rodgers was legal. He says they were both adults in 1974, old enough to engage in sexual activity, and could "consent to memorializing said conduct through photography." Therefore, he says, applying the child-pornography statute to him did not accomplish its legislative purpose of protecting children from sexual exploitation and abuse.
Petitioner's third due-process argument is that he and Rodgers were consenting adults, the photographs were not an integral part of conduct in violation of a valid criminal statute, and so it violated due process to deprive him of his First Amendment rights.
Except for the third argument, petitioner does not cite any law supporting his due-process claims. At most, he cites cases elsewhere in his brief in which courts found attorneys ineffective for failing to raise constitutional issues in general. Those cases do not apply here. Pro se parties are generally afforded leeway in their pleadings, but they still need to support their arguments. And, in this instance, petitioner was an attorney. Accordingly, he waives his first two due-process claims by failing to support them. See Argyropoulos v. City of Alton, 539 F.3d 724, 739 (7th Cir. 2008); Kramer v. Banc of Am. Secs., LLC, 355 F.3d 961, 964 n. 1 (7th Cir. 2004); Smith v. Ne. Ill. Univ., 388 F.3d 559, 569 (7th Cir. 2004); United States v. Jones, 224 F.3d 621, 626 ...