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Jerry L. Vinyard v. United States of America

May 16, 2013

JERRY L. VINYARD, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: William D. Stiehl_ District Judge

MEMORANDUM & ORDER

STIEHL, District Judge:

Before the Court are the following motions filed by the petitioner: petitioner's motion for hearing and for bond (Doc. 6); motion for summary judgment and motion for status (Doc. 8), to which the government filed a response (Doc. 9); petitioner's additional requests for hearing (Docs. 10, 14, 15); motion for supplemental authority (Doc. 12); motions for status (Docs. 11, 13, 14, 17); motion to expand the record and request for status (Doc. 15); and motion to appoint counsel (Doc. 16).

BACKGROUND

A brief overview of the facts is in order before ruling on the motions noted above, due to the uniqueness of this case. On November 7, 2006, petitioner pleaded guilty, in an open plea, to conspiring to manufacture, distribute, and possess with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § § 841(a)(1) and 846. Based on this charge, petitioner faced a statutory term of imprisonment of 10 years to life. Additionally, prior to petitioner's plea, the government filed an Information pursuant to 21 U.S.C. § 851 to establish petitioner's prior felony drug conviction for Unlawful Delivery of a Controlled Substance, which increased the mandatory minimum term of imprisonment applicable to petitioner to 20 years. At the time of his guilty plea, petitioner signed a written Stipulation of Facts, admitting, inter alia, that the amount of methamphetamine involved in the charged conspiracy was in excess of 500 grams. At his change of plea hearing, petitioner was advised by the Court that the § 851 Information regarding his prior drug conviction had been filed and that a mandatory minimum sentence of 20 years would apply to him at sentencing. Plea Trans. at 5-6. Vinyard stated, at the change of plea hearing, that he understood this. Id.

The Seventh Circuit explained the subsequent events as follows:

At sentencing on May 3, 2007, no one had any objections to the presentence report (PSR), which recommended a guideline range of 235-293 months' imprisonment, based on a finding that Vinyard was involved with 36.5 kilograms of methamphetamine and had possessed a firearm during the offense. Before imposing the sentence, the district court agreed to allow Vinyard's wife to address the court. She spoke for some time, emphasizing the effect that a long sentence would have on their 11-year-old daughter. After his wife spoke, Vinyard for the first time questioned some of the facts in the PSR having to do with amounts of anhydrous ammonia involved in the crime. The district court asked him if he was objecting to the PSR. Vinyard waffled, seeming to say yes, but noting that he was not acting on the advice of counsel, who was concerned about Vinyard's jeopardizing his three-level reduction for acceptance of responsibility and other benefits he was expecting. After a brief recess, Vinyard withdrew any objections, and the district court sentenced him to the mandatory minimum of 240 months.

At this point, the district court appears to have had second thoughts. The next day, May 4, without giving any notice to the Government, he ordered Vinyard's release. This caused problems because the order was not filed until May 7; the Government learned of Vinyard's release only when an agent happened to see him walking into the Probation Office. The Government immediately filed a notice of appeal of the release order on May 7 (No. 07-2058), and on May 10 it filed a motion to reverse and vacate the release order. That same day (May 10), this court entered an order requiring Vinyard to be detained. The district court responded hours later by sua sponte vacating Vinyard's plea and sentence, ordering new appointed counsel, vacating its release order, and ordering Vinyard to self-report the next day. This court issued another order reiterating the immediate detention order. The Government filed an appeal of the May 10 order vacating the plea and sentence (No. 07-2304). The appeal of the release order was dismissed on the ground that it had become moot.

Along with its appeal of the vacatur, the Government filed a motion to stay the proceedings with both the district court and the circuit on June 5. On June 13, one day before the next scheduled status hearing, the district court granted the motion to stay and amplified on its reasons for vacating the plea and sentence. On July 17, the Government filed a petition for a writ of mandamus to compel the district court to reinstate the sentence it had pronounced.

United States v. Vinyard, 539 F.3d 589, 590-591 (7th Cir. 2008). The Seventh Circuit granted the petition for writ of mandamus, vacated the May 10 vacatur of the plea and sentence and directed that judgment be entered pursuant to the May 3, 2007 sentence. Id. at 595. On remand, petitioner filed a motion to withdraw his guilty plea, which this Court denied. On June 5, 2009, petitioner was sentenced to 240 months imprisonment, ten years supervised release, a fine of $250, and a special assessment of $100. Petitioner did not file a direct appeal.

Petitioner has filed a motion pursuant to 28 U.S.C. § 2255, alleging that each of his appointed attorneys*fn1 was constitutionally ineffective in a number of different ways. The Court is not ruling on the merits of the § 2255 motion itself, at this time, but only the related motions filed by petitioner.

I.Motions for Hearing

An evidentiary hearing on a § 2255 petition is not required if the "motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; see also Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001); Daniels v. United States, 54 F.3d 290, 293. The Court has not determined that a hearing is required at this point, but may require one at a later date. Should the Court determine that a hearing is necessary, it will set a hearing and the petitioner will be duly ...


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