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Stacy v. United States

United States District Court, S.D. Illinois

October 25, 2016

MARTY C. STACY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

         This matter comes before the Court on petitioner Marty Stacy's Motion (Doc. 1) to Vacate, Set Aside or Correct his sentence pursuant to 28 U.S.C. § 2255. The government filed a timely response (Doc. 11) and the petitioner filed a reply (Doc. 14). Petitioner also filed an amendment (Doc. 2) and an amended Ground Nine (Doc. 5). For the following reasons, Petitioner's motion is denied.

         1. Background.

         On June 25, 2013, Marty C. Stacy was found guilty at trial of four counts of possession of pseudoephedrine knowing it would be used to manufacture methamphetamine and one count of conspiracy to manufacture methamphetamine. He was sentence on November 1, 2013, to a term of imprisonment of 336 months on the conspiracy charge and 240 months on each of the possession charges - all counts to run concurrent with each other. He was further sentenced to eight years of supervised release, a fine of $250.00, and a special assessment of $500.00. See United States v. Stacy, 12-cr-40094, Docs. 90 & 110.

         Petitioner appealed his conviction and sentence which were affirmed by the United States Court of Appeals for the Seventh Circuit on October 20, 2014. He then filed a petition for en banc rehearing which was denied on December 24, 2014. See United States of America v. Stacy, 769 F.2d 969 (7th Cir. 2014).

         He now brings this 28 U.S.C. § 2255 petition alleging the following issues:

1. Relevant conduct and unjust sentence in that the original indictment gave a time frame of 8-14-2010 to 5-30-2012 and the superseding indictment had four specific dates. As he was found guilty of the charges in the superseding indictment, the amount of pseudoephedrine should have been limited to those specific four days.
2. Ineffective assistance of appellate counsel, prosecutorial misconduct, in that his counsel did not strike juror Gordon even though the Judge acknowledged and notified the parties that he knew juror Gordon and appellate counsel refused to raise issue on appeal.
3. Prosecutorial misconduct, plain error, in that the Prosecutor's closing arguments included instructions as to reasonable doubt.
4. Denial of due process, in that opening and closing arguments were not included in the transcripts for the record of appeal.
5. Ineffective assistance of counsel against Burton H. Shostak for failing to pursue a speedy trial resulting in the government filing a superseding indictment.
6. Ineffective assistance of counsel against Ronald E. Jenkins for actions pretrial and at trial.
7. Ineffective assistance of counsel against Peter Henderson, appellate counsel, for failing to raise the issues Petitioner requested be raised on appeal and proceeding with an appeal without a complete transcript.
8. Ineffective assistance of counsel against Ronald E. Jenkins for failing to raise a chain of custody issue in the Motion to Suppress Evidence.
9. Ineffective assistance of counsel against Ronald E. Jenkins for failing to withdraw as counsel after Petitioner requested him to withdraw.

         The Petitioner's Amendment was filed four days prior to this Court's Memorandum and Order (Doc. 3) and Petitioner's Amended Ground Nine was filed approximately two weeks after the Memorandum and Order. The Memorandum and Order directed the parties to refer to the claims as outlined in the memorandum. However, in these additional documents, petitioner identified a new Ground Nine - Inadmissible evidence denying the right to a fair trial, confrontation, and due process. As such, Ground Nine as identified in the Court's Memorandum is different from the Ground Nine identified by the petitioner. Therefore, the relevant portions of the Amendment Ground Nine have been address within the appropriate areas of the issues identified in the Court's Memorandum and Order.

         2. ...


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