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Peeney v. United States

United States District Court, S.D. Illinois

February 8, 2017

GREGORY P. FEENEY, 08052-025, Petitioner,
v.
UNITED STATES, Respondent.

          MEMORANDUM AND ORDER

          Michael J. Reagan United States District Judge

         I. Introduction

         This matter is now before the Court on Petitioner Gregory Feeney's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) and his supporting memorandum (Doc. 2).[1] The Government opposes Feeney's Petition by seeking enforcement of his collateral appeal waiver given in conjunction with his guilty plea, or, alternatively, the Government contends that Feeney's arguments lack substantive merit (Doc. 12). Feeney filed a timely reply (Doc. 14). In his initial Petition and in his Reply, Feeney sought an evidentiary hearing. However, for the reasons set forth below, the Court hereby DENIES the Petition and the request for an evidentiary hearing.

         II. Facts

         Pursuant to a plea agreement, Feeney pled guilty to a child pornography offense, in violation of 18 U.S.C. § 2252(a)(4)(B). Feeney's plea agreement contained an appeal waiver for direct or collateral appeals (CM/ECF, S.D. Ill., Case No. 08-cr-30228-MJR-DGW, Doc. 31 at 8-9). In pertinent part, the waiver stated

Defendant knowingly and voluntarily waives his right to contest any aspect of his conviction and sentence that could be contested under Title 18 or Title 28, or under any other provision of federal law, except that if the sentence imposed is in excess of the Sentencing Guidelines as determined by the Court (or any applicable statutory minimum, whichever is greater).

(Id.). The waiver also contained an exception for any appeal or collateral challenge based on

1) any subsequent change in the interpretation of law by the United States Supreme Court or the United States Court of Appeals for the Seventh Circuit, which is declared retroactive by those Courts, and which renders the defendant actually innocent of the charges covered herein, and 2) appeals based upon Sentencing Guideline amendments which are made retroactive by the United States Sentencing Commission (see U.S.S.G. 1B1.10).

(Id.). Petitioner Feeney does not contend that he involuntarily made this waiver.

         Following a presentence investigation, and an opportunity for counsel to file sentencing memoranda, Feeney appeared before the undersigned on December 4, 2009, at which time he was sentenced to 114 months in the Bureau of Prisons (“BOP”), to be followed by 15 years of supervised release (Docs. 40, 42). Feeney did not appeal his conviction or sentence.

         Feeney also did not file a petition for habeas corpus within a year of his conviction and sentence becoming final, as is typically required by § 2255(f). Instead, he waited until December 30, 2013, to file his § 2255 petition, in reliance on the Supreme Court's decision in Peugh v. United States, 133 S.Ct. 2072 (2013). Unquestionably, his Petition was filed within a year of Peugh being decided.

         In his Petition, Feeney contends that he was sentenced in violation of the Ex Post Facto clause because the 2008 Guidelines Manual was used to calculate his sentence range, despite the fact that the offense conduct occurred in 2006 (Id. at 5-6). Additionally, he contends that his trial counsel was ineffective for failing to preserve an Ex Post Facto challenge to his sentence (Id. at 6-9). Feeney alleges that as a result of the ineffective assistance of counsel, he entered into the plea agreement, which he might not have agreed to had he known about the need to preserve an Ex Post Facto challenge (Id. at 9-10). According to Feeney, the net harm of these errors is that his sentencing range may have been inaccurate, and a potential sentencing reduction was not considered in reaching his ultimate sentence (Id. at 16-19).

         III. Legal Analysis

         Typically, a Section 2255 petition must be lodged within one year of the petitioner's conviction and sentence becoming final. 28 U.S.C. § 2255(f)(1). However, there are a number of exceptions, such as, Section 2255(f)(3) allowing for an extended one year period to file from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” In addition to the one year limitations period for filing a petition, there is also a standard requirement that in order to bring a constitutional claim on collateral appeal, the petitioner must also have raised that claim on direct appeal. See Massaro v. United States,538 U.S. 500, 504 (2003). Despite this general requirement, defendants are not required to raise ineffective assistance of counsel claims on direct appeal in order to preserve them for collateral appeal purposes. Id. Additionally, this requirement may be excused if the petitioner can demonstrate good cause for the failure to raise the claims on direct appeal and ...


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