United States District Court, C.D. Illinois, Rock Island Division
TIMOTHY D. JONES, Petitioner,
UNITED STATES OF AMERICA, Respondent.
DARROW UNITED STATES DISTRICT JUDGE
the Court are Petitioner Jones's amended motion to set
aside his conviction pursuant to 28 U.S.C. § 2255, ECF
No. 8; his motion to request an evidentiary hearing, ECF No.
13; his motion for an order denying the government's
request for an extension of time to respond, ECF No. 15; his
motion requesting summonses, ECF No. 16; and his motion to
expedite the government's response to his § 2255
motion, ECF No. 20. For the following reasons, his motion to
vacate his sentence is DENIED, and all the other motions are
August 5, 2014, Jones was at the Aldi's grocery store in
Silvis, Illinois. A mother of two young girls who was waiting
in the check-out lane with her daughters noticed Jones
recording her children. She confronted him and he left; she
called the police. Some days later, on August 31, 2014, in
response to the incident, police officers approached Jones at
his apartment in East Moline, Illinois. They asked him if
they could check his cellular phone to see if it contained
images of the girls at the store, or other minors. Jones
unlocked his phone and gave it to the officers, who found
records of conversations between Jones and another person in
which Jones had viewed images of female children engaged in
sex acts. When confronted with this material, Jones admitted
to receiving the images.
was charged by federal indictment on December 17, 2014 with
(I) receipt of child pornography, in violation of 18 U.S.C.
§§ 2252A(a)(2)(A) and (b)(1); (II) possession of
child pornography, in violation of 18 U.S.C. §§
2252A(a)(5)(B) and (b)(2); and a forfeiture allegation.
Indictment 1-3, CR ECF No. 1. On April 23, 2015, Jones moved
to suppress the evidence seized from his phone, and the
statements he had made about it. Mot. Suppress 1, CR ECF No.
7. A hearing on the motion was held on May 19, 2015, and the
motion was denied, with the exception of a jurisdictional
issue, which the Court directed Jones's counsel to
address via motion unless it would not be pursued. May 19,
2015 CR Minute Entry. On July 23, 2015, Jones entered a plea
of guilty as to both counts of the indictment and the
forfeiture allegation, Jul. 23, 2015 CR Minute Entry, and on
November 19, 2015 the Court sentenced Jones to 240 months of
incarceration on each count, to be served concurrently, and a
lifetime of supervised release to follow, Nov. 19, 2015 CR
Minute Entry. Judgment entered on November 23, 2015.
Judgment, CR ECF No. 21.
entered a notice of appeal on November 23, 2015, Not. Appeal,
CR ECF No. 24. However, he voluntarily dismissed the appeal
on January 11, 2016. USCA Mandate, CR ECF No. 31.
filed an application to vacate his sentence pursuant to 28
U.S.C. § 2255 on July 21, 2016. ECF No. 1. The Court
granted Jones's motion to amend the application,
resulting in the amended application currently before the
Court, filed on September 8, 2016. Because Jones raised as a
ground for relief from his sentence the ineffectiveness of
his counsel, the Court found that he had waived his
attorney-client privilege as to the relevant communications
with his attorney at the time, George Taseff of the Federal
Public Defender's office, and directed Taseff to submit
an affidavit to the United States Attorney's office
addressing Jones's claims. Nov. 7, 2016 Order 1-4, ECF
No. 17. The government responded to Jones's application
on December 15, 2016. ECF No. 21.
Legal Standard on a Motion to Vacate Sentence Under 28 U.S.C.
U.S.C. § 2255, “the federal prisoner's
substitute for habeas corpus, ” Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012), permits a prisoner
incarcerated pursuant to an Act of Congress to seek that his
sentence be vacated, set aside, or corrected if “the
sentence was imposed in violation of the Constitution or laws
of the United States, or . . . the court was without
jurisdiction to impose such sentence, or . . . the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack[.]” 28 U.S.C.
§ 2255(a). See Webster v. Daniels, 784 F.3d
1123, 1124 (7th Cir. 2015) (“As a rule, the remedy
afforded by section 2255 functions as an effective substitute
for the writ of habeas corpus that it largely
replaced.”). However, “[a] claim cannot be raised
for the first time in a § 2255 motion if it could have
been raised at trial or on direct appeal [and was
not].” McCoy v. United States, 815 F.3d 292,
295 (7th Cir. 2016) (citing Sandoval v. United
States, 574 F.3d 847, 850 (7th Cir.2009)), cert.
denied, 137 S.Ct. 260 (2016). Such procedurally
defaulted claims may only be raised on collateral attack if
an applicant can show good cause for the omission, and that
he was prejudiced thereby. Torzala v. United States,
545 F.3d 517, 522 (7th Cir. 2008).
presented with a § 2255 motion, a district court must
hold an evidentiary hearing on the applicant's claim, and
make findings of fact and conclusions of law. 28 U.S.C.
§ 2255(b). However, “[i]t is well-established that
a district court need not grant an evidentiary hearing in all
§ 2255 cases.” Martin v. United States,
789 F.3d 703, 706 (7th Cir. 2015). The court need not hold a
hearing 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(b).
argues that his conviction should be set aside because his
counsel was ineffective. Am. Pet. 3-4. In support, Jones
makes six principal claims:
1. That counsel failed to make arguments consistent with
United States v. Slaight, 620 F.3d 816 (2010), but
should have because the case was ...