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Jones v. United States

United States District Court, C.D. Illinois, Rock Island Division

June 6, 2017

TIMOTHY D. JONES, Petitioner,



         Before 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 MOOT.


         On 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.

         Jones 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.

         Jones 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.

         Jones 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.


         I. Legal Standard on a Motion to Vacate Sentence Under 28 U.S.C. § 2255

         28 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).

         When 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).

         II. Analysis

         Jones argues that his conviction should be set aside because his counsel was ineffective. Am. Pet. 3-4.[2] 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 ...

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