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Price v. United States

United States District Court, C.D. Illinois, Springfield Division

September 7, 2017

JEFFREY PRICE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          SUE E. MYERSCOUGH, UNITED STATES DISTRICT JUDGE.

         Petitioner Jeffrey Price has filed an Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 16). After reviewing the entire record in the case, the Court finds no need for an evidentiary hearing because any factual matters may be resolved based on the record before the Court.

         The Motion is DENIED. All of Petitioner's claims, with the exception of the ineffective assistance of counsel claims, are procedurally defaulted. Petitioner is not entitled to relief on his ineffective assistance of counsel claims because he can show neither deficient performance nor prejudice. Finally, even if Petitioner's remaining claims were not procedurally defaulted, Petitioner is not entitled to relief.

         I. BACKGROUND

         Petitioner took sexually explicit photographs of his daughter R.P. when she was between the ages of 10 and 12. He put some of the photographs on the internet. Petitioner also had stored on his computers a large amount of child pornography depicting other children.

         Petitioner was originally charged in October 2009 and was detained throughout the case. United States v. Price, Central District of Illinois Case No. 09-30107 (Crim.). The Second Superseding Indictment (Crim., d/e 76) charged him with Use of a Minor to Produce Child Pornography in violation of 18 U.S.C. § 2251(a) and (e) and Possession of Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The Court appointed several attorneys to represent Petitioner over the course of the proceedings. Petitioner ultimately elected to proceed pro se with standby counsel shortly before trial.

         In November 2011, after a four-day trial, a jury found Petitioner guilty of producing child pornography and of possessing child pornography. By special verdict, the jury found that five of the photographs of R.P. depicted sexually explicit conduct. See Crim., Jury Verdict (d/e 159, 4 of 8); Tr. at 971 (d/e 205).

         With Petitioner's agreement, the Court appointed counsel to represent Petitioner at sentencing. In March 2012, this Court sentenced Petitioner to 18 years' imprisonment on the production count and a concurrent 6-year term of imprisonment on the possession count. The Court also sentenced Petitioner to a lifetime term of supervised release and imposed the $200 mandatory special assessment.

         Petitioner appealed and was appointed counsel on appeal. On appeal, Petitioner challenged the denial of his motion to suppress and the jury instruction on lascivious exhibition. The Government filed a cross-appeal arguing that Petitioner's 18-year sentence, less than half of the 40-year Guideline sentence, was substantively unreasonable. On December 5, 2014, the Seventh Circuit affirmed. United State v. Price, 775 F.3d 828 (7th Cir. 2014).

         Neither Petitioner nor the Government sought further review. Therefore, Petitioner's conviction became final on March 5, 2015. Clay v. United States, 537 U.S. 522, 525 (2003) (a judgment for conviction becomes final when the 90-day period for filing a petition for certiorari expires).

         On December 7, 2015, Petitioner timely filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1). The Court directed Respondent United States of America to file an answer, motion, or other response. Respondent filed a response seeking to dismiss several claims for failure to state a claim, arguing that the claims were perfunctory and unsupported by facts or arguments, arguing that several claims were procedurally defaulted, and addressing some of the claims on the merits. Resp. (d/e 3). Petitioner filed a reply (d/e 4), asserting that he previously requested transcripts but the request was denied. Petitioner also sought to reserve all other issues for discussion with court-appointed counsel.

         On June 23, 2016, this Court entered an Order denying what the Court construed as Petitioner's request for counsel. Order at 2 (d/e 6). As for the sufficiency of Petitioner's Motion, the Court found that a few of Petitioner's claims contained sufficient facts and argument to permit the Court to review them but that the majority of the claims did not state supporting facts. Id. at 2-3. Because the deficiencies in Petitioner's Motion might be corrected if Petitioner had access to the transcripts, the Court directed the Clerk to send the existing transcripts to the Warden of the Federal Correctional Institution in Milan, Michigan. Id. at 3. The Court directed the Warden to maintain custody and control of the documents but to allow Petitioner reasonable access to the transcripts under the direct supervision of a prison official. Id. at 3-4. The Court also granted Petitioner leave to file an amended § 2255 Motion. Id. at 4. In August 2016, the Court granted Petitioner's request for one additional transcript. August 4, 2016 Text Order.

         On January 17, 2017, after several extensions of time, Petitioner filed his Amended § 2255 Petition (d/e 16). The Amended Petition lists four grounds, followed by a list of individual claims:

GROUND ONE: Abuse of Discretion
1. Court denied use of Exculpatory Evidence by Defendant
2. Court allowed false testimony on behalf of Government
3. Denied rights pursuant to 18 USC 3142
4. Defendant compelled to proceed pro se
5. Court denied Defendant's rights under 18 USC 3161
6. Jury not fully informed by trial court Judge
7. Prejudicial Error and Bias
GROUND TWO: Ineffective Assistance of Counsel
1. Robert Scherschligt
2. Ron Stone
3. James Elmore
4. Jon Noll & Daniel Noll 5. Joshua Press, Evan Brennan, Jennifer Madden (Appellate)
GROUND THREE: Fraud on the Court
1. Fraudulently dated Federal Court documents
a. Magistrate Judge Byron Cudmore
b. Special Agent Bowers
c. Special Agent Michael Mitchell
d. Springfield Police Detective Paula Morrow
GROUND FOUR: Violation of Rights
1. Violation of Constitution of the United States
2. Violation of Rights pursuant to United States Code cited throughout attachments.

         Am. Mot. at 4-8 (d/e 16). Petitioner attached to the Motion his argument and supporting material.

         On April 7, 2017, Respondent filed its Response (d/e 20) to the Motion. On May 11, 2017, Petitioner filed his Reply (d/e 21).

         II. ANALYSIS

         A person convicted of a federal crime may move to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Relief under § 2555 is an extraordinary remedy because a § 2255 petitioner has already had “an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Post-conviction relief under Section 2255 is therefore “appropriate only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (internal quotation marks and citation omitted). In considering a Section 2255 motion, the Court reviews the evidence and inferences drawn from the evidence in the light most favorable to the Government. Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992).

         A. All of Petitioner's Claims, With the Exception of the Ineffective Assistance of Counsel ...


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