United States District Court, C.D. Illinois, Peoria Division
JEREMY S. CARY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER & OPINION
BILLY McDADE United States Senior District Judge.
matter is before the Court on a Motion for Release on Bond
Pending Resolution of Petitioner's § 2255 Motion
filed by Jeremy Cary. (Doc. 5). For the reasons stated below,
the motion is DENIED.
2009, Petitioner Jeremy Cary was convicted in Illinois of
Aggravated Criminal Sexual Abuse. He was sentenced to thirty
months' probation. By reason of his conviction, Cary was
required to register as a sex offender under the Sex Offender
Registration and Notification Act (“SORNA”), Pub.
L. No. 109-248. On April 29, 2011, the United States indicted
Cary for knowingly failing to register as a sex offender in
violation of 18 U.S.C. § 2250(a). United States v.
Cary, 11-cr-10054 (C.D. Ill. 2011). On August 3, 2011,
Cary entered a plea of guilty to that charge and he was
sentenced to 33 months imprisonment and 20 years supervised
release. Id. (Doc. 18). As is typical in cases like
Cary's, standard and special conditions of supervised
release were also imposed on Cary.
procedural history in this case since the April 2011
indictment is extensive and the Court will only briefly
describe same for purposes of brevity. From 2013 to present,
the Government has filed four separate Petitions for
Revocation, and a Supplemental Petition for Revocation,
alleging that Cary has violated various conditions of his
supervised release and/or has failed to register as a sex
offender under SORNA. United States v. Cary,
11-cr-10054 (C.D. Ill. 2011) (Docs. 33, 66, 99, 119, 171).
After a hearing on each petition, Cary admitted to violating,
or was found to have violated, a condition or conditions of
his supervised release. Each time he was sentenced to a term
of imprisonment with the BOP and usually a term of supervised
release with special or standard conditions of supervised
successfully challenged this Court's first judgment of
revocation via § 2255 after this Court determined that
Cary's trial counsel provided ineffective assistance by
failing to object to an improper Sentencing Guidelines
calculation in Cary's Pre-Sentence Investigation Report
which resulted in a higher sentence. Cary v. United
States, 12-cv-1469 (C.D. Ill. 2013) (Doc. 20). Thus, on
April 30, 2013, the Court entered an amended judgment
immediately releasing Cary on time served and reducing the
term of his supervised release to ten years with standard and
special conditions. United States v. Cary,
11-cr-10054 (C.D. Ill. 2011) (Doc. 31).
successfully challenged this Court's second judgment of
revocation via § 2255 after this Court found that
Cary's trial counsel was ineffective for failing to
consult with Cary about an appeal and that Cary was
prejudiced from counsel's failure to do so. Cary v.
United States, 13-cv-1529 (C.D. Ill. 2014) (Doc. 25). As
a remedy, the Court ordered the clerk to vacate the
revocation judgment, reimpose the identical conviction and
sentence in a new judgment, and to file a notice of appeal of
the newly reimposed judgment on Petitioner's behalf.
Id. The appeal challenged various conditions of the
supervised release reimposed.
January 28, 2015, the Seventh Circuit affirmed in part and
vacated in part, and remanded with instructions to amend
Cary's conditions of supervised release. United
States v. Cary, 775 F.3d 919 (7th Cir. 2015).
Specifically, the Seventh Circuit held that Cary's
special condition requiring him to participate with the U.S.
Probation Office's Computer and Internet Monitoring
Program and “install filtering software on any computer
[he] possesses or use[s] which will monitor/block access to
sexually oriented websites” needed to be defined more
precisely on remand. Id. at 926-27. It also held
that the district court was required to make findings about
Cary's financial circumstances on remand before imposing
mandatory repayment requirements on him. Id. at 929.
March 26, 2015, this Court entered a second amended judgment
pursuant to the Seventh Circuit's mandate and remand,
revising certain special conditions of Cary's supervised
release. United States v. Cary, 11-cr-10054 (C.D.
Ill. 2011) (Doc. 87).
case concerns Cary's third § 2255 petition which
challenges this Court's most recent judgment of
revocation against Cary. On April 3, 2017, the Government
filed a petition for revocation alleging that Cary again
violated various terms of his supervised release, namely (1)
possession and use of cocaine; (2) possession and use of
alcohol; (3) failure to submit to a urine screen; and (4)
failure to report as directed. Id. (Doc. 171). At
the final hearing held in open court on May 17, 2017, Cary
admitted to all four violations. On the following day, the
Court entered a judgment of revocation and sentenced Cary to
21 months imprisonment. Id. (Doc. 182).
September 21, 2017, Cary filed a § 2255 motion
challenging the Court's May 2017 judgment of revocation,
arguing ineffective assistance of counsel. (Doc. 1). He then
filed the instant Motion for Release on Bond Pending
Resolution of his § 2255 Motion. (Doc. 5). The
Government did not file a response, and the deadline to do so
has since lapsed.
Standards and Analysis
is abundant authority that federal district judges in habeas
corpus and section 2255 proceedings have inherent power to
admit applicants to bail pending the decision of their cases,
but a power to be exercised very sparingly.” Cherek
v. United States, 767 F.2d 335, 337 (7th Cir. 1985).
Post-conviction relief of this kind should not be granted
A defendant whose conviction has been affirmed on appeal (or
who waived his right of appeal, as by pleading guilty, or by
foregoing appeal after being convicted following a trial) is
unlikely to have been convicted unjustly; hence the case for
bail pending resolution of his postconviction proceeding is
even weaker than the case for bail pending appeal. And the
interest in the finality of criminal proceedings is ...