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Peel v. Koechner

United States District Court, S.D. Illinois

November 16, 2017

GARY E. PEEL, Petitioner,
v.
JOHN M. KOECHNER, Respondent.

          MEMORANDUM AND ORDER

          STACI M. YANDLE United States District Judge

         Petitioner Gary Peel, who is currently serving a 3-year term of supervised release after having served the required period of incarceration pursuant to his 144-month sentence, brings this habeas corpus action pursuant to 28 U.S.C. § 2241, challenging the constitutionality of his conviction and sentence.

         This case is now before the Court for a preliminary review of the Petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts. Rule 4 provides that upon preliminary consideration by the district court judge, “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” Additionally, under Rule 1(b), the district court is authorized to apply the rules to other habeas corpus cases, such as this action under 28 U.S.C. § 2241. After carefully reviewing the Petition, this Court concludes that this action is subject to dismissal.

         Procedural Background

          Peel was convicted by a jury in this Court of bankruptcy fraud, obstruction of justice and possession of child pornography. He was sentenced to a term of 144 months incarceration on November 19, 2007. United States v. Peel, Case No. 06-cr-30049-WDS. The facts underlying his conviction were summarized by the United States Court of Appeals for the Seventh Circuit as follows:

The events giving rise to this case go back a long way. In 1967 the defendant married. Seven years later he began an affair with his wife's 16-year-old sister. In the course of the affair, which lasted several months, he took nude photographs of her . . . . In response to her later request for the pictures, he gave her some of them . . . and, without telling her, retained others in a file in his office.
In June 2003 the Peels divorced, and agreed to a marital settlement. The following year Peel filed suit in an Illinois state court to vacate the settlement. The year after that he filed for bankruptcy and asked the bankruptcy court to discharge the financial obligations to his ex-wife that the settlement agreement had imposed. She opposed the discharge and filed a claim for the money that he owed her under the settlement. . . . [H]is debt to her under the settlement probably was not dischargeable in bankruptcy under the Bankruptcy Code as it then read. [citations omitted] (Under the current Code, it almost certainly would not be dischargeable. [citations omitted].) So he had to persuade her to drop the claim.
Negotiations looking to compromise it were predictably acrimonious and in the course of them the defendant told her about the nude photographs of her sister and said that “these would be . . . an item that would likely get out into the public if we didn't stop this escalating battle of putting things in the newspaper.” He backed up his threat by placing photocopies of the photographs in her mailbox. She complained to the police and later to federal authorities, and at their direction made recorded phone calls to the defendant. The conversations confirmed that he was blackmailing her with the photographs. He faxed her a draft of a settlement agreement that she had previously rejected, adding a provision requiring him to return certain unidentified photographs to her. They met and he showed her the originals. The meeting was recorded, and included an exchange in which she said: “So you resort to blackmailing me?” He replied: “There's nothing left. I'm down to: no kids; no grand-kids; no money.” “And, so, ” she responded, “blackmailing me with photographs . . . . Okay, but as long as I go ahead and sign these settlement agreements . . . .” He replied: “Right then you have . . . .” And she: “. . . you'll give me the photographs . . . .” And he: “On the spot.”

United States v. Peel, 595 F.3d 763, 765-66 (7th Cir. 2010).

         On remand after direct appeal, this Court dismissed the conviction for obstruction of justice, recalculated the amount of the intended loss relevant to the bankruptcy fraud, recalculated the applicable guideline sentencing range and resentenced Peel to 144 months (which included consecutive sentences of 24 months for bankruptcy fraud and 102 months for possession of child pornography). That sentence was affirmed on appeal from the Amended Judgment. United States v. Peel, 668 F.3d 506 (7th Cir. 2012).

         In both the first and second appeals, Peel contested the criminality of his possession of the nude photographs of the then-16-year-old minor. The appellate court rejected his contention that the photos should not be characterized as “child pornography” in 2005-2006, because at the time he took them in 1974, the statute under which he was convicted had not yet been enacted and the photos were not illegal when they were taken. The child pornography statute was amended in 1984 to provide that a minor under age 18 was a “child, ” thus criminalizing Peel's possession of the photos when he was charged and convicted. Noting that Peel had forfeited this argument because he did not raise it at trial, the Seventh Circuit nonetheless addressed the merits and rejected Peel's argument that his possession of the originally-legal pictures should be “grandfathered” and that he should not be subject to prosecution under the amended version of the statute. Peel, 668 F.3d at 509 (citing Peel, 595 F.3d at 770).

         In that second appeal, Peel also argued that his punishment for illegally possessing child pornography that was legal when he created it violated the First Amendment's free speech clause and the Ex Post Facto clause of Article I of the Constitution. Peel, 668 F.3d at 510. The Seventh Circuit found both arguments frivolous and noted that Peel forfeited the arguments because he failed to raise them in his first appeal.

         Since the dismissal of his second appeal, Peel has brought a series of collateral attacks on his conviction and sentence. On April 29, 2013, this Court denied his request to vacate, set aside or correct his sentence pursuant to a 28 U.S.C.A § 2255 petition, in which Peel claimed that he was denied the effective assistance of counsel. Peel v. United States, Case No. 12-cv-275-WDS; (Doc. 4, p. 23; Doc. 4-2, pp. 1-22). The claims of ineffectiveness included Counsel's failure to present his statutory and constitutional challenges to the child pornography statute at trial. This Court found no merit to Peel's claims that his attorneys were ineffective for failing to raise due process, First Amendment, equal protection and ex post facto arguments. (Doc. 4-2, pp. 5-9).

         On May 11, 2014, Peel filed a habeas petition under 28 U.S.C. § 2241 in the Eastern District of Kentucky. Peel v. Sepanek, Case No. 14-cv-77, 2014 WL 3611151 (E.D. Ky.); (Doc. 4-1, pp. 70-75). He raised arguments that the child pornography statute (18 U.S.C. § 2252A(a)(5)(B)) violates the Equal Protection Clause, the Due Process Clause, the Ex Post Facto Clause and the Eighth Amendment. He also contended that he should have been sentenced under a lower guideline range based on newly-discovered evidence that establishes a lower value for the photographs he had possessed. Peel v. Sepanek, Case No. 14-cv-77, 2014 WL 3611151, at *2 (E.D. Ky. July 21, 2014). The court denied habeas relief, finding that Peel's claims could have been brought on direct appeal or in his initial § 2255 challenge. As such, they did not fall within the narrow scope of the “savings clause” found at 28 U.S.C. § 2255(e) and could not be brought under § 2241. Peel v. Sepanek, 2014 WL 3611151, at *3.

         Peel next sought permission from the Seventh Circuit to bring a second/successive § 2255 petition to challenge the calculation of his intended loss, which if successful, would reduce his offense level. Peel v. United States, No. 15-3269 (7th Cir.); (Doc. 4-1, pp. 63-64). This application was denied because Peel had already challenged the intended loss calculation on direct appeal and in his first § 2255 petition.

         On December 4, 2015, Peel filed a “Motion to Reform Judgment and Sentence under Rule 60(b)” in this Court. It was ...


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