United States District Court, S.D. Illinois
GARY E. PEEL, Petitioner,
JOHN M. KOECHNER, Respondent.
MEMORANDUM AND ORDER
M. YANDLE United States District Judge
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
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.
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
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).
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).
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.
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).
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.
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 §
December 4, 2015, Peel filed a “Motion to Reform
Judgment and Sentence under Rule 60(b)” in this Court.
It was ...