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Cary v. United States

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

December 21, 2017

JEREMY S. CARY, Petitioner,

          ORDER & OPINION

          JOE BILLY McDADE United States Senior District Judge

         This matter is before the Court on a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 filed by Jeremy Cary. (Doc. 1). For the reasons stated below, the motion is DENIED.


         In 2009, Petitioner Jeremy Cary was convicted in Illinois of Aggravated Criminal Sexual Abuse. 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.

         On April 3, 2017, the Government filed its fourth petition for revocation since 2011 against Cary, alleging that he 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. The following day, the Court entered a judgment of revocation and sentenced Cary to 21 months imprisonment. Id. (Doc. 182).

         On September 21, 2017, Cary filed the instant § 2255 motion challenging the Court's May 2017 judgment of revocation, arguing ineffective assistance of counsel. (Doc. 1). He also challenges the protocol at Unity Point Methodist Hospital for collecting urine samples used in toxicology reports. Id. at 8. On November 7, 2017, the Government filed its response (Doc. 12) and on November 27, 2017, Cary filed a reply (Doc. 13). This matter is now ripe for decision.

         Legal Standards

         Section 2255 of Title 28 of the United States Code provides that a sentence may be vacated, set aside, or corrected “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” “Relief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Thus, § 2255 relief is limited to correcting errors of constitutional or jurisdictional magnitude or errors constituting fundamental defects that result in complete miscarriages of justice. E.g., Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994), overruled on other grounds by United States v. Ceballos, 26 F.3d 717 (7th Cir. 1994).

         “A § 2255 motion is not a substitute for a direct appeal.” Coleman v. United States, 318 F.3d 754, 760 (7th Cir. 2003) (citing Doe v. United States, 51 F.3d 693, 698 (7th Cir. 1995)). Claims other than ineffective assistance of counsel cannot be raised for the first time in a § 2255 motion if they could have been raised on direct appeal. McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016). “A federal prisoner cannot bring defaulted claims on collateral attack unless he shows both cause and prejudice for the default.” Id. (citing Hale v. United States, 710 F.3d 711, 713 (7th Cir. 2013); Gant v. United States, 627 F.3d 677, 683 (7th Cir. 2010)). “Absent a showing of both cause and prejudice, procedural default will only be excused if the prisoner can demonstrate that he is ‘actually innocent' of the crimes of which he was convicted.” Id. (citing Torzala v. United States, 545 F.3d 517, 522 (7th Cir.2008)).


         Cary argues that his trial counsel provided ineffective assistance during his supervised release revocation proceedings by (1) failing to assert privilege under Federal Rule of Evidence 501 concerning some of Cary's medical records; (2) failing to file a motion to suppress Cary's statements to probation officers that he possessed and used cocaine; (3) failing to argue insufficient evidence that Cary consumed cocaine; and (4) failing to argue that Cary's possession of cocaine was not a felony offense and thus was not a grade B violation. Cary also challenges Unity Point Methodist Hospital's (“UPMH”) urine collection protocol. Cary claims that his urine sample, which tested positive for narcotics, was not properly secured or confirmed using another method.

         Ineffective assistance of counsel requires a petitioner to show (1) “that counsel's representation fell below an objective standard of reasonableness, ” and (2) “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Cary must also “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689.

         However, “[t]here can be no challenge to the adequacy of counsel unless there is an underlying right to counsel in a particular proceeding.” United States v. Yancey, 827 F.2d 83, 89 (7th Cir. 1987). “[A] revocation proceeding is not considered a criminal prosecution under the Sixth Amendment, ” and a defendant therefore “'has no Sixth Amendment right to counsel' in the context of a revocation proceeding.” United States v. Jones, 861 F.3d 687, 690 (7th Cir. 2017) (quoting United States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir. 2015)). Although, “the Fifth Amendment's due process clause accords a defendant certain basic procedural protections, including a right to representation by counsel” when “a defendant has a colorable claim that he has not violated the conditions of release, or if he has ‘a substantial case to make against revocation, notwithstanding any violation, that may be difficult to develop or present.'” Jones, 861 F.3d at 690 (quoting Boultinghouse, 784 F.3d at 1171). Cary admitted in open court to all four violations alleged his the petition for revocation. This basis alone precludes any claim of ineffective assistance. See United States v. Quillman, 409 F.App'x 18, 21 (7th Cir. 2011) (“because Quillman admitted to the violations alleged in the petition for revocation and did not offer any substantial justification or arguments in mitigation, he had no constitutional right to counsel at his revocation hearing, which precludes any claim of ineffective assistance.”).

         Even if the right to counsel attaches to Cary's ineffectiveness claims, Cary's claims fail on the merits. Cary authorized release to the U.S. Probation Office of all confidential records and information pertaining to him, including “[m]edical records, both of a physical nature and of a psychological/psychiatric nature, including records of alcohol and/or drug and/or narcotic treatment.” (Doc. 12, Exh. 2 at 3). The document is titled AUTHORIZATION TO RELEASE CONFIDENTIAL INFORMATION. Federal Rule of Evidence 501 protects from compelled disclosure “confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment, ” Jaffee v. Redmond, 518 U.S. 1, 15 (1996), but that privilege, like any, can be waived. Because Cary authorized release of his medical records to probation, any claimed privilege in those records was waived, and any objection based on privilege would have been baseless. In any event, the exclusionary rule is inapplicable to Cary's revocation proceedings. See Penn. Bd. of Probation & Parole v. Scott, 524 U.S. 357, 364 (1998) (declining to extend exclusionary rule to revocation proceeding); Johnson v. United States, No. 14-474, 2015 WL 3544881, *3 (S.D. Ill. June 5, 2015). Thus, regardless of whether ...

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