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 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.
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.
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).
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.
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
§ 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
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.
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.
“[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.”).
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 ...