Raney v. U.S.

Full title: KENNETH J. RANEY, Petitioner, v. U.S., Respondent

Court: United States District Court, N.D. Illinois, Eastern Division

Date published: Aug 24, 2004

No. 03 C 2708 (N.D. Ill. Aug. 24, 2004)

Opinion

No. 03 C 2708.

August 24, 2004

MEMORANDUM OPINION AND ORDER

JAMES MORAN, Senior District Judge

On December 19, 2001, petitioner Kenneth J. Raney was convicted of one count of traveling in interstate commerce to engage in a sexual act with a minor, and one count of attempted manufacture of child pornography. On April 23, 2002, the court sentenced petitioner to a term of 145 months in prison. Petitioner now moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the petition is denied.

Petitioner challenges his sentence, arguing that his trial counsel was ineffective, there was no probable cause for his arrest, and that he was entrapped by the government. Section 2255 allows a criminal defendant to seek relief if he can show proof that there was a fundamental defect in his conviction that resulted in a miscarriage of justice. Borre v. United States, 940 F.2d 215, 217 (7^th Cir. 1991). A petitioner is barred from relitigating those arguments that have already been rejected. Daniels v. United States, 26 F.3d 706, 711-12 (7^th Cir. 1994).

In arguing that the government lacked probable cause and that it entrapped him, petitioner is seeking to relitigate issues that were decided at his trial. He had the opportunity to present his case to the jury prior to the verdict and does not now raise any new arguments or present any newly discovered evidence. For those reasons, the petition is denied and we decline to revisit the earlier determinations of the court and the jury.

Petitioner bears a heavy burden in proving an ineffective assistance of counsel claim. United States v. Moya-Gomez, 860 F.2d 706, 763 (7^th Cir. 1988). He must show that his attorney's conduct fell below an objective standard of reasonableness and that there is a reasonable probability that, but for the attorney's conduct, the outcome would have been different. Id. In this petition, Raney claims that his trial attorney was ineffective in three ways. He argues that his attorney failed to call an additional witness at the suppression hearing. Next, that his counsel failed to spend a sufficient amount of time with him, preparing for trial. Finally, petitioner argues that his counsel erred by failing to object to the adult pornography offered at trial as being outside the scope of his consent to a search.

It is not the court's place to second-guess trial counsel's strategic decisions. United States v. Otero, 848 F.2d 835, 838 (7^th Cir. 1988). The decision to call or not to call a witness is generally classified as such a strategic decision and is not subject to review. United States v. Williams, 106 F.3d 1362, 1367 (7^th Cir. 1997). While petitioner claims that his attorney did not sufficiently prepare for trial, he fails to point out any substantive defect in his defense — his attorney vigorously defended him and challenged the government's evidence. Finally, the Seventh Circuit has rejected petitioner's argument that his attorney should have objected to the introduction of the pornography into evidence as outside the scope of his consent.United States v. Raney, 342 F.3d 551 (7^th Cir. 2003). In affirming the conviction, the court held that the evidence was relevant in that it related to petitioner's intent. Id. at 557-58. There is no further reason to find that petitioner's attorney erred in deciding not to object to the introduction of that evidence at trial.

Even if we were to determine that petitioner's counsel was somehow ineffective, there is no reason to believe that the outcome of the trial would have been different but for the attorney's decisions. There was a substantial amount of evidence offered against Raney and he would be unable to establish that he was somehow prejudiced.

In a letter accompanying petitioner's reply brief, he also seeks to have his sentence reduced pursuant to the Supreme Court's recent ruling in Blakely v. Washington, 124 S. Ct. 2531 (2004). That motion is denied without prejudice — plaintiff may refile an applicable motion if it is subsequently determined thatBlakely applies retroactively to sentences determined under the federal sentencing guidelines.

CONCLUSION

For the foregoing reasons, petitioner's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 is denied.