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Raney v. United States

United States District Court, W.D. Wisconsin

June 2, 2017

KENNETH JAY RANEY, SR., Plaintiff,
v.
UNITED STATES OF AMERICA

          OPINION AND ORDER

          WILLIAM M. CONLEY District Judge.

         Kenneth Jay Raney, Sr. has filed several motions in his various open cases challenging his criminal convictions, sentences, revocation of supervised release, and resentencing. They are resolved as discussed below.[1]

         PROCEDURAL HISTORY

         I. Original Challenges to Convictions

         Raney was originally sentenced in the Northern District of Illinois on April 23, 2002, following convictions for: (1) transportation with intent to engage in a sexual act with a juvenile in violation of 18 U.S.C. § 2423(b); and (2) attempt to manufacture child pornography in violation of 18 U.S.C. § 2251(a). The Court of Appeals for the Seventh Circuit affirmed the conviction on direct appeal. United States v. Raney, 342 F.3d 551 (7th Cir. 2003). Raney then filed a motion under 28 U.S.C. § 2255 seeking to vacate his conviction, which was rejected by the Northern District of Illinois on August 25, 2004. United States v. Raney, No. 03-cv-2708, 2004 WL 2056222 (N.D. Ill.). Raney did not pursue an appeal on his § 2255 motion.

         While serving his federal sentence, Raney then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the Eastern District of Wisconsin, Green Bay Division, challenging the validity of a detainer lodged against him by the State of Wisconsin. The district court found that Raney was not entitled to relief from the detainer and dismissed his petition. Raney v. Hollingsworth, No. 09-cv-292, 2009 WL 817113 (E.D. Wis. March 25, 2009). Raney also failed to appeal that decision.

         In December of 2011, Raney also filed a motion to modify his sentence under 18 U.S.C. § 3582(c)(2), asking the trial court to eliminate his three-year term of supervised release. The trial court found that Raney was not entitled to relief under 18 U.S.C. § 3582(c)(2), or any other theory for that matter, and denied the motion for lack of jurisdiction. United States v. Raney, No. 01-cr-557 (N.D. Ill. Feb. 24, 2012).

         II. Renewed Challenges to Convictions and Revocation of Release

         After serving two, concurrent 145-month terms of imprisonment, Raney began three-year, concurrent terms of supervised release in the Northern District of Illinois on February 10, 2012. Jurisdiction over Raney was transferred to this district on July 27, 2012. Since then, Raney has continued to file challenges to his convictions and sentences.

         On August 14, 2012, Raney filed another round of challenges to his conviction and sentence under 28 U.S.C. §§ 2241 and 2255, as well as 18 U.S.C. § 3582(c)(2). This court denied relief because: (1) his § 2255 motion was an unauthorized successive petition; (2) he could not rely on § 2241 for relief having failed to show that § 2255 was inadequate or ineffective to challenge his conviction or sentence; and (3) he did not raise any claims that would fall under § 3582(c)(2). (Dkt. #9 in 12-cv-584-wmc.)

         On October 4, 2013, Raney next appeared before this court on the probation office's petition for judicial review of his supervised release. The court found that Raney had violated the conditions of his supervision by: possessing a two gigabyte memory stick without permission from his supervising probation officer; and associating with convicted felon Timmy J. Reichling, again without permission. The defendant's term of supervised release was nevertheless continued with the express provision that: (1) he must remain in strict compliance with all terms and conditions of his release as previously imposed; and (2) any contact, direct or indirect, in person or via other technology with Mr. Reichling would itself constitute a revocable offense unless that contact was approved in advance and in writing by the probation office or was arranged through defendant's legal counsel.

         On October 14, 2014, Raney appeared for another judicial review hearing. The court again found that Raney had violated terms of his supervised release, including that: he had received permission to travel outside the district but had failed to tell his probation officer that he would be travelling with minor children; and he had been associating with minor children for several months without the knowledge of his probation officer. Following the hearing, the court revoked Raney's supervised release and sentenced him to 9 months' prison to be followed by 24 months' supervised release. (Dkt. #25 in 12-cr-100.) Raney immediately filed notice appealing the revocation and conditions of his renewed supervised release.

         III. Further Challenges to Underlying Convictions and Release Conditions

         On March 17, 2015, while his appeal was still pending, Raney filed three more motions in his criminal case, Case No. 12-cr-100: (1) a request for a new judge and a new hearing on revocation (dkt. #40); (2) a request for stay of the revocation pending his Seventh Circuit appeal (dkt. #39); and (3) a motion to vacate the revocation order under 28 U.S.C. § 2255 (dkt. #41). The § 2255 motion was also docketed under Case No. 15-cv-174-wmc. The court denied all three motions. With respect to the motion under § 2255 in particular, the court dismissed the motion as premature while Raney's direct appeal was still pending. (Dkt. #45). On August 12, 2015, the Seventh Circuit also upheld revocation of defendant's supervised release, but granted the appeal with respect to the sentencing and conditions of supervised release, and remanded the case to this court for resentencing. United States v. Raney, 797 F.3d 454 (7th Cir. Aug. 12, 2015).

         On September 20, 2015, after the Seventh Circuit's decision but before the resentencing hearing was held, Raney filed yet another motion in the Northern District of Illinois to “Set Aside or Stay Sentence Pending the Results of the 2255 Motion Filed with this Court.” The Northern District construed the motion as one for relief under 28 U.S.C. § 2255, transferring it to this court. (Raney v. United States, 15-cv-639-wmc.) A couple of weeks later, Raney filed petition for a writ of habeas corpus under 28 U.S.C. § 2241 in this court, once again attempting to raise various challenges to his underlying conviction, as well as to the revocation of his supervised release. (Raney v. United States, 15-cv-663-wmc.)

         The court held a resentencing hearing on November 6, 2015, in accordance with the Seventh Circuit's instructions. After that hearing, the court again concluded that a 9- month period of incarceration and a 24-month term of supervised release was appropriate. The court also held that all standard and special conditions of supervised release previously imposed were appropriate, with some modifications. By this time, Raney had already served his 9-month period of incarceration, meaning the sole effect of resentencing was to reinstate the two years of supervised release under the same conditions as before. (Dkt. #61 in 12-cr-100-wmc).

         On November 16, 2015, Raney filed a notice of appeal with the Seventh Circuit, once again purporting to challenge the procedural soundness of his sentence, as well as imposition of a condition of supervised release that requires him to “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.” On December 2, 2015, Raney filed a new motion under Raney v. United States, 15-cv-782-wmc. He also filed a “motion to set aside or stay sentence or grant a new hearing pending the results of the § 2255” motion, as well as a “motion for a new judge” in all of his open cases. The Seventh Circuit affirmed Raney's resentencing on December 1, 2016. United States v. Raney, 842 F.3d 1041 (7th Cir. 2016).

         OPINION

         I. Motions for a New Judge (Dkt. #70 in 12-cr-100-wmc; dkt. #3 in 15-cv-782- wmc; dkt. #6 in 15-cv-663-wmc).

         Raney requests that a new judge be appointed for all of his cases on the ground that this court has “repeatedly violated [his] due process rights.” Raney's motion will be denied. Under 28 U.S.C. § 455, recusal is necessary in a number of circumstances, including when a judge's impartiality might reasonably be questioned, or when he or she has a personal bias or prejudice concerning a party. As the court already explained to Raney in its June 11, 2015, order denying his request for recusal, Raney has identified no valid grounds for recusal:

This court's impartiality cannot reasonably be questioned, and the court holds no personal bias or prejudice against Raney. The court's order revoking Raney's supervised release was the direct result of Raney's repeated misbehavior, recommendations of his supervising probation officer, and the court's interest in holding defendant accountable, protecting the community and providing deterrence. Following admission of evidence, as well as a lengthy exchange with counsel for both sides, the court also gave Raney the opportunity to address the court before rendering its decision, which he did. (Tr. of 10/8/14 Judicial Review, Dkt. #31, at 85-85.)
Clear and convincing evidence supports the court's conclusion that on multiple occasions Raney violated a fundamental condition of the terms of his supervised release, which was to provide truthful information to his supervising probation officer. Moreover, in imposing a sentence for the violations, the court did not exceed its discretion, arriving at a sentence near the middle of the guideline range. Nothing in the record, nor ...

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