No. 03 C 2708 Page 3

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 Rancy 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 that Blakely 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.

formes Woven

JAMES B. MORAN

Settior Judge, U. S. District Court
( des . >}, 2004.



Any Minuedrder Form (06/97)

A/ United States District Court, Northern District of Illinois
Ni f Assigned Jud; Sitting Judge if Other
7} eer Magistrate Judge James B. Moran than Avsigued judge
CASE NUMBER 03 C 2708 DATE 8/24/2004
CASE KENNETH J. RANEY vs. UNITED STATES OF AMERICA
TITLE

[in the following box (a) indicate the party filing the motion, .g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented,}

MOTION:
MEMORANDUM OPINION AND ORDER
DOCKET ENTRY:
q) Q Filed motion of [ use listing in “Motion” box above.]
(2) Q Brief in support of motion due
(3) im} Answer brief to motion due___. Reply to answer brief due.
(4) im Ruling/Hearingon ss setfor_— at.
(5) Oo Status hearing[held/continued to] [set for/re-set for] on setfor at
(6) a Pretrial conference{held/continued to] [set for/re-set for]on__—_—set for at_
(@) Q Trial[set for/re-set for]on__at
(8) oO [Bench/Jury trial] [Hearing] held/continued to____at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OOFRCP4(m) CLocal Rule 41.1 OFRCP41(a)(1) OFRCP4I(a\(2).

ao) ff {Other docket entry] Enter Memorandum Opinion And Order. Petitioner’s motion to vacate, set
aside or correct his sentence pursuant to 28 U.S.C, 2255 is denied.

(ail) mf (For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
tices requi umber of notices

Notices mailed by judge’s staff. frm OF
One Ce

date dockered

“0, saad fs | op

dane mailed notice

Notified counsel by telephone.

a | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
LG deputy’s
initials

Date/time receiyed:in. “=! ! | :
central Clerk’s Office mailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
KENNETH J. RANEY, )
Petitioner,
vs. } No. 03 C 2708
UNITED STATES OF AMERICA, }
Respondent. }

MEMORANDUM OPINION AND ORDER

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" 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"
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

\v


‘A

No. 03 C 2708 Page 2

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" 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" 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
y. Williams, 106 F.3d 1362, 1367 (7" 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 vy. Raney, 342 F.3d 551 (7" 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