MADISON - ST. CLAIR RECORD

Gary Peel, a former Madison County attorney now behind bars, is not entitled to summary judgment for two reasons, the federal prosecutor's office asserts.

The U.S. Attorney’s Office for the Southern District of Illinois on Monday filed a response in opposition to Peel’s request for summary judgment in relation to his March 2012 motion that asked the court to vacate, set aside or correct his prison sentence.

Peel, who is serving a 12 year prison sentence in Kentucky, was convicted in 2007 of bankruptcy fraud and child pornography possession. He was accused of blackmailing his ex-wife with nude photographs of her then-minor sister.

His March 2012 motion was made under Section 2255, which provides remedies for prisoners to attack their sentences, and alleged 16 grounds for relief, all of which were based on ineffective assistance of counsel.

“First, summary judgment is inconsistent with a [Section] 2255 motion in which no discovery has occurred,” the office asserts in its response. “Second, summary judgment is only appropriate when there are uncontested facts. Because the parties disagree, summary judgment in petitioner’s favor is not appropriate.”

Pointing to federal rules, the U.S. Attorney's Office states that Section 2255 provides for “appeals, evidentiary hearings, discovery, and expanding the record,” but does not expressly provide for summary judgment.

“Here, petitioner, at best, may be entitled to an evidentiary hearing, but certainly is not entitled to a trial,” the office contends. “Further, petitioner was not permitted to conduct discovery. All necessary evidence exists in the form of court records and transcripts.”

This past fall, Peel asked U.S. District Judge William Stiehl for permission to conduct discovery and appoint him an attorney to help him identify and obtain documents he claimed would help determine whether an evidentiary hearing was needed.

Stiehl denied those requests in January and wrote in his order that he had not yet determined whether an evidentiary hearing over his motion is needed.

Because Peel wasn’t allowed to conduct discovery, the federal prosecutor's office asserts in its response that “no new information has been gained, nor issues narrowed.”

“The issues are the same today as they were when petitioner first filed for relief,” the office claims. “Thus, summary judgment is not an appropriate procedural tool in this case.”

And even if summary judgment was an appropriate tool, the office claims Peel’s motion should still be denied “because summary judgment is proper only ‘if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.’”

The federal prosecutor’s office also disputed several of the statements Peel alleged as facts in his motion for summary judgment, which asked the court to set aside his convictions, grant him a new trial and issue a finding of actual innocence on the child pornography possession counts.

Peel claimed in his motion that his ex-wife’s sister was 16 when those photos were taken in 1974. At that time, he contended, there was no federal child pornography statue in effect and Congress recognized that 16 was the age at which a person could consent to sexual activity.

Because his ex-wife’s sister could consent at 16 and there was no child porn law in 1974 when the nude photos were taken, Peel asserted in his motion for summary judgment that “the First Amendment protects their possession from criminal prosecution.”

To dispute Peel’s argument on this issue, the U.S. Attorney's Office pointed to the Seventh Circuit Court of Appeal’s ruling in Peel’s case in which it found that his ex-wife’s sister was not an adult in 1974 and that the nude photos of her constituted child pornography.

“The legal conclusion has already been provided by the Seventh Circuit: Petitioner’s 1974 conduct was a misdemeanor form of statutory rape,” the office contends. “Petitioner is not entitled to re-litigate these claims already adversely decided on direct appeal.”

U.S. Attorney Stephen Wigginton and Assistant U.S. Attorney Jennifer Hudson submitted the response.

Peel is representing himself in his appeal over his prison sentence, as well as in a bankruptcy matter and in his attorney disciplinary proceedings.

A hearing board of the Illinois Attorney Registration and Disciplinary Commission has recommended Peel be disbarred from the practice of law. His law license was suspended on an interim basis in 2008 as a result of his convictions.