MADISON - ST. CLAIR RECORD

A former Madison County attorney’s latest effort to have his 12-year-prison sentence set aside, vacated or corrected has been quashed.

In a 22-page opinion issued late last month, U.S. Judge William Stiehl denied Gary Peel’s March 2012 motion and rejected as moot his subsequent requests for summary judgment and to expedite the entry of orders in his case.

Peel, who has represented himself in court filings from behind bars 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, who he had an affair with.

Peel’s 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 his contention that he received ineffective assistance of counsel.

After he filed that request, Peel submitted several other motions, all of which were eventually denied, including those seeking summary judgment, permission to conduct discovery and for the appointment of an attorney to help him identify and obtain documents.

In his Section 2255 motion, Peel argued that his attorneys’ failure to raise certain constitutional arguments constituted ineffective assistance of counsel.

He asserted that his prosecution for child pornography violated his due process rights because he and his ex-wife’s sister were consenting adults. He claimed that when he took the nude photos in 1974, the age of consent in Illinois was 16 and there was no state child pornography law on the books at that time.

Stiehl, however, didn’t buy Peel’s arguments. He denied all of Peel’s motions, dismissed the case with prejudice and refused to issue a certificate of appealability in the order he handed down on April 29.

“His due-process arguments amount to the claim that ignorance of the law is a defense to criminal prosecution, which is not true, except in limited situations that do not apply here,” Stiehl wrote. “His attorneys were therefore wise not to make the due-process arguments, if they considered them.”

Stiehl wrote that Peel’s attorneys likely didn’t consider his due process claims because their defense focused in part on how Peel testified that he believed his ex-wife’s sister was over the age of 18, but did not know how old she was.

Having said that during his testimony, Stiehl wrote in his order, Peel “cannot now claim that he was relying on factors such as the age of consent in Illinois, much less blame his attorneys for not arguing that.”

In regards to Peel’s “repeated assertions” that his sexual relationship with his ex-wife’s sister was legal, Stiehl bluntly wrote in his order: “it was not” and pointed to the federal court of appeals, which previously had explained that Peel was “guilty of contributing to the sexual delinquency of a minor … a misdemeanor form of statutory rape.”

Although Peel claimed 16 was the age of consent in Illinois in 1974 and that there was no child porn statute back then, Stiehl stressed in his order that Peel was convicted under federal law, which defines a minor as anyone under 18.

“What petitioner did in 1974, and the state of the law in Illinois then, is not relevant,” Stiehl wrote.

The judge also rejected an argument Peel made in his Section 2255 motion that the judge wrote was “loosely based on equal protection, although it also derives from his unique understanding of the First Amendment.”

Peel had argued that his ex-wife’s sister was exercising her free speech and expression rights by posing nude and he was exercising his right to possess photos of her.

“No fundamental right was burdened here,” Stiehl wrote. “The court of appeals scotched the First Amendment claim. There is no right to possess (or pose for) child pornography.”

In addition, Peel claimed that his attorneys should have argued that his ex-wife’s sister was an adult at the time the photos were taken and used a different standards test in offering a jury instruction that defined the term “lascivious.”

Since his ex-wife’s sister was not an adult in 1974, Stiehl asserts that Peel’s “claim is frivolous” and that while the federal court for the Southern District of Illinois has not “expressly endorsed” the standards test Peel took issue with, “it is not plain error to use them.”

Peel also asserted that one of his attorneys “breached his duty of loyalty” by saying in closing argument that although he wouldn’t want Peel to marry his daughter, he was proud to be his lawyer and defend him against what he dubbed as “overzealous prosecution.”

“The Court finds no basis for this claim,” Stiehl wrote. “Petitioner’s attorney acted reasonably in the circumstances of this case.”

In addition, Peel also argued that his attorneys failed to refute a statement made by his son Jeff, who was a Fairview Heights police officer and reprimanded for using his department’s system to run a background check on a woman he believed Peel was having an affair with.

Jeff, according to Stiehl’s order, testified that after Peel tried to have him fired for doing the background check, he decided he didn’t want anything to do with his father anymore.

“The Court finds that this one statement could hardly have prejudiced petitioner’s case. Jeff in fact made a number of damaging statements” Stiehl wrote. “Petitioner is unable to show that, but for his attorneys’ errors, there is a reasonable probability that the result of his trial would have been different. Otherwise, petitioner’s attorneys used a reasonable strategy in focusing on Jeff’s misconduct.”

On top of rejecting several other arguments raised by Peel, Stiehl refused to issue a certificate of appealability, something that Peel would need to obtain from the federal district or appeals courts if he wants to appeal the April 29 order.

Saying that Peel’s claims are either without merit, not relevant, have already been addressed or frivolous, Stiehl wrote that he “does not find that reasonable jurists would find its assessment of the constitutional claims debatable or wrong.”

“A certificate of appealability will not be issued,” the judge wrote in his order. “If petitioner wishes to appeal, he may request that a circuit judge issue the certificate.”

Peel's law license was suspended on an interim basis in 2008 as a result of his convictions. A hearing board of the Illinois Attorney Registration and Disciplinary Commission (ARDC) in February recommended that Peel be disbarred from the practice of law.

Citing his Section 2255 motion, Peel told the ARDC Hearing Board at a June hearing, in which he participated by phone, that it called the hearing prematurely because he had not yet exhausted the appeals process in his case.

He argued that proceeding with the disciplinary hearing before a judge ruled on his March 2012 motion would violate his due process rights.