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McKanry v. United States

United States District Court, E.D. Missouri, Eastern Division

February 4, 2015

WILLIAM E. MCKANRY, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM AND ORDER

CHARLES A. SHAW, District Judge.

This matter is before the Court on movant William E. McKanry's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255. The government responded to the motion by filing a motion to dismiss. Movant did not respond to the government's motion and the time for doing so has passed. For the following reasons, the Motion to Vacate, Set Aside or Correct Sentence will be denied.

Background

On June 12, 2008, movant was charged by a twenty-count criminal indictment with conspiracy, mail fraud, and wire fraud arising out of the sale of twelve real estate properties. On July 16, 2009, movant was charged by a twenty-one-count superseding criminal indictment with the original crimes and an additional count of making a false statement. See Case No. 4:08-CR-365 CAS; Docs. 1 and 76.

Initially movant was represented by Brian Witherspoon of the Federal Public Defender. On April 7, 2009, private counsel Freeman R. Bosley, Jr. entered his appearance on behalf of movant. Shortly thereafter, private counsel Daniel Brown entered his appearance on behalf of movant.

On October 5, 2009, defendant went to trial before a jury on Counts 1-21 of the superseding indictment. After a five day trial, the jury returned a verdict of guilty as to Counts 1-2 and Counts 15-21, and not guilty as to Counts 3-14. The jury found defendant guilty of conspiracy (Count 1), making a false statement to a postal inspector (Count 2), and mail and wire fraud with respect to three of the twelve properties (Counts 15-21). On December 22, 2009, defendant was sentenced to 27 months imprisonment followed by a term of 2 years supervised release.

On January10, 2012, defendant filed the instant § 2255 motion to vacate, set aside, or correct his sentence. In addition to these forms of relief, defendant states he seeks to "vacate [the] judgment, or conduct [an] evidentiary hearing, or resentence." (Mot. at 15). Movant asserts ineffective assistance of counsel as his only ground for relief. Within this ground, movant asserts seven separate failures of trial counsel:

(1) counsel lacked experience in federal court;
(2) counsel failed to adequately defend against the charge of lying to a U.S. Postal Inspector;
(3) counsel seemed hesitant or uncertain and had to be assisted by the Court;
(4) counsel failed to ask many relevant questions regarding 100% loans;
(5) counsel failed to obtain appropriate witnesses;
(6) counsel's questioning was ineffective and incomplete; and
(7) counsel failed to give an adequate closing argument.

Within months of filing his motion to vacate, plaintiff completed his 27-month term of imprisonment. (See Doc. 8). On March 7, 2013, the Court granted defendant's request for early discharge from ...


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