United States District Court, W.D. Arkansas, Harrison Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
MARK E. FORD, Magistrate Judge.
Before the Court is the Petitioner's Motion to Vacate, Set Aside, or Correct a Sentence Pursuant to 28 U.S.C. Section 2255 (Doc. 34) filed May 2, 2014. The United States of America filed a Response (Doc. 37) on May 14, 2014. Petitioner filed a Reply (Doc. 38) on June 5, 2014. The matter is ready for Report and Recommendation.
On September 1, 2011, a Criminal Complaint was filed against Defendant/Petitioner, David Byron Thompson ("Thompson"), alleging violation of 18 U.S.C. § 2252(a)(4)(B) by knowingly possessing a media storage device containing images of child pornography. (Doc. 1) Thereafter, on September 14, 2011, Thompson was named in a two count Indictment charging him with possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (Count One) and distributing child pornography in violation of 18 U.S.C. § 2252(a)(2) (Count Two). (Doc. 2) Thompson appeared for arraignment on October 4, 2011, and he entered a not guilty plea to each count of the Indictment. (Doc. 6) Jack Schisler, Assistant Federal Public Defender, was appointed to represent Thompson. (Doc. 8)
On January 25, 2012, Thompson appeared, with his counsel, before Hon. Jimm Larry Hendren, for a change of plea hearing. (Doc. 21) A written Plea Agreement was presented to the Court, and Thompson plead guilty to Count Two of the Indictment. (Doc. 22)
Thompson was sentenced on July 16, 2012. (Doc. 24) The Court sentenced Thompson to 151 months imprisonment, followed by 30 years supervised release, and a fine of $17, 500.00 and a $100.00 special assessment were imposed. (Docs. 24, 27) Judgment was entered by the Court on July 18, 2012. (Doc. 27) No direct appeal was taken by Thompson.
Eleven months later, on June 20, 2013, the United States filed a Motion for Reduction of Sentence Pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. (Doc. 28) The United States advised the Court of Thompson's cooperation and substantial assistance in providing credible and valuable information about several individuals involved in the receipt, collection, and distribution of child pornography in interstate commerce via the internet, and the United States requested that the Court reduce Thompson's sentence to within the range of 121 to 151 months for a Total Offense Level of 32 and Criminal History Category I. (Doc. 28) On July 3, 2013, the United States filed an Amended Motion for Reduction of Sentence Pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure requesting the Court to sentence Thompson to a specific sentence of 121 months imprisonment. (Doc. 29) The Court granted the United States' Amended Motion by Order entered on July 30, 2013. (Doc. 30) An Amended Judgment modifying Thompson's sentence to 121 months imprisonment, 30 years supervised release, a $17, 500.00 fine, and a $100.00 special assessment was entered on July 30, 2013. (Doc. 31)
Six months later, on January 30, 2014, Thompson filed a Motion to Withdraw Plea in which he raised four points: (a) that the evidence used in obtaining his guilty plea was unlawfully obtained in violation of his Constitutional rights; (b) that the search and seizure warrant was obtained in violation of Rule 41 of the Federal Rules of Criminal Procedure; (c) that there is no evidence of an interstate commerce nexus; and, (d) that his Fourth Amendment rights were violated when computer files were viewed or opened without first obtaining a warrant. (Doc. 32) The Court found, pursuant to Rule 11(e) of the Federal Rules of Criminal Procedure, that a defendant may not withdraw his guilty plea after sentence is imposed, and on March 4, 2014 the Court entered an Order denying Thompson's Motion to Withdraw Plea. (Doc. 33)
On May 2, 2014, Thompson filed his pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 34) The Motion essentially raises the same four issues as were set forth in Thompson's earlier Motion to Withdraw Plea.
A. Date Judgment of Conviction Became Final
A one year period of limitation applies to motions under 28 U.S.C. § 2255. This period runs from the latest of: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or, (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f).
An un-appealed criminal judgment becomes final when the time for filing a direct appeal expires. Anjulo-Lopez v. United States, 541 F.3d 814, 816 n. 2 (8th Cir. 2008). The Judgment in this case was entered on July 18, 2012. Had Thompson wished to file an appeal, he was required to do so within 14 days. See Fed. R. App. P. 4(b)(1)(A)(i). Thompson did not file an appeal, and his conviction thus became final on August 2, 2012. See Murray v. United States, 313 Fed.App'x 924 (8th Cir. 2009). From that date, Thompson had one year, or until August 2, 2013, to timely file a § 2255 habeas petition. Thompson's § 2255 Motion was filed on May 2, 2014, nine months after the limitations period expired.
Thompson argues, however, that his § 2255 petition is timely because it was filed within one year of the Court's Amended Judgment entered on July 30, 2013 modifying his sentence pursuant to Rule 35(b). The undersigned disagrees. This same argument has already been addressed by the Eighth Circuit Court of Appeals in Byers v. United States, 561 F.3d 832, 835 (8th Cir. 2009) in which the Eighth Circuit ruled that a sentence modification pursuant to Rule 35(b) is not a "judgment of conviction" within the meaning of the limitations period set forth in 28 U.S.C. § 2255(f). Moreover, according to ...