United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE REPORT AND RECOMMENDATION
R. MARSCHEWSKI, UNITED STATES MAGISTRATE JUDGE
the court is the Petitioner's Motion to Vacate, Set
Aside, or Correct a Sentence Pursuant to 28 U.S.C. Section
2255 (Doc. 71) filed May 13, 2019. The United States of
America filed a Response (Doc. 77) on June 13, 2019. The
Petitioner has not filed a Reply and the matter is ready for
Report and Recommendation.
Garretson (“Garretson”) was charged on August 9,
2016, in a nine-count Indictment that alleged violations of
18 U.S.C. § 2423(a), Interstate Transportation of a
Minor with Intent to Engage in Criminal Sexual Activity.
(Doc. 15). An eleven-count Superseding Indictment was filed
October 5, 2016, that charged him with eleven counts of
Interstate Transportation of a Minor with Intent to Engage in
Criminal Sexual Activity, in violation of 18 U.S.C §
2423(a). (Doc. 26).
October 25, 2016, Garretson appeared before the Honorable P.
K. Holmes, III, for a change of plea hearing. (Doc. 32).
Garretson pleaded guilty to Counts One, Two, Four, Eight and
Eleven of the Superseding Indictment. (Doc. 33). The
statutory mandatory minimum term of imprisonment for Count
One was ten years' imprisonment and a maximum of life
imprisonment. Case Counts Two, Four, Eight and Eleven had no
statutory mandatory minimum term of imprisonment and maximum
penalty of 15 years per count.
Presentence Investigation Report (“PSR”)
calculated a total offense level of 49. (Doc. 38, ¶
195). Given that offense level 43 is the highest offense
level in the sentencing guideline matrix, Garretson's
offense level was reduced to 43. (Doc. 38, ¶ 264). Life
imprisonment is the recommended sentence corresponding to
offense level 43 and criminal history category I.
(Id.). Where a count of conviction carrying the
highest statutory maximum satisfies the recommended range for
the total punishment, the sentences on all counts shall be
imposed to run concurrently, except to the extent otherwise
required by law. See U.S.S.G. § 5G1.2(c). In this case,
a sentence of life imprisonment on Count One satisfied the
recommended range for all the counts of conviction.
was sentenced to life imprisonment on Count One and fifteen
years on each of Counts Two, Four, Eight and Eleven, to be
served concurrently with Count One. (Doc. 43). The Court
imposed a term of supervision for life on Count One and three
years of supervised release for each of Counts Two, Four,
Eight and Eleven, to run concurrently with Count One.
filed a timely notice of appeal on June 13, 2017. (Doc. 48).
Counsel moved to withdraw and submitted a brief under
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,
18 L.Ed.2d 493 (1967). Garretson filed a pro se supplemental
brief, arguing the district court did not properly consider
the 18 U.S.C. § 3553(a) factors, the statute of
conviction called for a sentence “grossly
disproportionate” to the offense and was overly broad.
The Eighth Circuit affirmed Garretson's sentence.
United States v. Garretson, 709 Fed.Appx. 417 (8th
Cir. 2018). The Court of Appeals found Garretson's
sentence was reasonable and not grossly disproportionate to
his crimes, considering the number of victims, the severity
of the abuse, and the time over which the abuse occurred, and
held the statute of conviction was not overly broad.
Id. at 418.
Garretson sought a subpoena duces tecum for discovery of his
attorney's file or for an Order directing his counsel to
provide all papers, “cover to cover, ” so he
could prepare a motion for relief pursuant to 28 U.S.C.
§ 2255. (Doc. 64). The Court denied Garretson's
motion for subpoena or Order. (Doc. 67). Next, Garretson
filed a pro se motion to compel counsel to release all
Federal documents. (Doc. 70). He filed the instant Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (the “§
2255 Motion”) and Memorandum in Support on May 13,
2019. (Docs. 71 and 72).
Statute of Limitations
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), a section 2255 motion must be filed within one year
of Athe date on which the judgment of conviction becomes
final@. See 28 U.S.C. § 2255; Campa-Fabela v. United
States, 339 F.3d 993 (8th Cir. 2003).
conviction is final for purposes of starting the clock on a
§ 2255's limitations period “when the time
expires for filing a petition for certiorari contesting the
appellate court's affirmation of the conviction.”
Clay v. United States, 537 U.S. 522, 524-25 (2003).
Under Supreme Court Rules, the time to file a petition for
writ of certiorari is within 90 days after the Court of
Appeals enters judgment, not after it issues the mandate. See
Sup.Ct.R. 13. In this case, the Eighth Circuit affirmed the
sentence by written opinion filed January 23, 2018.
Garretson's time to file a petition for writ of
certiorari expired April 23, 2018, which was 90 days from
which the Eighth Circuit filed its opinion affirming his
filed his § 2255 motion on May 13, 2019 (Doc. 71, p.1)
but it is dated May 8, 2019. (Id., p. 12) Even
allowing for the date the petition was executed the petition
is out of time and is barred unless he is entitled to
U.S. Supreme Court has established that “federal habeas
review of [defaulted] claims is barred unless the prisoner
can demonstrate cause for the default and actual prejudice as
a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.” Coleman
v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991); Bousley v. United States, 523
U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998);
Turnage v. Fabian, 606 F.3d 933 C.A. 8 (Minn.) 2010.
prisoner whose petition is belatedly filed may take advantage
of equitable tolling where extraordinary circumstances beyond
his control make it impossible for him to file a petition on
time or when the action of the respondent lulled him into
inaction. Jihad v. Hvass, 267 F.3d 803, 805 (8thCir.
2001). In general, neither a plaintiff's unfamiliarity
with the legal process nor his lack of representation during
the applicable filing period merits equitable tolling.
Turner v. Johnson, 177F.3d 390, 392 (5th Cir. 1999).
See Cross-Bey v. Gammon, 322 F.3d 1012, 1015-16 (8th
Cir. 2003); Kreutzer v. Bowersox, 231 F.3d 460, 463
(8th Cir. 2000, cert. denied, 534 U.S. 863 (2001) (equitable
tolling not warranted in case of unrepresented prisoner
alleging lack of legal knowledge or legal resources). In
addition, "[i]neffective assistance of counsel generally
does not warrant equitable tolling." Beery v.
Ault, 312 F.3d 948, 950 (8th Cir.2002).
Petitioner has neither plead nor alleged any factors to
justify equitable tolling. Paragraph 18 of the Section 2255
Motion specifically directs a petitioner to give an
explanation if his petition is not timely. The instant
petition is completely void of any explanation. (Doc. 71,
p.12). The court also notes that the ...