United States71 v. Garretson

          MAGISTRATE JUDGE REPORT AND RECOMMENDATION

          JAMES R. MARSCHEWSKI, UNITED STATES 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. 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.

         I. Background

         Clarence 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).

         On 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.

         The 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.

         Garretson 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. (Id.)

         Garretson 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.

         Thereafter, 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).

         II. Discussion

         A. Statute of Limitations

         Under 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).

         A 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 sentence.

         Garretson 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 equitable tolling.

         The 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.

         A 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).

         The 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 ...