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United States v. Lindsay

United States District Court, W.D. Louisiana, Shreveport Division

December 22, 2017

UNITED STATES OF AMERICA
v.
DAVID LINDSAY

          HORNSBY, MAGISTRATE JUDGE

          MEMORANDUM RULING

          S. MAURICE HICKS, JR., UNITED STATES DISTRICT COURT CHIEF JUDGE

         Before the Court is Petitioner David Lindsay's (“Lindsay”) Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Record Document 882). The Government filed a response to Lindsay's motion on December 6, 2016. See Record Document 893. For the reasons contained in the instant Memorandum Ruling, Lindsay's § 2255 Motion is DENIED.

         FACTUAL AND PROCEDURAL BACKGROUND

         On November 9, 2011, the defendant was charged in a Fourth Superseding Indictment with one count of engaging in a child exploitation enterprise, in violation of 18 U.S.C. § 2252A(g) (Count 1); one count of conspiracy to advertise the distribution of child pornography, in violation of 18 U.S.C. §§ 2251(d)(1) and (e) (Count 2); one count of conspiracy to distribute child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1) (Count 3); and one count of forfeiture, pursuant to 18 U.S.C. § 2253(a)(3) (Count 5). See Record Document 506. On February 16, 2012, Lindsay pleaded guilty to Count 1. See Record Document 642. The factual stipulation offered in connection with Lindsay's guilty plea reflects he participated in Dreamboard, an Internet-based, members-only bulletin board designed to facilitate the distribution of child pornography amongst its members. See Record Document 644-2 at 1. While a member of Dreamboard, Lindsay made 425 posts to the Internet bulletin board. See id. at 4. He was classified as a “Super VIP” member, which was the third highest membership category (out of six total categories). See id.

         On August 1, 2012, Lindsay was sentenced to 262 months imprisonment, the low end of the advisory range. See Record Document 725. Judgment was entered on August 8, 2012. See Record Document 727. Lindsay did not file a direct appeal, nor did he file a petition for a writ of certiorari. On September 26, 2016, Lindsay filed a “Petition for Extension in Filing 2255, ” in which he sought an extension of time in which to file a “2255 for a Minor Role Reduction under the recently amended [U.S.S.G.] 3B1.2 . . . .” See Record Document 876. The court denied that motion on the ground that “[t]he deadline to a file a 2255 motion is set by statute and cannot be extended by motion.” Record Document 878.

         On October 24, 2016, Lindsay filed this motion. See Record Document 882. The certificate of service on that motion is dated October 19, 2016, and the envelope in which it was sent is postmarked October 20, 2016. See id. On November 3, 2016, Lindsay filed a “supplemental” § 2255 motion. See Record Document 888. Though different in form from Lindsay's initial filing, it is substantively the same. The government filed its response in opposition to Lindsay's § 2255 motion on December 6, 2016. See Record Document 893.

         LAW AND ANALYSIS

         Lindsay seeks relief on three grounds: (1) that he is entitled to retroactive application of Amendment 794 to the U.S. Sentencing Guidelines, which clarifies the circumstances under which the “mitigating role” reductions in U.S.S.G. § 3B1.2 apply (“Ground One claim”); (2) that his sentence is disproportionately severe compared to sentences imposed on defendants prosecuted after him in other jurisdictions (“Ground Two claim”); and (3) that he was improperly denied an extra one-point reduction for acceptance of responsibility (“Ground Three claim”). See Record Document 882. He requests this Court “bring his sentence in accordance with others” and award him “any point reduction or other relief the court deems appropriate.” Id. As to all three arguments, Lindsay's motion is time-barred. Even if Lindsay's Ground One claim is construed as a motion for sentence reduction under 18 U.S.C. § 3582(c)(2), his claim is not cognizable.

         I. Lindsay's Motion Construed as a Motion under 28 U.S.C. § 2255

         i. Lindsay's § 2255 Motion is Time-Barred

         If Lindsay's motion is construed as a motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255, it is time-barred. Motions filed under 28 U.S.C. § 2255 are subject to a one-year statute of limitations, which 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 ...

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