United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY, MAGISTRATE JUDGE
MAURICE HICKS, JR., UNITED STATES DISTRICT COURT CHIEF JUDGE
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
AND PROCEDURAL BACKGROUND
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
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
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.
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.
Lindsay's Motion Construed as a Motion under 28 U.S.C.
Lindsay's § 2255 Motion is Time-Barred
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
(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 ...