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United States v. Bivens

United States District Court, W.D. Louisiana, Lake Charles Division

March 25, 2018

UNITED STATES OF AMERICA
v.
SETH RYAN BIVENS

          MINALDI JUDGE

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before the court is a Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255 by defendant Seth Ryan Bivens. Doc. 72. The government has filed a response in opposition and Bivens has filed a reply. Docs. 82, 83. Accordingly, the matter is now ripe for review.

         This motion was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636. For reasons stated below, IT IS RECOMMENDED that the motion be DENIED and DISMISSED WITH PREJUDICE as time-barred under § 2255(f).

         I.

         Background

         Pursuant to a plea agreement, Bivens was convicted in this court of one count of receiving child pornography, a violation of 18 U.S.C. § 2252A(a)(2)(A), on November 1, 2013. Docs. 25, 26; see doc. 1 (indictment). He was sentenced on October 16, 2014, to a 188 month term of imprisonment, and the remaining counts of the indictment, which all related to child pornography, were dismissed at the government's motion. Docs. 46, 48. Bivens filed a timely notice of appeal, pro se, but his appeal was dismissed by the Fifth Circuit for want of prosecution on December 4, 2014. Docs. 50, 54. He then filed a second pro se notice of appeal on April 30, 2015. Doc. 59. This appeal was dismissed by the Fifth Circuit for want of prosecution on June 16, 2015, then reopened on July 28, 2015, before being dismissed a final time - again, for want of prosecution - on November 18, 2015. Docs. 64, 65, 70.

         Bivens filed the instant pro se motion to vacate on November 1, 2016. See doc. 72, p. 13 (filing date). He seeks relief based on multiple claims of ineffective assistance of counsel and an allegation that the Sentencing Guidelines provision applicable to his conviction violates the Eighth Amendment. Doc. 72, att. 1. He requests an evidentiary hearing in connection with his claims. Id.

         II.

         Law and Analysis

         A. Scope of Review

         Following conviction and exhaustion or waiver of the right to appeal, the court presumes that a defendant “stands fairly and finally convicted.” United States v. Shaid, 937 F.2d 228, 231- 32 (5th Cir. 1991) (quoting United States v. Frady, 102 S.Ct. 1584, 1592 (1982)). Relief under § 2255 “is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.”[1] United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).

         A motion filed under § 2255 is subject to a one-year limitations period, running from the latest of the following dates: (1) when the judgment became final; (2) when a government-created impediment to filing the motion was removed; (3) when the United States Supreme Court initially recognized and made retroactively applicable the legal predicate for the motion; or (4) when the petitioner could have discovered, through due diligence, the factual predicate for the motion. 28 U.S.C. § 2255(f). A judgment becomes final, under this section, when the Supreme Court “affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.” Clay v. United States, 123 S.Ct. 1072, 1075-76 (2003).

         The limitations period for § 2255 motions is not a jurisdictional bar, and is therefore subject to equitable tolling. United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). Equitable tolling is only appropriate, however, in “rare and exceptional circumstances.” Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002). It “is not ...


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