United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
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.
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).
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,
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.
Scope of Review
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.” United States v. Vaughn, 955 F.2d
367, 368 (5th Cir. 1992).
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).
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 ...