Opinion
CRIMINAL ACTION NO. 1:14-cr-00431-AT-JKL-1 CIVIL ACTION NO. 1:20-cv-00074-AT-JKL
02-13-2020
JOHN KATZ, BOP # 66505-019 Movant, v. UNITED STATES OF AMERICA, Respondent.
MOTION TO VACATE 28 U.S.C. § 2255 FINAL REPORT AND RECOMMENDATION
Movant John Katz, a federal prisoner currently confined in the Federal Correctional Institution Coleman-Low in Sumterville, Florida, has filed a pro se 28 U.S.C. § 2255 motion to vacate, challenging his 2017 conviction in this Court for attempted enticement of a minor to engage in unlawful sexual activity. (Doc. 35.) The matter is before the Court for a preliminary review pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. Summary dismissal of a § 2255 motion is proper "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief . . . ." 28 U.S.C. foll. § 2255, Rule 4(b). For the following reasons, IT IS RECOMMENDED that the § 2255 motion be DISMISSED as time-barred.
I. DISCUSSION
A. Procedural History
In 2014, a federal grand jury returned an indictment charging Movant with one count of using a facility of interstate commerce to attempt to knowingly persuade, induce, or entice a minor to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b) ("Count 1"). (Doc. 1 at 1-2.) Ultimately, Movant pled guilty to Count 1 without the benefit of a written plea agreement. (See Doc. 26.) On January 18, 2017, U.S. District Judge Amy Totenberg entered a final judgment sentencing Movant to 120 months' imprisonment. (Doc. 32 at 2.) Movant did not pursue a direct appeal of conviction and sentence.
B. The 28 U.S.C. § 2255 Motion
Movant executed the instant § 2255 motion on January 2, 2020. (Doc. 35.) In his motion to vacate, Movant indicates that he wishes to raise three claims for relief:
Under the federal "prison mailbox rule," a pro se postconviction filing is deemed to be filed on the date it is delivered to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 275-76 (1988).
Movant's claims have been restated for the sake of clarity.
1. his plea counsel was ineffective for failing to advise him of his rights under the Confrontation Clause of the Sixth Amendment;(Id. at 1-2.) Specifically, Movant argues that he would not have pled guilty if he had been advised of his Sixth Amendment confrontation rights. (Id. at 1.) Movant also argues that he is "legally innocent" of his § 2422(b) conviction because courts have interpreted "minor" as used in the statute to include fictitious persons. (Id. at 1-2, 7.) Movant argues that such an interpretation of § 2422(b) violates the Confrontation Clause because it is not possible to confront a fictitious minor. (Id. at 1-2.) Movant also appears to generally assert that the defense of necessity would excuse his conduct. (Id. at 2.)
2. the statute of conviction is unconstitutional under the Confrontation Clause; and
3. his conduct was excusable by virtue of necessity.
Movant does not specifically address the timeliness of his § 2255 petition. Instead, Movant argues that the one-year statute of limitations in § 2255(f) violates the Suspension Clause, U.S. Const. Art. I, § 9, cl. 2, and is unconstitutional. (Id. at 2.) Accordingly, Movant request that this Court review his § 2255 motion on the merits and vacate his conviction. (Id. at 3.)
C. Analysis
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year statute of limitations for filing a § 2255 motion that begins to run from the latest of four possible triggering events, including "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). When a defendant does not appeal his conviction or sentence, the judgment of conviction becomes final when the time for seeking direct appellate review expires. Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011).
Here, Movant's conviction became final on February 2, 2017, after the expiration of the 14-day time period for filing a notice of appeal. See Fed. R. App. P. (4)(b)(1)(A). Movant then had until February 2, 2018, to file a timely § 2255 motion. Consequently, the instant § 2255 motion, filed on January 2, 2020, is untimely.
Movant's argument that the AEDPA's limitation period is per se unconstitutional under the Suspension Clause is foreclosed by binding precedent. Every federal appellate court that has addressed the issue, including the Eleventh Circuit Court of Appeals, has determined that a one-year statute of limitations for filing federal collateral attacks does not violate the Constitution. See, e.g., Wyzykowski v. Dep't of Corr., 226 F.3d 1213, 1217 (11th Cir. 2000) (holding that § 2244(d)'s one-year limitation period applicable to petitions under 28 U.S.C. § 2241 is not an unconstitutional suspension of the writ of habeas corpus); Delaney v. Matesanz, 264 F.3d 7, 11-12 (1st Cir. 2001) (holding "that the AEDPA's one-year limitation period does not, as a general matter, offend the Suspension Clause") (collecting cases).
The Eleventh Circuit has suggested that the AEDPA's one-year limitation period might violate the Suspension Clause if a prisoner could make a showing of actual innocence. Wyzykowski, 226 F.3d at 1218-19. Similarly, the Supreme Court has held that "a credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief." McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). To state a credible claim of actual innocence, a movant must present new reliable evidence that was not presented at trial showing that "it is more likely than not that no reasonable juror would have found [the movant] guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 324, 327 (1995).
Here, Movant's assertion of "legal innocence" is insufficient to invoke the actual-innocence exception to the AEDPA's statute of limitations. See McKay v. United States, 657 F.3d 1190, 1197 (11th Cir. 2011) ("[F]or purposes of the actual innocence exception, 'actual innocence' means factual innocence, not mere legal insufficiency.") (quotation omitted) (emphasis in original). Critically, Movant has not offered any new, reliable evidence of his factual innocence of the crime of conviction." See Schlup, 513 U.S. at 324, 327. Movant does not otherwise allege any grounds for equitable tolling of the limitation period. See Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (per curiam) (noting that equitable tolling is appropriate when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with due diligence). Accordingly, IT IS RECOMMENDED that the § 2255 motion be DISMISSED as time-barred.
II. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings, "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. . . . If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." Section 2253(c)(2) states that a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." A substantial showing of the denial of a constitutional right "includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the [motion to vacate] should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
When the district court denies a [motion to vacate] on procedural grounds without reaching the prisoner's underlying constitutional claim . . . a certificate of appealability should issue only when the prisoner shows both that jurists of reason would find it debatable whether the [motion] states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.Jimenez v. Quarterman, 555 U.S. 113, 118 n.3 (2009) (citing Slack, 529 U.S. at 484) (internal quotation marks omitted).
A certificate of appealability should be denied because the resolution of the issues presented is not debatable. If the District Court adopts this recommendation and denies a certificate of appealability, Movant is advised that he "may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22." 28 U.S.C. foll. § 2255, Rule 11(a).
III. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the § 2255 motion be DISMISSED as time-barred under Rule 4(b) of the Rules Governing Section 2255 Proceedings, and that no certificate of appealability issue.
The Clerk of Court is DIRECTED to terminate the referral to the undersigned United States Magistrate Judge.
SO RECOMMENDED this 13th day of February, 2020.
/s/_________
JOHN K. LARKINS III
United States Magistrate Judge