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Rossignol v. United States

United States District Court, D. Maine

July 6, 2018

BENJAMIN A. ROSSIGNOL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          John C. Nivison U.S. Magistrate Judge

         In this action, Petitioner Benjamin A. Rossignol moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 60.) Following a guilty plea, Petitioner was convicted of transporting or shipping child pornography and of possession of child pornography; the Court sentenced Petitioner to 240 months in prison on the transportation charge, and to a consecutive 24 months on the possession charge. (Judgment, ECF No. 40 at 1-2.) The First Circuit affirmed the sentence on appeal. United States v. Rossignol, No. 14-2176 (1st Cir. Aug. 28, 2015).

         Petitioner contends he is entitled to relief following Nelson v. Colorado, --- U.S. ---, 137 S.Ct. 1249 (2017). (Motion at 4.) Petitioner argues that under Nelson, he should not have been subject to a sentencing enhancement for uncharged conduct.[1] (Motion at 4.)

         The Government maintains Petitioner's motion is barred by the applicable statute of limitations set forth in 28 U.S.C. § 2255(f). (Response, ECF No. 64 at 1.) The Government thus seeks summary dismissal of Petitioner's motion.

         Following a review of Petitioner's motion, the Government's request for dismissal, and the record, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.

         I. Factual Background and Procedural History

         In February 2014, Petitioner was indicted for transporting child pornography, 18 U.S.C. §§ 2252A(a)(1), 2256(8)(A) (Count 1); and for possession of child pornography, 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), 2256(8)(A). (Indictment, ECF No. 5 at 1-2.) Following his guilty plea in May 2014, Petitioner was sentenced in October 2014. (Plea Tr., ECF No. 54 at 1; Sentencing Tr., ECF No. 51 at 1.) At sentencing, the Court found, as part of its guidelines calculations, a five-level increase in the offense level, based on a pattern of activity, pursuant to USSG § 2G2.2(b)(5). (Sentencing Tr. at 24.)

         Petitioner filed a notice of appeal. (Notice, ECF No. 46.) Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), accompanied by a motion to withdraw; the First Circuit concluded there was “no non-frivolous basis for appeal, ” and it therefore granted counsel's motion to withdraw and summarily affirmed the judgment. Rossignol, No. 14-2176 (1st Cir. Aug. 28, 2015).

         Petitioner asserts he placed his section 2255 motion in the prison mailing system on March 18, 2018. (Motion at 12.)

         The Government has moved for summary dismissal citing Petitioner's failure to file the section 2255 motion within the limitation period set forth in 28 U.S.C. § 2255(f). The Government argues that Petitioner clearly filed the motion after the expiration of the one-year limitation period, and that Petitioner cannot point to any facts that would support a finding that the limitation period had been tolled.[2] (Response, ECF No.64 at 2-4.)

         II. Discussion

         Petitioner contends that Nelson should be applied retroactively, and that it entitles him to relief because, under Nelson, the Court's finding of a five-level increase in the offense level for a pattern of activity, pursuant to USSG § 2G2.2(b)(5), penalizes Petitioner for uncharged conduct in violation of his right to due process. (Motion at 4; Reply at 1-2.) Petitioner's section 2255 motion is not timely under any of the provisions of section 2255(f). Title 28 U.S.C. § 2255(f) provides:

         A 1-year period of limitation shall apply to a motion under this section. The limitation period ...


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