United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison, U.S. Magistrate Judge
action, Petitioner Paul Henry moves, pursuant to 28 U.S.C.
§ 2255, to vacate, set aside or correct his sentence.
(Motion, ECF No. 99.) Following a guilty plea, Petitioner was
convicted of two counts of sexual exploitation of a minor;
the Court sentenced Petitioner to 180 months in prison.
(Judgment, ECF No. 83 at 1-2.) The First Circuit affirmed the
conviction on appeal. United States v. Henry, 827
F.3d 16 (1st Cir. 2016), cert. denied, 137 S.Ct. 374
alleges his counsel was ineffective because counsel failed to
argue that conduct did not involve interstate commerce, and
failed to argue the Court lacked subject matter jurisdiction.
(Motion at 4-6.) The Government moved for dismissal.
(Response, ECF No. 104.)
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
Factual Background and Procedural History
April 2015, Petitioner was convicted of two counts of sexual
exploitation of a minor, 18 U.S.C. § 2251(a), (e).
(Judgment at 1.) The Court sentenced Petitioner to a prison
term of 180 months on each of the counts, to run
concurrently, to be followed by terms of five years of
supervised release on each of the counts, to run
concurrently. (Id. at 2-3.)
appealed from the conviction on the two issues reserved by
agreement with the Government as part of Petitioner's
conditional guilty plea: “the district court's
determination that he was not entitled to raise a
‘mistake of age' defense; and the district
court's denial of his motion to suppress evidence found
or seized in connection with a search of Henry's motel
room.” Henry, 827 F.3d at 19. The First
Circuit affirmed. Id. On October 31, 2016, the
Supreme Court denied Petitioner's petition for a writ of
certiorari. Henry, 137 S.Ct. 374.
filed an unsigned motion on April 23, 2018. (Motion at 1,
13.) The Court ordered Petitioner to file a signed petition,
and Petitioner complied. (Order, ECF No. 100; Motion, ECF No.
101 at 13.)
Government filed a response in which it moved for dismissal
of Petitioner's section 2255 motion as
untimely. (Response, ECF No. 104.)
timeliness of a section 2255 motion is governed by section
2255(f), which provides:
A 1-year period of limitation shall apply to a motion under
this section. The limitation period shall run from the latest
(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 ...