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Henry v. United States

United States District Court, D. Maine

October 26, 2018

PAUL HENRY, 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 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 (2016).

         Petitioner 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.)

         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 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.)

         Petitioner 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.

         Petitioner 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.)

         The Government filed a response in which it moved for dismissal of Petitioner's section 2255 motion as untimely.[1] (Response, ECF No. 104.)

         II. Discussion

         The 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 of -
(1) the date on which the judgment of conviction becomes final;
(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 ...

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