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Goguen v. United States

United States District Court, D. Maine

February 7, 2019




         The Petitioner objects on various grounds to the Magistrate Judge's recommended decision to deny his habeas corpus petition, including his assertion that at his sentencing hearing, he did not intelligently, knowingly and voluntarily waive the right to contest an eight-level enhancement under the United States Sentencing Guidelines, that his current legal arguments are not barred by the statute of limitations because his current petition relates back to an earlier-filed document, that the Government waived its right to assert the statute of limitations bar because in addition to arguing the bar, it addressed the merits of his petition, that his petition fits within exceptions to the running of the statute of limitations, that the statute of limitations should be equitably tolled, and that he is actually innocent. The Court analyzes each contention and rejects them as unsupported by the record or incorrect on the law.

         I. BACKGROUND

         A. Criminal Cases

         1. United States v. Goguen - 1:11-cr-00003-JAW

         On January 12, 2011, a federal grand jury indicted Robert Frederick Goguen for failure to register as a sex offender. Indictment (ECF No. 1), 1:11-cr-00003-JAW. On July 13, 2011, Mr. Goguen admitted he committed the charged crime, Min. Entry (ECF No. 43), and on September 14, 2012, the Court sentenced him to thirty-seven months of incarceration, three years of supervised release, a $100 special assessment and no fine. J. (ECF No. 80); Am. J. (ECF No. 90). Mr. Goguen did not appeal his conviction or sentence to the Court of Appeals for the First Circuit.

         On August 16, 2013, the Government filed a petition on supervised release, alleging a violation of the sex offender treatment condition of his supervised release by downloading pornographic movies at the Penobscot County Judicial Center's law library. Pet. for Warrant or Summons for Offender under Supervision (ECF No. 96). On September 23, 2013, Mr. Goguen admitted the violation, and the Court sentenced him to five months of incarceration and thirty-one months of supervised release. Revocation J. (ECF No. 113). Mr. Goguen appealed this revocation judgment to the First Circuit claiming that his waiver of rights at the revocation hearing was not knowing and voluntary and that the Court erred in imposing a sex offender treatment condition as one of the conditions of his supervised release. J. of Court of Appeals for the First Circuit (ECF No. 142). On October 9, 2014, the First Circuit affirmed the judgment. Id.

         On November 13, 2015, the Government filed a second petition alleging that Mr. Goguen violated the terms of two conditions of supervised release by possessing child pornography on his computer. Pet. for Warrant or Summons for Offender under Supervision (ECF No. 144). On January 21, 2016, Mr. Goguen filed a memorandum challenging the applicability of the penalty provisions of 18 U.S.C. § 3583(k). Def.'s Mem. in Opp'n to the Gov't's Req. to Apply the Penalty Ranges under 18 U.S.C. § 3583(k) (ECF No. 163). After further briefing, on November 2, 2016, the Court issued an order, concluding that Mr. Goguen faced a maximum term of imprisonment on the revocation petition of two years. Order on Mem. in Opp'n to the Gov't's Req. to Apply the Penalty Ranges under 18 U.S.C. § 3583(k) (ECF No. 170).

         On January 22, 2017, Mr. Goguen filed a motion to suppress evidence from the supervised release proceeding. Def.'s Mot. to Suppress Evid. Regarding New Crim. Charges and Supervise[d] Release Revocation Hr'g (ECF No. 174). On May 5, 2017, the Magistrate Judge issued a recommended decision in which he recommended that the Court deny the motion. Recommended Decision on Mot. to Suppress (ECF No. 186). After Mr. Goguen objected to the recommended decision, the Court affirmed the recommended decision on June 19, 2017. Order Affirming the Recommended Decision of the Magistrate Judge (ECF No. 190). On September 15, 2017, Mr. Goguen admitted to the violations as alleged in the petition for revocation. Min. Entry (ECF No. 193).

         After multiple motions to continue the sentencing hearing, the hearing was scheduled for February 13, 2019 at the same time as the sentencing hearing on the new criminal charge in United States v. Goguen, 1:16-cr-00167-JAW. However, in this case and on the new criminal charge, on February 5, 2019, Mr. Goguen's counsel filed a motion for leave to withdraw as counsel citing a conflict of interest mandating his withdrawal. United States v. Goguen, 1:16-cr-00167-JAW, Def.'s Ex Parte Mot. for Leave to Withdraw as Counsel (ECF No. 109); United States v. Goguen, 1:11-cr-00003-JAW, Def.'s Ex Parte Mot. for Leave to Withdraw as Counsel (ECF No. 277). On February 7, 2019, the Court granted the motion to withdraw and continued the sentencing hearing on both cases. United States v. Goguen, 1:16-cr-00167-JAW, Order (ECF No. 110); United States v. Goguen, 1:11-cr-00003-JAW, Order (ECF No. 278).

         2. United States v. Goguen - 1:16-cr-00167-JAW

         Although not directly relevant to the pending objection, on December 14, 2016, a federal grand jury indicted Mr. Goguen for possession of child pornography, an alleged violation of 18 U.S.C. § 2252A. Indictment (ECF No. 1), 1:16-cr-00167-JAW. There was a delay between the indictment and the guilty plea because Mr. Goguen filed a motion to suppress evidence and a motion in limine. After these motions were resolved, on September 15, 2017, Mr. Goguen pleaded guilty to this charge. Min. Entry (ECF No. 64). Mr. Goguen's sentencing hearing was delayed while the Court considered his argument about the legal impact of his prior state of Connecticut conviction in 1996 for sexual assault in the second degree. See Def.'s Mem. in Opp'n to the App. of the Mandatory Minimum under 18 U.S.C. § 2252A(b)(2) (ECF No. 83); Gov't's Resp. to Def.'s Mem. in Opp'n to the App. of the Mandatory Minimum under 18 U.S.C. § 2252A(b)(2) (ECF No. 86); Def.'s Reply to Gov't's Resp. to App. of Mandatory Minimum (ECF No. 90). On November 16, 2018, the Court concluded that Mr. Goguen's prior Connecticut conviction constitutes a qualifying prior offense that triggers the mandatory ten-year imprisonment penalty under § 2252A(b)(2). Order on Def.'s Mem. in Opp'n to Appl. of the Mandatory Minimum Under 18 U.S.C. § 2252A(b)(2) (ECF No. 92).

         B. Robert Goguen v. United States - 1:17-cv-00492-JAW

          On December 15, 2017, Mr. Goguen filed a pro se motion to vacate, set aside or correct his sentence for his failure to register as a sex offender conviction pursuant to 28 U.S.C. § 2255. Mot. to Vacate, Set Aside or Correct Sentence (ECF No. 194). On December 21, 2017, the Magistrate Judge ordered Mr. Goguen to file his § 2255 motion on a proper form, Order to File Mot. to Vacate, Set Aside or Correct Sentence on Proper Form (ECF No. 195). On December 29, 2017, Mr. Goguen filed additional paperwork in support of his challenge to his original sentence, his first revocation, and the decision on his appeal. Supplement to Mot. to Vacate, Set Aside or Correct Sentence (ECF No. 199). On January 26, 2018, the Magistrate Judge ordered the Government to respond to Mr. Goguen's 28 U.S.C. § 2255 motion. Order to Answer (ECF No. 201). After Mr. Goguen amended his § 2255 motion, the Government answered and moved to dismiss his motion on March 26, 2018. Gov't's Mot. to Summarily Dismiss Pet'r's § 2255 Pet., Resp. to § 2255 Pet., and Resp. to Pet'r's Disc. Filing (ECF No. 220) (Gov't's Opp'n). On April 20, 2018, Mr. Goguen filed a reply to the Government's response. Reply to Gov't's Resp. to 2255 (ECF No. 227). On September 24, 2018, Mr. Goguen filed an amended § 2255 motion. Second Further Amendment to [§] 2255 (ECF No. 252).

         On September 28, 2018, the Magistrate Judge recommended that the Court deny Mr. Goguen's § 2255 motion. Recommended Decision on 28 U.S.C. § 2255 Motion (ECF No. 253) (Recommended Decision). After the Court granted Mr. Goguen's requests for an extension of time to file his objection to the Recommended Decision, Letter (ECF No. 254); Order (ECF No. 255); Mot. to Extend Time to File Obj. to Recommended Decision (ECF No. 258); Order (ECF No. 259), on November 27, 2018, Mr. Goguen filed his objection. Obj. to the Magistrate[']s Recommendation (ECF No. 261) (Pet'r's Obj.). On December 10, 2018, the Government responded to Mr. Goguen's objection, directing the Court to its previous arguments raised in its opposition memorandum to Mr. Goguen's § 2255 motion. Gov't's Resp. to Pet'r's Obj. to Magistrate Judge's Recommended Decision (ECF No. 263).


         The Magistrate Judge concluded that neither Mr. Goguen's challenge to his conviction nor to his revocation was timely under any of the provisions of 28 U.S.C. § 2255(f).[1] Recommended Decision at 6-7 (“[T]he judgment of conviction was entered on January 31, 2013; because Petitioner did not appeal, the judgment became final 14 days later, on February 14, 2013 . . . [t]he limitation period for filing a section 2255 motion . . . expired one year later . . . Petitioner filed his section 2255 motion in 2017 . . ..”); (“The revocation judgment became final on January 7, 2015, which was 90 days after the October 9, 2014, [the] date on which the First Circuit issued its decision [on] Petitioner's appeal from the revocation judgment . . . [t]he limitation period expired one year later . . . [Petitioner's] December 2017 filing was untimely”). The Magistrate Judge determined that Mr. Goguen had not asserted any facts to implicate subsections (2)-(4) of section 2255. Id. at 7.

         The Magistrate Judge dismissed Mr. Goguen's equitable tolling arguments for the relevant limitation periods. Id. The Magistrate Judge acknowledged that equitable tolling, in appropriate instances, can toll § 2255(f)'s one-year limitation period. Id. at 8 (quoting Ramos-Martínez v. United States, 638 F.3d 315, 321, 322 (1st Cir. 2011)). The Magistrate Judge noted that for equitable tolling to apply, it “must be based on circumstances that prevented timely filing, allegations in support of equitable tolling necessarily must relate, at least in part, to circumstances that existed during the limitation period.” Id. at 9 (citing English v. United States, 840 F.3d 957, 958 (8th Cir. 2016)). After a thorough review of Mr. Goguen's motion, the Magistrate Judge concluded that “he fails to allege why he was unable to file his section 2255 motion during other periods of time within the relevant limitation periods, [February 14, 2013, to February 14, 2014, for his judgment of conviction, and from January 7, 2015, to January 7, 2016, for his revocation judgment]”. Id.


         A. Mr. Goguen's Objection

         In his twenty-five-page objection, Mr. Goguen advances several bases for why the Magistrate Judge's Recommended Decision was incorrect. See generally Pet'r's Obj. at 1-25. He asserts “background corrections” to the Magistrate Judge's Recommended Decision. Id. at 1-2. Specifically, Mr. Goguen contends that the Magistrate Judge speculates that he “willfully, intel[l]igently, and voluntarily waived” the right to contest the eight-point enhancement at his sentencing and he makes various disparaging remarks about his counsel at his sentencing hearing. Id. at 1.

         Next, Mr. Goguen claims he was not untimely in challenging his revocation judgment because he mistitled a previous motion to the Court, Notice for Notice of Appeal Consideration and Possible Appointment of Counsel (ECF No. 133) (Notice for Notice of Appeal), that this previous motion is “nearly identical in nature, context, and substance” to his § 2255 motion. Id. at 2-3. Mr. Goguen acknowledges that the Government asserts that his motion is untimely, but he says that the Government waived this argument because it also directed the Court to the merits of his motion. Id. at 3 (citing Wood v. Milyard, 132 S.Ct. 1826 (2012)). Under the header “Statutory Exceptions [§] 2255(f)(3), ” Mr. Goguen states he is not sure what new rights might be available for him but that he did previously raise two qualifying rights. Id. at 4 (citing McCoy v. Louisiana, 138 S.Ct. 1500 (2018); Montgomery v. Louisiana, 136 S.Ct. 718 (2016)). He argues these cases satisfy § 2255(f)(3). Id.

         Mr. Goguen claims that he was denied the assistance of counsel at various critical stages of his criminal case because he says his court appointed counsel was “disloyal.” Id. at 5. He argues that his counsel “over[ode] his decision to withdraw his [innocent] plea . . ..” Id. Mr. Goguen contends that the prosecution and his attorney plotted to deprive him of his constitutional rights and that the prosecutor lied about his eight-point enhancement. Id. at 6. He says such conduct satisfies § 2255(f)(4). Id.

         Mr. Goguen avers that the Magistrate Judge's analysis supporting his conclusion that equitable tolling is inapplicable to his motion is incorrect. Id. at 8. Mr. Goguen says that “[t]he relevant question for equitable tolling purposes is w[h]ether petitioner took some type of action in pursuing his rights”, id. (citing Holes v. Spencer, 822 F.3d 609 (1st Cir. 2016)), and that “[a]ttorney misconduct and negligence warrants equitable tolling.” Id. (citing Holland v. Florida, 560 U.S. 631, 653 (2010); Ramos-Martinez v. United States, 638 F.3d 315, 323-24 (1st Cir. 2001) (alterations in ordering)). As for evidence that he was pursuing his rights between February 14, 2013 to February 14, 2014 and from January 7, 2015 to January 7, 2016, Mr. Goguen says on February 21, 2013, his counsel sent him civil rights paperwork but had not completed his “criminal document request”; and that from February 14, 2013 to May 11, 2013 he was “in solitary confinement with no documents, [or] access to proper materials . . ..” Id. at 8-9. Mr. Goguen blames the Court complimenting his attorney as the reason why he did not follow through on his request for new counsel. Id. at 9 (citing Appointment of Counsel (ECF No. 109)). Mr. Goguen argues his “disloyal attorney never proceeded in any manner concerning [his] desires for an appeal.” Id. at 10.

         Mr. Goguen lists various claimed personal impediments to support his equitable tolling argument, and argues that his lack of attorney-client relationship constitutes a sufficient external impediment to equitably toll § 2255(f)'s one-year filing period. Id. at 11-12. Mr. Goguen contends that he meets the “miscarriage of justice” exception as his SORNA violation conviction was invalid because he did not violate SORNA “knowingly.” Id. at 13-15. Mr. Goguen disputes the Magistrate Judge's conclusion that the Court lacked jurisdiction over his claims stemming from his 1996 Connecticut conviction “because [he] does not allege he was in custody under the 1996 judgment when he filed his habeas petition in this Court; the prosecution version states he was released from ‘custody' . . ..” Id. at 15 (citing Recommended Decision at 1-2 n.1). He claims that he is actually innocent because his 1996 Connecticut conviction is unconstitutional and void, and therefore he is also innocent of his SORNA violation conviction. Id. at 16. Mr. Goguen attacks the special conditions imposed on him, arguing that it was “an abuse of authority to impose, without court review, independent conditions, judgment then that cedes the judiciary's exclusive sentencing power to a probation officer . . ..” Id. at 17. Mr. Goguen claims that the Magistrate Judge never read his motion and therefore overlooked various parts of his arguments. Id. at 18.

         Mr. Goguen asks for a certificate of appealability if the Court were to find his arguments unpersuasive. Id. at 20. Lastly, Mr. Goguen conducts a plain error review of his sentencing guideline calculations to illustrate that there was a miscalculation warranting relief under Rule 52(b). Id. at 20-22.

         B. ...

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