United States District Court, D. Maine
ORDER AFFIRMING RECOMMENDED DECISION ON 28 U.S.C.
§ 2255 MOTION
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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.
United States v. Goguen - 1:11-cr-00003-JAW
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
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.
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).
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).
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).
United States v. Goguen - 1:16-cr-00167-JAW
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).
Robert Goguen v. United States -
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).
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.
THE RECOMMENDED DECISION
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). 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.
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.
THE POSITIONS OF THE PARTIES
Mr. Goguen's Objection
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.
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.
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.
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.
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
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.