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

JOHN C. NIVISON, 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:

28 U.S.C. § 2255(f).

Pursuant to subsection 2255(f)(1), Petitioner was required to file his motion within one year of the final judgment. In this case, the judgment became final following the expiration of the 90-day period within which Petitioner could have filed, but did not file, a certiorari petition with the United States Supreme Court following the First Circuit's decision on his appeal. See Sup. Ct. R. 13 (certiorari petition must be filed within 90 days after entry of judgment); Jiminez v. Quarterman, 555 U.S. 113, 119 (2009) (noting that if a federal prisoner does not seek review in the Supreme Court, the conviction is final when "`the time for filing a certiorari petition expires'") (quoting Clay v. United States, 537 U.S. 522, 527 (2003)). The limitation period began to run on November 26, 2015, which was 90 days after the August 28, 2015, entry of the First Circuit's judgment in Petitioner's appeal, and it expired one year later, i.e., before the motion was signed or filed. Petitioner's motion, therefore, was not filed within one year of the final judgment. Petitioner's motion is not timely under subsection 2255(f)(2) or (f)(4), given that Petitioner has not alleged the Government created an impediment to the filing of a motion, or that he has recently discovered facts that support a claim.3

Because Petitioner cites the Supreme Court's 2017 decision in Nelson as the basis for his motion, Petitioner evidently believes that he timely filed his motion in accordance with subsection 2255(f)(3). (Motion at 4; Reply at 1.) Petitioner's claim fails under subsection 2255(f)(3), however, because even if the Court were to assume that Nelson applies retroactively to an initial petitioner under section 2255,4 the Court's holding in Nelson does not support Petitioner's substantive claim for relief.

In Nelson, the Supreme Court held that a Colorado law that provided for the State's retention of "conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence . . . offends the Fourteenth Amendment's guarantee of due process." 137 S. Ct. at 1252. The Supreme Court did not decide or address the issue Petitioner raises, i.e., whether it is a violation of due process to enhance a sentence based on unconvicted or uncharged conduct.5 In fact, Nelson does not alter well-settled precedent that a sentencing court's use of relevant uncharged conduct does not violate due process:

United States v. Gaffney-Kessell, 772 F.3d 97, 101 (1st Cir. 2014) (concluding the sentencing court may take into account unconvicted sexual conduct under USSG § 4B1.5(b)). In United States v. Cox, 851 F.3d 113 (1st Cir. 2017), the First Circuit noted: "[W]e have previously considered, and rejected, arguments that the Fifth Amendment's Due Process Clause and the Sixth Amendment right to a jury trial prohibit the finding of sentencing facts by a preponderance of the evidence." 851 F.3d at 120 (citing, inter alia, Watts, 519 U.S. at 156; United States v. Munyenyezi, 781 F.3d 532, 544 (1st Cir. 2015) ("[A] judge can find facts for sentencing purposes by a preponderance of the evidence, so long as those facts do not affect either the statutory minimum or the statutory maximum.") (citations omitted)).6 Petitioner thus cannot rely on Nelson to support the argument that his section 2255 motion is timely under section 2255(f)(3).

In short, Petitioner's motion was not filed within the applicable limitation period set forth in 28 U.S.C. § 2255(f). Petitioner, therefore, cannot prevail on his claim.7

III. CONCLUSION

Based on the foregoing analysis, I recommend the Court find that an evidentiary hearing is not warranted under Rule 8 of the Rules Governing Section 2255 Cases. In addition, I recommend the Court deny Petitioner's motion for habeas relief under 28 U.S.C. § 2255. I further recommend that the Court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Cases because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).

NOTICE

Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.