Moore v. USA

Filing 1

OPINION AND ORDER: Moores § 2255 motion is DENIED and DISMISSED withprejudice. 77 I DECLINE to issue a certificate of appealability. The clerk shall enter final judgment accordingly. Signed by Chief Judge Philip P Simon on 7/26/2012. (cc: Moore)(rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
JUSTIN D. MOORE,
Defendant.

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2:05-cr-188 and
2:12-cv-281

OPINION AND ORDER
Before the Court is federal prisoner Justin D. Moore’s motion to vacate his conviction
and sentence pursuant to 28 U.S.C. § 2255. [DE 77.] Because Moore filed the motion well
outside of § 2255’s one-year statute of limitations, and because equity does not toll the
limitations period, his motion is denied.
Moore was indicted in 2005. Undercover agents had discovered him in an online
chatroom where he advertised “100% preTeenGirlSexPics.” An investigation revealed that
Moore ran a server that contained approximately 13,000 single-image files and 30 video files
containing child pornography, including pictures of girls as young as 5 years old. As the
administrator of this server, Moore allowed other users to access the images on the server in
exchange for uploading similar images or videos. Moore pled guilty to one count of distributing
child pornography and one count of receiving child pornography in violation of 18 U.S.C. §
2252(a)(2). He was sentenced to 210 months in prison – the low-end of the range under the
Federal Sentencing Guidelines – and judgment was entered on May 22, 2007. The Seventh
Circuit affirmed Moore’s conviction and sentence on May 28, 2008, and Moore did not petition
for a writ of certiorari to the United States Supreme Court. Now, on July 23, 2012 – more than
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four years after the Seventh Circuit’s decision – Moore filed his § 2255 motion to vacate his
conviction and sentence, alleging resentencing is necessary because of new holdings in recent
child pornography cases and because of a “lack of jurisdiction.”
A one-year statute of limitations applies to any motion to vacate, set aside, or correct a
sentence under § 2255, which runs from the latest of four events:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by the
governmental action in violation of the Constitution or laws of the United States
is removed, if the movant was prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f). Moore recognizes that none of the first three options will make his motion
timely, but he asserts that it is timely under the fourth option. He argues that “[a]t the end of
November, 2011, the Movant found the factual basis for the resentencing ground. Due to a lack
of knowledge, it took this time to fully research the case law and develop the claims. With that,
this motion is timely filed.” [DE 77 at 13.]
Section 2255(f)(4) only applies here if Moore can point to something that constitutes a
newly discovered “fact.” Moore’s argument is essentially that “multiple cases in recent years”
have changed the legal landscape for child pornography sentencing. But the cases he points to
are little more than various expressions of frustration with parts of the sentencing guidelines.
They do not constitute any real change in the law – much less a newly discovered fact.
Moreover, even assuming for the sake of argument that Moore’s correct about the legal

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landscape – i.e., that there has been some substantive legal change – it would not help him under
§ 2255(f)(4). Substantive legal changes can, in narrow instances, be facts under this section. For
instance, in Johnson v. United States, 544 U.S. 295 (2005), the Supreme Court determined that
the vacatur of a defendant's prior state court conviction constituted a new “fact” for purposes of
28 U.S.C. § 2255(f)(4). Id. at 302. The Court reasoned that because the vacatur of the prior
conviction was “subject to proof or disproof like any other factual issue,” it was a “fact
supporting the claim.” Id. at 307.
But courts have declined to expand this ruling to encompass every substantive change in
the law. See Lo v. Endicott, 506 F.3d 572, 575 (7th Cir. 2007) (finding that under §
2244(d)(1)(c), a parallel limitations provision to § 2255(f)(4), state court rulings that modify the
substantive law do not constitute a “factual predicate”). Likewise, an extension of Johnson is
not warranted here because none of the cases Moore cites constitute a “fact” pertaining to his
personal criminal history that alters or changes his legal status. Id. Construing every substantive
change in the law as a new “fact” for the purposes of § 2255(f)(4) would render meaningless the
limitations provision under § 2255(f)(3), which provides that § 2255 motions may be filed within
one year of a retroactive change in the law as pronounced by the Supreme Court. Accordingly,
because he has not pointed to any “facts” within the meaning of § 2255(f)(4), Moore's motion
cannot be deemed timely under that provision.
Moreover, Moore has not alleged any “extraordinary circumstances” that would warrant
equitable tolling of the statute of limitations. See Holland v. Florida, __U.S. __ 130 S.Ct. 2549,
2553 (2010) (holding that equitable tolling is only appropriate when an “extraordinary
circumstance” stood in the way of a timely filing); Johnson v. Chandler, 224 Fed. App'x. 515,
519 (7th Cir. 2007) (“[W]e have yet to identify a factual circumstance so extraordinary that it
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warrants equitable tolling.”).
Because I am denying Moore’s § 2255 motion, pursuant to Rule 11 of the Rules
Governing § 2255 Proceedings, I must issue or deny a certificate of appealability (“COA”).
Rule 11(a), Rules Governing Section 2255 Proceedings. In order to issue a COA where the
petition was dismissed on procedural grounds without addressing the underlying constitutional
claim, I must find: (1) that reasonable jurists would find it debatable whether the procedural
ruling was correct and (2) that reasonable jurists would find it debatable whether the petition
states a valid claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 48485 (2000). This is a threshold inquiry, so I need only address one component if that showing
will resolve the issue. Id. at 485. And I am mindful that courts should resolve procedural issues
first if their resolution will avoid the need to address constitutional questions. Id.
Here, reasonable jurists would agree that equitable tolling does not excuse Moore’s
untimely § 2255 motion. As discussed above, Moore has no way around the statute of
limitations, and he has not presented any extraordinary circumstances justifying equitable relief.
Thus, I decline to issue a certificate of appealability. If Moore wishes to appeal this Opinion and
Order, he must seek a certificate of appealability from the Court of Appeals under Federal Rule
of Appellate Procedure 22.
For the foregoing reasons, Moore’s § 2255 motion is DENIED and DISMISSED with
prejudice. [DE 77.] I DECLINE to issue a certificate of appealability. The clerk shall enter
final judgment accordingly.
SO ORDERED.
ENTERED: July 26, 2012.

s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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