Baumhover v. USA

Filing 5

ORDER (14-CR-1004-LRR): The movant's 1 Pro Se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is denied. A certificate of appealability is denied. The 2 Pro Se Motion for Leave to Proceed in forma pauperis and 3 Pro Se Motion for Transcripts are denied as moot. Signed by Chief Judge Linda R Reade on 11/10/2016. (copy w/NEF mailed to Pltf) (jjh) (Main Document 5 replaced on 11/10/2016 with corrected caption) (jjh).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION

ROBERT BAUMHOVER,
Movant,

No. C16-1004-LRR
No. CR14-1004-LRR

vs.
UNITED STATES OF AMERICA.

ORDER

This matter appears before the court on Robert Baumhover’s motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1).1

Robert

Baumhover (“the movant”) filed such motion on February 8, 2016. For the following
reasons, the movant’s 28 U.S.C. § 2255 motion shall be denied and a certificate of
appealability shall be denied.2
1

If a prisoner is in custody pursuant to a sentence imposed by a federal court and
such prisoner claims “that the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack, [the prisoner] may move the court which imposed
the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255; see also
Daniels v. United States, 532 U.S. 374, 377 (2001).
2

No response from the government is required because the 28 U.S.C. § 2255
motion and file make clear that the movant is not entitled to relief. See 28 U.S.C. § 2255;
Rule 4(b), Rules Governing Section 2255 Proceedings. Similarly, an evidentiary hearing
is not necessary. See Rule 8, Rules Governing Section 2255 Proceedings; see also Engelen
v. United States, 68 F.3d 238, 240-41 (8th Cir. 1995) (stating that district court may
summarily dismiss a motion brought under 28 U.S.C. § 2255 without an evidentiary
hearing “if (1) the . . . allegations, accepted as true, would not entitle the [movant] to
(continued...)

The AEDPA contains a one year period of limitation during which a 28 U.S.C. §
2255 motion must be filed.3 The statute of limitation begins to run from the latest of four
circumstances. The first of these circumstances is the date on which the judgment of
conviction became final. Here, the movant’s conviction became “final” on November 2,
2014, that is, the last date he could have filed a timely petition for a writ of certiorari. See
Clay v. United States, 537 U.S. 522, 527 (2003) (“Finality attaches when [the United
States Supreme Court] affirms a conviction on the merits on direct review or denies a
petition for a writ of certiorari, or when the time for filing a certiorari petition expires.”);
Sup. Ct. R. 13 (setting forth time for petitioning for a writ of certiorari). Given such date,

(...continued)

relief, or (2) the allegations cannot be accepted as true because they are contradicted by
the record, inherently incredible, or conclusions rather than statements of fact”); United
States v. Oldham, 787 F.2d 454, 457 (8th Cir. 1986) (stating that district court is given
discretion in determining whether to hold an evidentiary hearing on a motion under 28
U.S.C. § 2255).
3

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 making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized
by the Supreme Court, if that right has been newly 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.
2

the movant needed to file the instant motion by no later than November 2, 2015. The
movant did not file his motion to vacate, set aside or correct sentence pursuant to 28
U.S.C. § 2255 until February 8, 2016, which is months past the last date it properly could
have been filed.
Further, the movant is unable to rely on any of the remaining three timeliness
provisions set forth in 28 U.S.C. § 2255. Although the movant cites to the Supreme
Court’s decision in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551, 192 L. Ed.
2d 569 (2015), that case does not give rise to relief when the facts of this case are
considered. Indeed, the movant committed an offense under 18 U.S.C. § 2252A, and such
statute is not unconstitutionally vague. See, e.g., United States v. O’Malley, 854 F.2d
1085, 1087 (8th Cir. 1988) (rejecting unconstitutionally vague argument); see also United
States v. Thompson, 653 F.3d 688, 696 (8th Cir. 2011) (observing that statute of
conviction provided notice of what materials would be “sexually explicit”). Further, there
is no basis to extend the ruling of Johnson to USSG §2G1.1 or USSG §2G2.2. See
Donnell v. United States, 826 F.3d 1014, 1017 (8th Cir. 2016) (refusing to create “a
second rule that would apply Johnson and the constitutional vagueness doctrine to a
provision of the advisory sentencing guidelines”); Richardson v. United States, 623 F.
App’x 841, 842-43 (8th Cir. 2015) (denying authorization to file a successive motion to
vacate, set aside or correct sentence under 28 U.S.C. § 2255 with respect to movant’s
challenge to his sentencing guidelines calculations because any extension of the rule in
Johnson is not a new substantive rule under Teague v. Lane, 489 U.S. 288, 109 S. Ct.
1060, 103 L. Ed. 2d 334 (1989)); see also United States v. Maurer, 639 F.3d 72, 78 n.4
(3d Cir. 2011) (holding that USSG §2G2.2(b)(4) was not unconstitutionally vague because
it gave “a person of ordinary intelligence fair notice of the conduct to which it applies” and
did not “authorize or encourage arbitrary and discriminatory enforcement”).
The Eighth Circuit Court of Appeals has held that the doctrine of equitable tolling
applies to 28 U.S.C. § 2255 motions. See United States v. Martin, 408 F.3d 1089, 10923

93 (8th Cir. 2005). However, equitable tolling only applies “where ‘extraordinary
circumstances’ beyond a prisoner’s control prevent timely filing.”

Id. at 1093 (citing

Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001), Kreutzer v. Bowersox, 231 F.3d 460,
463 (8th Cir. 2000), and Paige v. United States, 171 F.3d 559, 561 (8th Cir. 1999)).
“Ineffective assistance of counsel, where it is due to an attorney’s negligence or mistake,
has not generally been considered an extraordinary circumstance in this regard.” Id.
(citing Beery v. Ault, 312 F.3d 948, 951 (8th Cir. 2002), and Rouse v. Lee, 339 F.3d 238,
248 (4th Cir. 2003)); see also Kreutzer, 231 F.3d at 463 (holding “counsel’s confusion
about the applicable statute of limitations does not warrant equitable tolling”). The movant
does not offer a valid excuse for failing to timely file his 28 U.S.C. § 2255 motion.
Therefore, the court finds that the movant’s situation does not fall within the limitation
period allowed by 28 U.S.C. § 2255.
In sum, the claims that the movant asserts could have been asserted before a
judgment of conviction was entered, on direct appeal or in a timely 28 U.S.C. § 2255
motion. “‘The one year period provided him with reasonable opportunity to file for relief;
and if that time period has expired, it is the result of his own doing and not due to any
inadequacy in the statute.’” United States v. Lurie, 207 F.3d 1075, 1078 (8th Cir. 2000)
(quoting Charles v. Chandler, 180 F.3d 753, 755 (6th Cir. 1999)). Accordingly, the
movant’s motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255
shall be denied.
In a 28 U.S.C. § 2255 proceeding before a district judge, the final order is subject
to review, on appeal, by the court of appeals for the circuit in which the proceeding is
held. See 28 U.S.C. § 2253(a). Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals. See 28 U.S.C. §
2253(c)(1)(A). A district court possesses the authority to issue certificates of appealability
under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v. Benson, 122 F.3d
518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability
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may issue only if a movant has made a substantial showing of the denial of a constitutional
right. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Garrett v. United States,
211 F.3d 1075, 1076-77 (8th Cir. 2000); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th
Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997); Tiedeman, 122 F.3d at 523.
To make such a showing, the issues must be debatable among reasonable jurists, a court
could resolve the issues differently, or the issues deserve further proceedings. See Cox,
133 F.3d at 569 (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)); see also
Miller-El, 537 U.S. at 335-36 (reiterating standard).
Courts reject constitutional claims either on the merits or on procedural grounds.
“‘[W]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy [28 U.S.C.] § 2253(c) is straightforward: the [movant] must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.’” Miller-El, 537 U.S. at 338 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). When a federal habeas petition is dismissed on
procedural grounds without reaching the underlying constitutional claim, “the [movant
must show], at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” See Slack,
529 U.S. at 484.
Having thoroughly reviewed the record in this case, the court finds that the movant
failed to make the requisite “substantial showing” with respect to the claims that he raised
in his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. See
28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b). Because he does not present a question
of substance for appellate review, there is no reason to grant a certificate of appealability.
Accordingly, a certificate of appealability shall be denied. If he desires further review of
his 28 U.S.C. § 2255 motion, the movant may request issuance of the certificate of

5

appealability by a circuit judge of the Eighth Circuit Court of Appeals in accordance with
Tiedeman, 122 F.3d at 520-22.
IT IS THEREFORE ORDERED:
(1)

The movant’s motion to vacate, set aside or correct sentence pursuant to 28
U.S.C. § 2255 (civil docket no. 1) is DENIED.

(2)

A certificate of appealability is DENIED.

(3)

The motion to proceed in forma pauperis (civil docket no. 2) and motion for
transcripts (civil docket no. 3) are DENIED as moot.

DATED this 10th day of November, 2016.

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