Kermit Oris Bear Stops v. USA

Filing 3

ORDER SCREENING AND DISMISSING CASE. No certificate of appealability shall issue. Signed by U.S. District Judge Roberto A. Lange on 01/29/2015. (LH) Modified on 1/29/2015 to add language (DJP).

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

CENTRAL DIVISION

KERMIT ORIS BEAR STOPS

3: 14-CV-03019-RAL

Plaintiff,
ORDER SCREENfNG AND DISMISSfNG CASE
vs.
UNITED STATES OF AMERICA,
Defendant.

On December 22, 2014, Petitioner Kermit Oris Bear Stops filed a motion under 28 U.S.C . § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.

Doc. 1.

Petitioner's motion

challenged his conviction for failure to register as a sex offender and his sentence imposed on July 2, 2012.
Petitioner did not appeal from that conviction or sentence. Petitioner's lone claim is for ineffective assistance
of counsel asserting that his attorney, Edward Albright of the Federal Public Defender's Office, rendered
ineffective assistance of counsel in not advocating that Petitioner was exempt from the Sex Offender
Registration Notification Act (SO RNA) in light of the Eighth Circuit's decision in United States v. Brewer,
766 F.3d 884 (8th Cir. 2014).
Under Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Court,
"[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the
moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to · notify the
moving part." See also 28 U.S.C . § 2255(b) (contemplating screening and dismissal ofa § 2255 motion if"the
motion and the files and records of the case conclusively show that the prisoner is entitled to no relief') .
Petitioner is entitled to no relief because his § 2255 was filed after expiration of the one-year limitation period
set by § 2255(f).
Section 2255 provides in relevant part that a petition must be filed within one year from the "date on
which the judgment of conviction becomes final." 28 U.S.c. § 2255(f)(1). This Court imposed sentence on

Petitioner on July 2, 2012, and signed and filed the Judgment on July 3, 2012. United States v. Bear Stops, 12­
CR-30038-RAL, Doc . 20. Petitioner did not appeal from the Judgment, so the Judgment became final on or
about July 17, 2012, when the fourteen-day period for filing a notice of appeal expired. See Fed. R. App. P.
4(b)(I )(A) (setting fourteen-day time limit for filing a notice of appeal in a criminal case); Anjulo-Lopez v.
United States, 541 F.3d 814, 816 n.2 (8th Cir. 2008) (conviction became final upon expiration of period for
filing notice of appeal where defendant did not file notice of appeal). Petitioner's § 2255 motion was filed on
December 22, 2014, more than two years after the Judgment was final. Nothing in Petitioner's motion or file
suggests any cause for equitable tolling.
Petitioner violated his supervised release and received a sentence for that behavior with judgment
entered on September 24,2014. United States v. Bear Stops, 12-CR-30038-RAL, Docs. 22,37,40. However,
Petitioner's § 2255 motion does not assert any issue with his supervised release revocation and sentence. Doc.
I. Rather, Petitioner's sole claim in his § 2255 motion relates to alleged ineffective assistance of counsel in
not arguing that SORNA was inapplicable to Petitioner, which is a claim on which the one-year limitation
under § 2255(f) ran back on or about July 17,2013.
Even if Petitioner's motion were timely, his ineffective assistance claim is meritless.

Petitioner

apparently believes that the Eighth Circuit's decision in Brewer renders his conviction under SORNA invalid.
This is incorrect. In February 2007, the Attorney General issued an interim rule making SORNA's registration
requirements applicable to all sex offenders, including those who were convicted prior to the enactment of
SORNA in 2006. Brewer, 766 F.3d at 886. The Eighth ,Circuit in Brewer concluded that the 2007 interim rule
was invalid because the Attorney

Gen~ral

had failed to comply with the Administrative Procedure Act when

promulgating the Rule. lQ., at 887-92 . Because the defendant in Brewer was convicted under the invalid 2007 .
interim rule, the Eighth Circuit reversed his conviction. Id. at 892. Unlike the defendant in Brewer, Petitioner
was not convicted under the 2007 interim rule. The interim rule was replaced with the "SMART" Guidelines
in August 2008. Id. at 886. Like the interim rule, the SMART Guidelines made SORNA applicable to pre­
SORNA offenders. Id. In January 20 II, the Attorney General promulgated a final rule mirroring the interim
rule. United States v. Knutson, 680 F.3d 1021, 1023 (8th Cir. 2012) (per curiam). Here, Petitioner's failure to

2

register under occurred in early 2012 when the 2007 interim rule was no longer in effect. Accordingly, Brewer
does not apply to Petitioner's case.
Therefore, it is hereby
ORDERED, ADJUDGED, AND DECREED that Petitioner's § 2255 Motion is denied and dismissed.
It is further
ORDERED that no certificate of appealability issue.
DATED this 29 th day of January, 2015.

BY THE COURT:

R~q~

UNITED STATES DISTRICT JUDGE

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