Payer v. United States of America

Filing 21

ORDER granting Petition for Writ of Habeas Corpus and directing preparation of Amended Judgment. Signed by U.S. District Judge Karen E. Schreier on 2/20/2013. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JOSHUA PAYER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Civ. 12-4035-KES

ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS

Petitioner, Joshua Payer, filed a pro se petition for relief under 28 U.S.C.
§ 2255 on February 24, 2012. Docket 1. The court referred the petition to
United States Magistrate Judge John E. Simko pursuant to 28 U.S.C.
§ 636(b)(1)(B) for the purposes of conducting any necessary hearings and
issuing a report and recommendation for the disposition of Payer’s § 2255
petition. Docket 5. On May 2, 2012, with the assistance of counsel, Payer filed
an amended petition for relief. Docket 10. Payer amended his petition for relief
yet again on May 10, 2012. Docket 13.
On October 5, 2012, Magistrate Judge Simko issued a report and
recommendation for the disposition of Payer’s § 2255 petition. Docket 14. After
receiving an extension to respond, Payer filed his objections to the report and
recommendation on October 26, 2012. Docket 19. The government responded
on November 2, 2012. Docket 20. For the reasons set forth herein, Magistrate

Judge Simko’s report and recommendation will be adopted in part and rejected
in part.
DISCUSSION
The court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. Pursuant to 28 U.S.C. § 636(b)(1), the court reviews de novo any
objections that are timely made and specific. See Fed. R. Civ. P. 72(b) (“The
district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.”). In the instant case, Payer
objects to Magistrate Judge Simko’s findings that (1) Payer was convicted of 18
U.S.C. § 1591(a); (2) even if Payer was convicted of 18 U.S.C. § 1594(c), he
would be subject to the same penalties that accompany § 1591(a); (3) Payer
waived or procedurally defaulted his claim that the court imposed an illegal
sentence; and (4) Payer waived his claim for ineffective assistance of counsel.
Docket 14. The court has reviewed de novo the issues raised by Payer’s
objections.1
1

Payer does not object to the magistrate judge’s findings that grounds
two and three of his original petition are barred by the appeal waiver. Docket
14 at 6–8. The court will therefore not address these findings other than to
state that the court adopts the magistrate judge’s findings on those issues. As
a result, Payer’s claims that the court improperly calculated his sentence by
failing to reduce his term of supervised release by 25 percent and failed to
articulate any legal or factual basis supporting the extended period of
supervised release constituted cruel and unusual punishment in violation of
the Eighth Amendment are denied.
2

I.

Payer Pleaded Guilty to § 1594(c), Not § 1591(a).
In his first objection, Payer asserts that, although he was originally

charged with participation in sex trafficking under § 1591(a)(1), he eventually
pleaded guilty to a two-count Information, which charged him with one count
of dispensing and distributing a controlled substance in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2(a), and one count of conspiracy to commit sex
trafficking in violation of 18 U.S.C. § 1594(c). See Information at 3–4, United
States v. Payer, CR 10-40081, Docket 36.
The second count stated as follows:
Beginning on or about July 1, 2009, and continuing through on or
about November 20, 2009, all dates being approximate and
inclusive, in the District of South Dakota and elsewhere, in and
affecting interstate and foreign commerce, Defendant Joshua
Payer did knowingly and intentionally conspire with Brandon
Quincy Thompson, a/k/a Terence Maceo Clay, Jr., a/k/a “Kadafi,”
a/k/a Hanee Rashid King, a/k/a Hanee Rasid King to violate 18
U.S.C. § 1591(a)(1). That is, Payer and Thompson agreed together
to transport and obtain a person, J.B., knowing and recklessly
disregarding the fact that means of force, threats of force, fraud,
and coercion would be used to cause J.B. to engage in a
commercial sex act.
Id. at 4. Although the second count refers to § 1591(a)(1), the Information
actually charged Payer with violating 18 U.S.C. § 1594(c), which is conspiracy
to violate § 1591(a)(1). Docket 19 at 3. Furthermore, the plea agreement noted
that Payer would be “waiv[ing] indictment . . . and plead[ing] guilty to an
information charging violations of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(a),

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and of 18 U.S.C. § 1594(c).” Plea Agreement at 2, United States v. Payer, CR
10-40081, Docket 37.
On November 10, 2010, at a change of plea hearing, Payer pleaded guilty
to “conspiracy to commit sex trafficking.” Change of Plea Hearing Transcript at
19, United States v. Payer, CR 10-40081, Docket 59. Finally, and most
significantly, on February 25, 2012, the court sentenced Payer to 22 months’
imprisonment, followed by ten years of supervised release, for Count Two,
which was conspiracy to commit sex trafficking.2 Sentencing Transcript at
54–55, United States v. Payer, CR 10-40081, Docket 60. Therefore, the court
rejects the magistrate judge’s finding that Payer was convicted of violating 18
U.S.C. § 1591(a). Although Payer was originally charged with violating 18
U.S.C. § 1591(a)(1), the court finds that Payer eventually pleaded guilty to and
was convicted of violating 18 U.S.C. § 1594(c).

2

As Payer has noted, the judgment listed § 1591(a)(1) as the offense of
conviction for Count 2, even despite specific reference to “conspiracy to commit
sex trafficking.” See Judgment at 1, United States v. Payer, CR 10-40081,
Docket 54. Nonetheless, because “[t]he oral pronouncement by the sentencing
court is the judgment of the court,” this error in transcription is of no
consequence. United States v. Tramp, 30 F.3d 1035, 1037 (8th Cir. 1994); see
also United States v. Glass, 720 F.2d 21, 22 n.2 (8th Cir. 1983) (“Where an oral
sentence and the written judgment conflict, the oral sentence controls.” (citing
Johnson v. Mabry, 602 F.2d 167, 170 (8th Cir. 1979))). Accordingly, Payer was
convicted of violating § 1594(c), not § 1591(a)(1).
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II.

Having Been Convicted of Violating § 1594(c), Payer Is Not Subject
to the Penalties That Accompany § 1591(a)(1).
In his second objection, Payer contends that his supervised release

should have been determined with reference to 18 U.S.C. § 3583(b)(1), not
§ 3583(k). Pursuant to 18 U.S.C. § 3583(b)(1), the authorized term of
supervised release for a Class A felony3 is not more than five years. Under 18
U.S.C. § 3583(k), however, the authorized term of supervised release for
certain enumerated offenses is “any term of years not less than 5, or life.”
Specifically enumerated offenses include “any offense under section 1201
involving a minor victim, and . . . any offense under section 1591, 2241, 2242,
2243, 2244, 2245, 2250, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, 2423,
or 2425.” According to Payer, because the offense with which he was convicted
is not listed in 18 U.S.C. § 3583(k), the authorized term of supervised release
associated with his offense is “not more than five years,” as indicated by 18
U.S.C. § 3583(b)(1). Docket 19 at 12–14.
Because 18 U.S.C. § 1594(c) is not among the enumerated offenses listed
under 18 U.S.C. § 3583(k),4 and because 18 U.S.C. § 1594(c) does not provide

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A violation of 18 U.S.C. § 1594(c) could result in a life sentence; a
violation of § 1594(c) is therefore deemed a Class A felony. See 18 U.S.C.
§ 3559(a)(1).
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Expressio unius est exclusio alterius.
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a more specific statutory maximum term of supervised release,5 the court finds
that the maximum term of supervised release to which Payer could have been
properly sentenced is “not more than five years,” as specified under 18 U.S.C.
§ 3583(b)(1). The court therefore rejects that portion of the magistrate judge’s
report and recommendation.
III.

Payer Has Neither Waived Nor Procedurally Defaulted On His Claim
That the Court Imposed an Illegal Sentence.
Payer asserts that his claim regarding the imposition of an illegal

sentence is neither barred by the appeal waiver nor procedurally defaulted
through his failure to raise the issue on appeal. Docket 19 at 15–18.
Furthermore, Payer insists that this claim, which was raised outside the oneyear statute of limitations applicable to § 2255 petitions, “relates back” to his
original petition and thus is not time barred. Id. at 19–20.
First, the court adopts the magistrate judge’s finding that Payer did not
waive his claim regarding the illegality of the ten-year term of supervised
release imposed for Count 2—that the claim “falls outside the appeal waiver
pursuant to United States v. Andis, 333 F.3d 886, 889 (8th Cir. 2003).” Docket
14 at 10. Even after knowingly and voluntarily waiving direct appeal rights, a
defendant does not “waive their right to appeal an illegal sentence or a

5

As Payer correctly notes, the statutory maximum provided at 18 U.S.C.
§ 3583(b)(1) may be superseded by a more specific provision, hence the
introductory phrase “[e]xcept as otherwise provided.”
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sentence imposed in violation of the terms of an agreement.” DeRoo v. United
States, 223 F.3d 919, 923 (8th Cir. 2000) (citing United States v. Michelsen,
141 F.3d 867, 872 (8th Cir. 1998)). According to the Eighth Circuit, “[a]
sentence is illegal when it is not authorized by law; for example when the
sentence is in excess of a statutory provision or otherwise contrary to the
applicable statute.” Andis, 333 F.3d at 892. Although this exception is
“extremely narrow,” the court finds that Payer’s claim—that the imposed term
of supervised release was not within the range authorized by law—falls
squarely within the exception and thus outside the appeal waiver.
Second, the court rejects the magistrate judge’s finding that Payer has
procedurally defaulted on his claim regarding the illegality of the ten-year term
of supervised release imposed for Count 2. Docket 14 at 8–9. As already
established, Payer’s sentence was not authorized by law. The express language
of 28 U.S.C. § 2255 specifies that such petitions may be used to collaterally
attack a sentence “in excess of the maximum authorized by law.” See 28
U.S.C. § 2255(a) (“A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the
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sentence to vacate, set aside or correct the sentence.”). Therefore, Payer’s
failure to raise this issue on direct review does not preclude him from
collaterally attacking his illegal sentence.
The government asserts that Payer’s claim regarding the imposition of an
illegal sentence is time barred by the one-year statute of limitations applicable
to § 2255 petitions because that particular claim was asserted in an amended
petition, which was filed after the applicable statute of limitations had run.
Docket 20 at 3–5. Pursuant to Federal Rule of Civil Procedure 15(c)(1)(B), “[a]n
amendment to a pleading relates back to the date of the original pleading when
the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in the original
pleading.” See also Mandacina v. United States, 328 F.3d 995, 1000 n.3 (8th
Cir. 2003) (noting that, because “[h]abeas proceedings are civil in nature . . .
the Federal Rules of Civil Procedure apply” (citing United States v. Craycraft,
167 F.3d 451, 457 n.6 (8th Cir. 1999))). Ignoring legal theories and focusing on
the factual underpinnings of Payer’s original habeas petition, it is clear that
the illegal-sentence claim asserted in Payer’s amended petitions arose from the
same occurrence set forth in his original petition—the court incorrectly
imposed a ten-year term of supervised release at Payer’s sentencing hearing.
Thus, Payer’s amended petitions and the claims therein relate back to his
original petition and are not time barred.
8

Regardless of the applicable statute of limitations, the court may revise
sentences so long as the revision is “expressly permitted by statute.” 18 U.S.C.
§ 3582(c)(1)(B). Pursuant to 28 U.S.C. § 2255(a), the court has the statutory
authority to modify a sentence that “was in excess of the maximum authorized
by law.” In accordance with a recent Eighth Circuit decision, the court can do
so sua sponte and despite applicable statutes of limitations. United States v.
Daily, 703 F.3d 451, 453–54 (8th Cir. 2013). Thus, the court grants Payer’s §
2255 petition with regard to his claim that the court illegally imposed a 10year sentence of supervised release. In light of this holding, the court does not
need to reach the issue of whether Payer’s counsel was ineffective and rejects
that portion of Magistrate Judge Simko’s report and recommendation. It is
therefore
ORDERED that the report and recommendation of Magistrate Judge
Simko (Docket 14) is adopted in part and rejected in part. Payer’s § 2255
petition is denied with respect to his claim that the court improperly calculated
his sentence by failing to reduce his term of supervised release by 25 percent
and his claim that the court’s failure to articulate any legal or factual basis
supporting the extended period of supervised release constituted cruel and
unusual punishment in violation of the Eighth Amendment. Payer’s § 2255
petition is granted with respect to his claim that the court imposed an illegal
sentence.
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IT IS FURTHER ORDERED that upon release from imprisonment, Payer
will be on supervised release for a term of three (3) years on Count 1 and five
(5) years on Count 2, such terms to run concurrent. The United States
Probation Office is directed to prepare an Amended Judgment.
Dated February 20, 2013.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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