Dickson v. USA

Filing 8

MEMORANDUM OPINION and ORDER. The court ORDERS that Dickson's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 be, and is hereby, denied and dismissed as time-barred. The court further ORDERS that Dickson's 4 motion for a change of venue be, and hereby is, denied. The court further ORDERS that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 9/15/2012) (npk)

{-----U:S:DISTRICT CO-i:TRT---"~-':
NORTHERN DISTRICT OF TEXAS

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FILED
IN THE UNITED STATES DISTRICT OURT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION

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SEP 152012

CLERK, U.S. DISTRICT COURT

By_ _~--:-

BRYAN KERR DICKSON,
Movant,
VS.
UNITED STATES OF AMERICA
Respondent.

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Deputy

NO. 4:12-CV-596-A
(NO. 4:09-CR-040-A)

MEMORANDUM OPINION
and
ORDER
Before the court for decision is the motion of Bryan Kerr
Dickson ("movant") to vacate, set aside, or corrE7ct his sentence
pursuant to 28 U.S.C.
change of venue.

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2255, and also his related motion for a

Having reviewed the motion, the record, and

applicable legal authorities, the court concludes that the motion
pursuant to Section 2255 should be dismissed as time-barred,l and
the motion for a change of venue should also be denied.
1.

Background
Following his arrest on March II, 2009, movant was charged
in a superseding indictment with one count of possession of child
pornography in violation of 18 U.S.C.

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2252(a) (4) (B) and (b) (2),

and one count of production of child pornography in violation of

1 The court notes that, in addition to being time-barred, the motion also consists entirely
of conclusory statements that lack merit. Further, movant has previously filed a motion pursuant
to 28 U.S.C. § 2255, which the court considered and dismissed. Dickson v. United States, No.
4:ll-CV-567-A. However, because the motion is time-barred and must be dismissed
accordingly, the court need not further address additional grounds for denying movant's Section
2255 motion.

18 U.S.C. § 2251{a) and (e).

Movant pleaded not guilty, and

waived his right to a jury trial.

Movant was convicted of both

counts following a bench trial held June 8, 2009.

On October 23,

2009, the court sentenced movant to 240 months as to count one,
and 600 months as to count two, to run consecutively to each
other for a total term of imprisonment of 840 months,
a lifetime term of supervised release.

followed by

The united States Court

of Appeals for the Fifth Circuit affirmed movant's conviction and
sentence.

United States v. Dickson, 632 F.3d 186 (5th Cir.

2011), and the United states Supreme Court denied certiorari on
May 31, 2011.

Dickson v. United States, 131 S. ct. 2947

(2011).

Movant filed a motion pursuant to 28 U.S.C. § 2255 on August
15, 2011, which was considered and denied by the court on
November 3, 2011.

Dickson v. united States, No. 4:11-CV-567-A.

Movant filed the instant motion with the court on August 27,
2012.
II.
Analysis
A. Motion Pursuant to 28 U.S.C. § 2255
The court now considers the standard for determining the
timeliness of

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2255 motions, and applies that standard to

Wallace's motion. A one-year period of limitations applies to
motions under 28 U.S.C.
sentence.

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2255 to vacate, set aside, or correct

28 U.S.C. § 2255{f). Section 2255{f) provides that:

The [one-year]
latest of--

limitation period shall run from the

(1) the date on which the judgment of conviction
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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.

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2255 (f).

If the limitations period is determined by the date on which
the jUdgment of conviction became final, then movant's

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2255

motion is clearly time-barred. "[T]he conviction becomes final,
and the one-year period begins to run, upon expiration of the
time for seeking certiorari in the u.S. Supreme Court, even
where, as here, the appellant has not actually filed such a
petition."

United States v. Gamble, 208 F.3d 536, 536 (5th Cir.

2000). In this case, movant's conviction became final when the
Supreme Court denied certiorari on May 31, 2011. Therefore, the
instant

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2255 motion, filed on August 27, 2012, was filed well

beyond the expiration of the one-year limitations period.
Accordingly, because the motion was not filed until over a year
after the termination of the one-year limitations period, it is
time-barred.
B. Motion for Change of Venue
Movant asks for a change of venue claiming that because the
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undersigned presided over movant's arraignment, trial, and
sentencing, movant would not be able to receive fair treatment.
A motion pursuant to 28 U.S.C. 2255 must be filed in the court
which imposed movant's sentence.

Movant alleges nothing further,

and clearly is not entitled to a change of venue.

Accordingly,

this motion will be denied.
III.
Order
Therefore,
The court ORDERS that Dickson's motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C.

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2255 be, and is

hereby, denied and dismissed as time-barred.
The court further ORDERS that Dickson's motion for a change
of venue be, and hereby is, denied.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule 11(a) of the Rules Governing section 2255
Proceedings for the United States District Courts, and 28 U.S.C.
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2253(c) (2), for the reasons discussed herein, the court further

ORDERS that a certificate of appealability be, and is hereby,
denied, as movant has not made a substantial showing of the
denial of a constitutional right .
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SIGNED September

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2012.

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