Claunch v. United States Of America
Filing
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MEMORANDUM OPINION AND ORDER. Claunch's 27 , 28 2255 motion is Denied with Prejudice, and he is Denied a Certificate of Appealability. (Signed by Judge John D. Rainey.) Parties notified. (yhausmann, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
v.
TAYLOR CLAUNCH,
Defendant/Movant.
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CR. No. C-11-380
(C.A. No. C-13-76)
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MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Taylor Claunch’s (Claunch) motion to vacate, correct,
or set aside his sentence pursuant to 28 U.S.C. § 2255. D.E. 27, 28.1.
I. JURISDICTION
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331.
II. BACKGROUND
Claunch was indicted in April 2011 for eight counts of distributing and possessing child
pornography in violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1), 2252A(a)(5)(B), 2252A(b)(2), and
2256(8)(A). D.E. 1. He was arrested shortly thereafter and made his initial appearance in federal
court on April 19, 2011. He was appointed counsel the same day. D.E. 7.
Claunch pled guilty pursuant to a plea agreement on June 20, 2011. Minute Entry June 20,
2011, D.E. 16. In exchange for his guilty plea to Count Two of the indictment (distribution of child
pornography) and his waiver of his right to appeal or to file a motion to vacate, set aside, or correct
sentence, the government agreed to recommend maximum credit for acceptance of responsibility,
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Docket entry references (D.E.) are to the criminal case.
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to recommend a sentence of imprisonment within the applicable guidelines, and to dismiss the
remaining seven counts of the indictment after sentencing. D.E. 16 at ¶¶ 1, 2, 8.
A Presentence Investigation Report (PSR) was prepared. D.E. 18. The base offense level for
violation of 18 U.S.C. § 2252(a)(2) is 22. U.S.S.G. § 2G2.2(b)(2). Claunch’s offense level was
increased by 2 levels pursuant to U.S.S.G. § 2G2.2(b)(3), (A) - (E); by 4 levels because the images
portrayed sadistic or masochistic conduct or other depictions of violence; by 2 levels due to the use
of a computer; and by 5 levels because the number of images exceeded 600. D.E. 18 at ¶¶ 21-29.
After credit for acceptance of responsibility, Claunch’s total offense level was 34. Claunch had no
previous criminal history. Id. at ¶¶ 34-36. His Guideline sentencing range was 151-188 months. Id.
at ¶ 52.
Sentencing was held on September 20, 2011. Claunch was sentenced to 121 months in the
Bureau of Prisons, 12 years supervised release, no fine, and a $100 special assessment. D.E. 23.
Final judgment was signed and entered on October 3, 2011. Id. The Court adopted the PSR without
change and imposed a below guideline sentence pursuant to 18 U.S.C. § 3553(a). D.E. 24. Claunch
was reminded of his waiver of appeal at the time of sentencing. Minute Entry Sept. 20, 2011. He did
not appeal. The Clerk received this motion pursuant to § 2255 on March 20, 2013. D.E. 27.
III. MOVANT’S ALLEGATIONS
Claunch’s § 2255 form is difficult to read because the print is faint. He also filed a typed
document that is referenced in his form. D.E. 28. In his typed document, Claunch claims that his
counsel was ineffective on the grounds that counsel failed to: 1) perfect a timely appeal, 2) negotiate
a plea that took into account Claunch’s psychological disorders, and 3) seek a downward departure
pursuant to § 5K2.13 (diminished capacity). D.E. 29 at 3-4. Claunch further claims that counsel did
not confer with him about an appeal after sentencing. Id. at 4. Next Claunch claims that the Court
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failed to take into consideration at sentencing Claunch’s cooperation with state authorities against
his uncle. Id. at 5.
IV. ANALYSIS
A.
28 U.S.C. § 2255
There are four cognizable grounds upon which a federal prisoner may move to vacate, set
aside, or correct his sentence: 1) constitutional issues, 2) challenges to the district court’s
jurisdiction to impose the sentence, 3) challenges to the length of a sentence in excess of the
statutory maximum, and 4) claims that the sentence is otherwise subject to collateral attack. 28
U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). “Relief under 28 U.S.C.
§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage
of justice.” United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam). Furthermore,
a defendant may not raise an issue for the first time on collateral review without first showing
“cause” for the procedural default, and “actual prejudice” resulting from the error. United States v.
Pierce, 959 F.2d 1297, 1301 (5th Cir.1992). The “cause and prejudice standard presents a
‘significantly higher hurdle’” than the plain error standard applied on direct appeal. United States
v. Frady, 456 U.S. 152, 166 (1982). In addition, “a collateral challenge may not do service for an
appeal.” Id. at 165.
B.
Statute of Limitations § 2255
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A motion made under § 2255 is subject to a one-year statute of limitations, which, in most
cases, begins to run when the judgment becomes final.2 28 U.S.C. § 2255. The Fifth Circuit and the
Supreme Court have held that a judgment becomes final when the applicable period for seeking
review of a final conviction has expired. Clay v. United States, 537 U.S. 522 (2003); United States
v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000) (per curiam). Claunch did not appeal. His
conviction became final on the last day to file a timely notice of appeal. Claunch had 14 days to file
a notice of appeal. FED. R. APP. P. 4(b). His notice of appeal was due on October 4, 2011. Claunch
did not file his § 2255 motion until March 13, 2013, a year and 159 days later. The § 2255 motion
was late by 159 days.
Equitable tolling may allow for a late filed motion, but such exceptions to limitations are
rare. United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002) (although the limitations period for
§ 2255 motions is not considered a jurisdictional bar, it is subject to equitable tolling “only ‘in rare
and exceptional cases.’”). The party seeking equitable tolling bears the burden of demonstrating that
tolling is appropriate. United States v. Petty, 530 F.3d 361, 365 (5th Cir. 2008). To satisfy his
burden, Claunch must show that 1) he has diligently pursued his rights, and 2) some extraordinary
circumstance stood in his way. Id.
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The statute provides that the limitations 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 filing
by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if the 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.
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Although Claunch requests equitable tolling in his prayer, he states no factual basis for his
request. Accordingly, the Court concludes that Claunch’s failure to file his § 2255 motion within
the one-year limitations period requires that the motion be dismissed with prejudice as time-barred.
Because the Court determines that Claunch’s motion is time-barred, it does not reach the merits of
his asserted grounds for relief.
V. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(A). Although Claunch has not yet filed a notice of appeal, this Court nonetheless
addresses whether he would be entitled to a certificate of appealability (COA). See Alexander v.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000)(a district court may sua sponte rule on a COA because
“the district court that denies a petitioner relief is in the best position to determine whether the
petitioner has made a substantial showing of a denial of a constitutional right on the issues before
that court. Further briefing and argument on the very issues the court has just ruled on would be
repetitious.”).
A COA “may issue. . . only if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). “The COA determination under § 2253(c) requires
an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003).
To warrant a grant of the certificate as to claims denied on their merits, “[t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This standard requires
a § 2255 movant to demonstrate that reasonable jurists could debate whether the motion should have
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been resolved differently, or that the issues presented deserved encouragement to proceed further.
United States v. Jones, 287 F.3d 325, 329 (5th Cir. 2002) (relying upon Slack, 529 U.S. at 483-84).
As to claims that the district court rejects solely on procedural grounds, the movant must
show 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.” Slack, 529 U.S. at 484.
The Court concludes that reasonable jurists could not debate the denial of Claunch’s § 2255
motion on substantive grounds nor find that the issues presented are adequate to deserve
encouragement to proceed. Miller-El, 537 U.S. at 327 (citing Slack, 529 U.S. at 484). Similarly, as
to the claims that this Court has addressed on procedural grounds, the Court finds that Claunch
cannot establish at least one of the Slack criteria. Specifically, jurists of reasons would not find this
Court's procedural rulings debatable. Accordingly, Claunch is not entitled to a COA as to his claims.
V. CONCLUSION
For the foregoing reasons, Claunch’s § 2255 motion (D.E. 27, 28) is DENIED WITH
PREJUDICE pursuant to Rule 4(b) of the 2255 Rules and he is DENIED a Certificate of
Appealability.
It is so ORDERED.
SIGNED on this 14th day of May, 2013.
JOHN D. RAINEY
SENIOR U.S. DISTRICT JUDGE
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