Foy v. USA

Filing 9

MEMORANDUM DECISION and ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Dee Benson on 6/15/2017. (blh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
STEPHEN FOY,
Petitioner,

MEMORANDUM DECISION AND
ORDER

v.
UNITED STATES OF AMERICA,
Respondent.

Case No. 1:16-cv-140-DB
Crim. No. 1:07-cr-57-DB
District Judge Dee Benson

Before the court is Petitioner Stephen Foy’s Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255. Having considered the motion and pleadings, having
reviewed the file, and being otherwise fully informed, the court enters the following
Memorandum Decision and Order.
BACKGROUND
On May 16, 2007, Foy was charged by indictment with a violation of 18 U.S.C.
§ 2251(a), Production of Child Pornography. (1:07-cr-0057-DB, Dkt. No. 1.) Following plea
negotiations, on December 2, 2008, the United States filed a felony information charging Foy
with a violation of 18 U.S.C. § 2252A(a)(5)(B), Possession of Child Pornography. (Id., Dkt. No.
37.) On December 23, 2008, Foy pled guilty to the felony information. (Id., Dkt. No. 40.)
Pursuant to a written plea agreement, and in return for Foy’s guilty plea, the United States agreed
to move to dismiss the original indictment at the time of sentencing and to recommend a 120
month term of imprisonment with a lifetime term of supervised release. (Id., Dkt. No. 43 at 5.)

The plea agreement was silent as to any pending state charges or sentences. (Id.) Foy signed the
plea agreement, which included the following affirmation:
This Statement in Advance contains all terms of the agreements between me and
the government; if there are exceptions, the Court will be specifically advised, on
the record, at the time of my guilty plea of the additional terms. I understand the
government and I cannot have terms of this plea agreements (sic) that are not
disclosed to the Court.
(Id. at 5.) The court was not informed of any additional terms at the time Foy entered his plea of
guilty. (Id., Dkt. No. 40.)
On May 13, 2009, this court sentenced Foy to a prison term of 120 months and
supervised release for life, consistent with the joint recommendation of the parties and their plea
agreement. (Id., Dkt. No. 47.) Foy was represented at the sentencing hearing by Gary Gale. (Id.)
At the hearing, the court ordered that Foy be placed at a Federal Correctional Institution as soon
as possible for purposes of medical treatment. (Id.) Foy’s state charges were not discussed at the
sentencing hearing.
On May 19, 2009, Foy was sentenced in the State of Utah to an indeterminate period of
zero to five years in the Utah State Prison for the crime of sexual activity with a minor. (Id., Dkt.
No. 51.) The state court sentence was ordered to run concurrent to Foy’s federal sentence. (Id.,
Dkt. No. 53.)
On or about June 2011, Foy requested from the United States Bureau of Prisons (the
“BOP”) a retroactive credit toward his 120-month federal sentence for the time he had served in
his state case. (Id.) On June 27, 2011, the United States filed a motion in this court seeking
clarification as to whether the federal sentence was to run concurrent or consecutive to Foy’s
state sentence. (Id.) On May 3, 2012, Foy was released into sole federal custody. (Id., Dkt. No

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53.) Thereafter, Foy was informed that the BOP had determined that Foy’s federal sentence
would run consecutive to the state time Foy had served. (Id.) Foy engaged in the BOP’s
administrative procedures and appeal process. (Id.) On March 2, 2014, the BOP issued its final
determination on Foy’s appeal, stating that because the court had “remained ‘silent regarding the
relationship of the federal sentence to any impending state sentence’[,] Title 18 U.S.C. § 3584
requires the sentences to be consecutive.” (Id. at 4.)
On April 7, 2015, Foy filed a pro se motion pursuant to Fed. R. Crim. P. 36, seeking
clarification or correction of his federal sentence. (Id.) In his motion, Foy requested that this
court “clarify its intention as to how the sentence it imposed was to relate to the, at the time
pending, State sentence.” (Id.) On May 18, 2016, this court issued an amended judgment
clarifying that “[t]his sentence shall run consecutive with [Foy’s] state case.” (Id., Dkt. No. 58.)
On May 31, 2015, Foy filed a notice of appeal. (Id., Dkt. No. 60.) On November 25, 2016, the
United States Court of Appeals for the Tenth Circuit affirmed this Court’s denial of Foy’s Rule
36 motion. (Appellate Case 16-4100 at Doc. 01019726708.)
On September 12, 2016, Foy filed a Motion to Vacate, Set Aside or Correct Sentence
pursuant to 28 U.S.C. § 2255. (1:16-cv-140, Dkt. No. 1.) In his petition, Foy appears to express
two grievances. First, Foy argues that he should have been placed in federal custody as soon as
possible, pursuant to this court’s order at sentencing. (Id.) Second, Foy asserts his counsel was
ineffective for failing to ask the Court to order a concurrent sentence with the yet-to-be-imposed
state sentence. (Id.)

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DISCUSSION
Section 2255 allows prisoners in federal custody to move for their sentences to be
vacated, set aside, or corrected if their “sentence was imposed in violation of the Constitution or
laws of the United States, or ... the court was without jurisdiction to impose such sentence, or ...
the sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack.” 28 U.S.C. § 2255(a). Section 2255(f) provides a one-year period in which to
file a § 2255(a) motion, running from the later of “the date on which the judgment of conviction
becomes final” or “the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.”1 § 2255(f)(1), (4).
“[A] judgment of conviction becomes final” under § 2255(f)(1) “when the time expires
for filing a petition for certiorari contesting the appellate court's affirmation of the conviction.”
Clay v. United States, 537 U.S. 522, 525 (2003). When an amended judgment is entered, “the
statute of limitations does not recommence from the date of the resentencing judgment.” United
States v. Chapman, 220 F. App'x 827, 830 (10th Cir. 2007). Thus, even if this court had amended
Foy’s sentence in its May 18, 2016 Amended Judgment, rather than merely affirming the
consecutive nature of the sentence, the statute of limitations would not have recommenced for
purposes of § 2255. Because Foy did not file a direct appeal of his sentence, his judgment of
conviction became final 14 days after his federal sentence was imposed on May 13, 2009. Fed.
R. App. P. 4(b)(1). Foy did not file his § 2255 petition until September 12, 2016, over six years
after the one-year limitation period set forth in § 2255 had expired.

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There are two other grounds that can trigger the limitations period, but neither applies to this Petition. § 2255(f)(2)(3).

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Foy also failed to file his petition within one year of “the date on which the facts
supporting [his claims] could have been discovered through the exercise of due diligence.”
§2255(f)(4). Foy was returned to state custody on or about June 19, 2009. (1:07-cr-0057-DB,
Dkt. No. 53, Ex. A.) Thus, Foy knew that he had not been placed in federal custody as of that
date. As such, the statute of limitations for Foy’s first claim—that he should have been placed in
federal custody as soon as possible, pursuant to this court’s order at sentencing—expired no later
than June 19, 2010, over six years before the filing of Foy’s petition.
As to Foy’s second claim for ineffective assistance of counsel, Foy knew at the time of
sentencing on May 13, 2009, that concurrent sentencing was not discussed in his plea agreement,
and that whether the sentence should run concurrent with any state sentence imposed was not
discussed at the sentencing hearing. As such, through the exercise of due diligence, Foy should
have known that his sentence was not guaranteed to run concurrently with his state sentence at
that time. Even if Foy may have had some doubt at the time of sentencing, Foy acknowledged in
his Rule 36 Motion that he knew of the BOP’s position that the sentences would run consecutive,
rather than concurrent, no later than the final determination of the BOP administrative remedy
process on March 2, 2014. Thus, to be timely, Foy would have had to file his petition no later
than March 2, 2015. Foy did not file his petition until over a year later, on September 12, 2016.
Furthermore, Foy has not provided any basis for equitable tolling of the statute of
limitations set forth in § 2255(f). “For equitable tolling to apply, the movant must show ‘(1) that
he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in
his way’ to prevent timely filing.” United States v. Rauch, 520 F. App'x 656, 658 (10th Cir.

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2013)(citation omitted). Foy has not provided any facts to demonstrate that he has pursued his
§ 2255 rights diligently, or that any extraordinary circumstance prevented him from timely filing.
Foy’s petition was not timely filed, and the court finds no basis to equitably toll the
deadline. As such, Foy’s petition must be denied.
CONCLUSION
For the reasons set forth herein, Foy’s Motion to Vacate, Set Aside, or Correct Sentence
is DENIED. The court also hereby DENIES a certificate of appealability in this case, pursuant to
Rule 11 of the Rules Governing Section 2255 cases.

DATED this 15th day of June, 2017.

BY THE COURT:

Dee Benson
United States District Judge

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