USA v. GOGUEN

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ROBERT FREDERICK GOGUEN, 	)
)
Petitioner, 	)
) 	1:11-cr-00003-JAW
v. 	) 	1:17-cv-00492-JAW
)
UNITED STATES OF AMERICA, 	)
)
Respondent. 	)
ORDER AFFIRMING RECOMMENDED DECISION ON
RULE 60(b) MOTION
The 	Magistrate 	Judge 	reviewed 	the 	petitioner’s 	Rule 	60(b) 	motion 	and
recommended that the Court deny the petitioner’s request for relief from the Court’s
dismissal of his 28 U.S.C. § 2255 motion. 	The Court reviewed the petitioner’s
objections on various grounds and rejects them as unsupported by the record and the
law. The Court concludes, as the Magistrate Judge did, that the petitioner failed to
establish that his motion is timely or that he pursued it diligently, nor has he
demonstrated exceptional circumstances warranting extraordinary relief. The Court
affirms the Magistrate Judge’s Recommended Decision for the reasons in that
decision and set forth in this affirmance.
I. 	BACKGROUND
A. 	Criminal Cases
1. 	United States v. Goguen, 1:11-cr-00003-JAW
On January 12, 2011, a federal grand jury indicted Robert Frederick Goguen
for failure to register as a sex offender in violation of 18 U.S.C. § 2250(a). Indictment
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(ECF No. 1). On July 13, 2011, Mr. Goguen pleaded guilty to the charged crime, Min.
Entry (ECF No. 43), and on September 14, 2012, the Court sentenced him to thirty-
seven months imprisonment, three years of supervised release, a $100 special
assessment, and no fine. J. (ECF No. 80); Am. J. (ECF No. 90). Mr. Goguen did not
appeal his conviction or sentence to the Court of Appeals for the First Circuit.
On August 16, 2013, the Government filed a warrant and summons for
violations of supervised release, alleging Mr. Goguen violated his sex offender
treatment condition of supervised release by downloading pornographic movies at the
Penobscot County Judicial Center’s law library. 	Pet. for Warrant or Summons for
Offender under Supervision (ECF No. 96). 	On September 23, 2013, Mr. Goguen
admitted the violation, and the Court sentenced him to five months incarceration and
thirty-one months of supervised release. 	Revocation J. (ECF No. 113). Mr. Goguen
appealed this revocation judgment to the First Circuit which it later affirmed. J. of
Ct. of Appeals for the First Circuit (ECF No. 142).
On November 13, 2015, the Government filed a second petition alleging that
Mr. Goguen violated the terms of two conditions of supervised release by possessing
child pornography on his computer. Pet. for Warrant or Summons for Offender under
Supervision (ECF No. 144). 	After the Court resolved several intervening motions,
Mr. Goguen admitted to the violations as alleged in the petition for revocation on
September 15, 2017. Min. Entry (ECF No. 193).
On February 7, 2019, the Court granted Mr. Goguen’s counsel’s motion for
leave to withdraw as counsel and continued the sentencing hearing in this case and
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on the new criminal charges in United States v. Goguen, 1:16-cr-00167-JAW. United
States v. Goguen, 1:16-cr-00167-JAW, Order (ECF No. 110); United States v. Goguen,
1:11-cr-00003-JAW, Order (ECF No. 278).
2. 	Robert Goguen v. United States, 1:17-cv-00492-JAW
On December 15, 2017, Mr. Goguen filed a pro se motion to vacate, set aside,
or correct his sentence for his failure to register as a sex offender conviction pursuant
to 28 U.S.C. § 2255. Mot. to Vacate, Set Aside or Correct Sentence (ECF No. 194). On
December 29, 2017, Mr. Goguen filed additional paperwork in support of his
challenge to his original sentence, his first revocation, and the decision on his appeal.
Suppl. to Mot. to Vacate, Set Aside or Correct Sentence (ECF No. 199).
After Mr. Goguen amended his 28 U.S.C. § 2255 motion, the Government
answered and moved to dismiss his motion on March 26, 2018. 	Gov’t’s Mot. to
Summarily Dismiss Pet’r’s § 2255 Pet., Resp. to § 2255 Pet., and Resp. to Pet’r’s Disc.
Filing (ECF No. 220). On September 24, 2018, Mr. Goguen filed a second amended §
2255 motion. Second Further Amendment to [§] 2255 (ECF No. 252). On February 7,
2019, over Mr. Goguen’s objection, the Court affirmed the Magistrate Judge’s
recommended decision, see Recommended Decision on 28 U.S.C. 2255 Mot. (ECF No.
253), and denied Mr. Goguen’s § 2255 motion and certificate of appealability. Order
Affirming Recommended Decision on 28 U.S.C. § 2255 Mot. (ECF No. 280). The Court
agreed with the Magistrate Judge’s finding that neither Mr. Goguen’s collateral
challenge to his conviction nor to his revocation was timely under any of the
provisions of 28 U.S.C. § 2255(f). 	Order Affirming Recommended Decision on 28
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U.S.C. § 2255 Mot. at 20-22. The Court also rejected Mr. Goguen’s equitable tolling
and actual innocence arguments. Id. at 23-26. The First Circuit denied Mr. Goguen’s
subsequent request for a certificate of appealability to appeal the Court’s order.
Notice of Appeal (ECF No. 281); J. (ECF No. 324).
On July 20, 2021, Mr. Goguen filed a motion for relief from the Court’s
February 7, 2019, order denying his § 2255 motion and a proposed amended § 2255
motion. Mot. for Relief from the Ct.’s Order (ECF No. 390) (Pet’r’s Mot.); id., Attach.
1, Am. 2255 Mot. On August 10, 2021, the Government responded, urging the Court
to deny or summarily dismiss Mr. Goguen’s motion. 	Gov’t’s Resp. and Request for
Summ. Dismissal of “Mot. for Relief from the Ct.’s Order” (ECF No. 394) (Gov’t’s
Opp’n). On September 15, 2021, the Magistrate Judge recommended that the Court
dismiss Mr. Goguen’s Rule 60(b) motion and denied his request for appointment of
counsel. 	Recommended Decision on Mot. for Relief and Order on Mot. to Appoint
Counsel (ECF No. 400) (Recommended Decision). 	After the Court granted Mr.
Goguen’s request for an extension of time, Mot. to Extend Time to File Obj. to
Recommended Decision (ECF No. 410); Order (ECF No. 411), on October 18, 2021,
Mr. Goguen filed his objection to the Recommended Decision. 	Pet’r’s Obj. to the
Magistrate Judge’s Recommended Decision on Mot. for Relief (ECF No. 412) (Pet’r’s
Obj.). 	On November 1, 2021, the Government responded to Mr. Goguen’s objection.
Gov’t’s Resp. to Pet’r’s Obj. to the Magistrate Judge’s Recommended Decision (ECF No.
413) (Gov’t Resp.).
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II. 	THE POSITIONS OF THE PARTIES
A. 	Robert Goguen’s Motion
Mr. Goguen “allege[s] defects in the integrity of the habeas proceedings,”
namely “that the Court deprived [him] of due process by ignoring the body [of]
undisputed evidence and basing its conclusions on clearly erroneous factual findings.”
Pet’r’s Mot. at 1. 	Asserting that “failure to provide relief will result in a complete
miscarriage of justice,” Mr. Goguen asks the Court to “reopen the 2255 and schedule
an evidentiary hearing.” Id. After recounting the grounds on which the Court denied
his § 2255 motion and setting out the applicable standard for relief from an order
pursuant to Rule 60(b), Mr. Goguen submits that “a number of factors . . . support
relief under Rule 60(b),” particularly the Government’s failure to “contest [his]
relevant 	factual allegations,” 	the 	Court’s 	“clearly 	erroneous” 	legal 	and factual
findings, and the Court’s “[denial of his] request for an evidentiary hearing and
appointment of counsel.” Id. at 4. He goes on to contest the Court’s characterization
of 	his 	concession 	to 	the 	eight-point 	enhancement, 	which 	he 	maintains 	“was
involuntary and under duress,” and of what happened during his sentencing. Id. at
6. Mr. Goguen insists that he “desperately fought for a jury trial in the state court”
and that the Court ignored letters that he sent to Attorney Haddow and the state
court and other “smoking gun emails.” 	Id. at 5-6. 	Mr. Goguen contends that “[t]he
severity of the above conduct and underlying constitutional violations is an equitable
factor that supports a finding of extraordinary circumstances under Rule 60(b)(6).”
Id. at 6.
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Arguing that equitable tolling should apply here, Mr. Goguen says “the Court
ignored the uncontested evidence [he] presented supporting [his] claim of serious
attorney misconduct or abandonment” on the part of Attorney Haddow. 	Id. 	Mr.
Goguen goes on to assert that “the Court erroneously concluded that [he] failed to
produce new evidence showing factual innocence” and failed to recognize his “newly
presented evidence” related to his failure to register under Maine state law. Id. at 7-
8. He also references “separate theories supporting [his] actual innocence claim that
no court has ever considered in any manner,” which he says “do not simply rephrase
legal arguments previously considered by this court.” 	Id. at 8-9. 	He concludes by
pointing to specific documents that he contends support his claim for relief. Id. at 9.
B. 	The Government’s Opposition
The Government first contends that “the inventive title of the pleading should
not be allowed to obscure its true nature: it is a successive petition within the
meaning of 28 U.S.C. § 2255(h) that Goguen has neither sought, nor received, the
appellate court’s permission to file.” 	Gov’t’s Opp’n at 2. 	Because Mr. Goguen “is a
federal prisoner who is still in custody and who challenges once again the validity of
his conviction,” the Government urges the Court to “recharacterize the instant motion
as a section 2255 petition and summarily dismiss it as an unauthorized successive
petition.” Id. at 4.
Second, according to the Government, Mr. Goguen cannot rely on Gonzalez v.
Crosby, 545 U.S. 524 (2005), to claim relief under Rule 60(b) because he “does not
make any serious challenge to the integrity of the section 2255 proceedings and gives
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only passing reference to appointment of counsel and the lack of an evidentiary
hearing, failing to develop those arguments at all.” Id. at 4-5.
Third, the Government submits that even if the Court considers the motion
pursuant to Rule 60(b), it is untimely. Id. at 6-7.
Finally, the Government argues that Mr. Goguen’s claim that the Court made
errors of law does not entitle him to “extraordinary” Rule 60(b) relief from judgment
in a valid and lawful habeas proceeding. Id. at 2-3, 5.
C. 	The Recommended Decision
After 	recounting 	the 	relevant 	procedural 	and 	factual 	background, 	the
Magistrate Judge first addressed whether Mr. Goguen’s motion is a true Rule 60(b)
motion or a second, successive § 2255 petition. 	Recommended Decision at 5-6.
Recognizing that “a Rule 60(b) motion that seeks to revisit the federal court’s denial
on the merits of a claim for relief should be treated as a successive habeas petition,”
id. at 6-7 (quoting Gonzalez v. Crosby, 545 U.S. 524, 534 (2005)) (emphasis in
Gonzalez), 	the 	Magistrate 	Judge 	noted “much 	overlap” 	between 	Mr. 	Goguen’s
arguments in his latest motion and those in his prior § 2255 motion. 	Id. at 7.
“Nevertheless, because the Court’s decision to deny his § 2255 motion rested on the
statute of limitations and not on the merits of his claims, and because some of
Petitioner’s arguments in support of his Rule 60(b) motion are directed to the Court’s
statute of limitations determination,” the Magistrate Judge concluded that Mr.
Goguen’s “motion need not be construed as a second or successive § 2255 motion
requiring authorization from the First Circuit.” Id.
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Applying the Rule 60(b) standard, the Magistrate Judge considered whether
Mr. Goguen’s motion is timely and whether he has shown “exceptional circumstances”
warranting relief from judgment. Id. at 8.
First, the Magistrate Judge concluded that Mr. Goguen’s request for relief,
made “more than twenty-nine months after the Court ruled on his § 2255 motion,”
was not filed “within a reasonable time.” 	Id. at 9. 	Moreover, “[e]ven if the
approximately one-year period of the pendency of [his] appeal from the order
dismissing his § 2255 motion were subtracted, and even accounting for some delay as
a result of the alleged temporary obstacles that resulted from pandemic precautions,”
the Magistrate Judge reasoned that Mr. Goguen “failed to establish that he pursued
his motion diligently.” Id.
Second, putting aside the timeliness issue, the Magistrate Judge reasoned that
by “essentially reiterat[ing] the arguments the Court considered and rejected in
applying the statute of limitations” to his case, Mr. Goguen failed to meet his burden
to show exceptional circumstances warranting relief. Id. Observing that “[t]he First
Circuit also determined that the Court’s application of the statute of limitations was
‘neither debatable nor wrong,’” id. at 10 (quoting Ct. of Appeals for the First Circuit,
J. (ECF No. 324)), the Magistrate Judge recommended that the Court deny Mr.
Goguen’s request “[f]or essentially the same reasons discussed in the Court’s prior
orders.”1 Id.
1 	The Magistrate Judge also denied Mr. Goguen’s request for appointment of counsel because
he has “not asserted a claim on which he can proceed in this Court or otherwise established grounds
for the appointment of counsel.” Recommended Decision at 10 (citing United States v. Mala, 7 F.3d
1058, 1063-64 (1st Cir. 1993)).
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D. 	Robert Goguen’s Objections
Mr. Goguen challenges the Magistrate Judge’s recommendation to deny his
motion for relief on two grounds.
Mr. Goguen disputes that his motion is untimely, despite his twenty-nine-
month delay, because he was “barred from seeking relief from judgment when the
matter [was] before the appellate court.” 	Def.’s Obj. at 1. 	Because he filed “within
twelve months and three weeks of the [First Circuit’s June 15, 2020,] final order”
denying his request for rehearing, his delay was not unreasonable. 	Id. at 2. 	Mr.
Goguen submits that the Court erred in refusing to appoint counsel related to his
§ 2255 motion and in refusing to enter a notice of appeal for him acting pro se. 	Id.
He insists that he has demonstrated “diligence in the pursuit of relief,” despite
“impediments caused by COVID-19” and a lack of “adequate legal materials” in jail.
Id. at 2-3.
According to Mr. Goguen, the Magistrate Judge erred in finding that he failed
to demonstrate exceptional circumstances because “the Government did not present
this argument” and “defects in the integrity of the habeas proceedings — such as an
erroneous statute of 	limitations finding — justify reconsideration of the 2255
judgment.” 	Id. at 3. 	He asserts that his “motion for relief cites to specific factual
findings that are indisputably erroneous and critical to the Court’s decision to deny
the 2255 motion as untimely.” Id. at 4. 	Mr. Goguen says that he “requested equitable
tolling” and “presented numerous grounds supporting an actual innocence gateway
claim” to overcome the statute of limitations barrier but “the Government has never
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contested any of [the] facts, arguments, or evidence [he] presented.” Id. at 5. He also
argues that the Magistrate Judge failed to consider his statute of limitations
arguments and unfairly denied him an evidentiary hearing on that issue. Id.
Mr. Goguen concludes by asserting “either actual or the appearance of judicial
impropriety,” accusing the Court of abusing its discretion and failing to protect him
as a pro se litigant by allowing “conduct that violates due process” and “calls into
question the integrity of the 2255 proceedings.” 	Id. at 6. 	He again requests an
evidentiary hearing and the assistance of counsel. Id.
E. 	The Government’s Response to Robert Goguen’s Objection
In its response to Mr. Goguen’s objection, the Government directs the Court to
its previous arguments raised in its opposition memorandum to Mr. Goguen’s Rule
60(b) motion. Gov’t’s Resp. at 1. The Government agrees with the Magistrate Judge’s
analysis and argues that Mr. Goguen’s “objection does not raise any issues that have
not already been adequately addressed by the . . . Recommended Decision.” Id.
III. 	DISCUSSION
A. 	The Court Adopts the Recommended Decision
The Court has reviewed the Magistrate Judge’s Recommended Decision de
novo 	and 	considered 	Mr. 	Goguen’s 	Rule 	60(b) 	Motion, 	his 	objection 	to 	the
Recommended Decision, and other relevant filings. 	The Court concurs with the
recommendations 	of 	the 	Magistrate 	Judge 	for 	the 	reasons 	set 	forth 	in 	his
Recommended 	Decision 	as 	further 	elaborated 	here. 	The 	Court 	views 	the
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Recommended Decision as substantively correct, and the Court adopts and affirms
the decision in its entirety. The Court writes only to address Mr. Goguen’s objections.
B. 	The Federal Rule of Civil Procedure 60(b) Standard
The Government urges the Court to summarily dismiss Mr. Goguen’s motion
as an unauthorized successive § 2255 petition. The Magistrate Judge recognized the
significant degree of overlap between Mr. Goguen’s arguments in the instant motion
and in his prior § 2255 motion. 	However, as Mr. Goguen challenges the Court’s
dispositive statute of limitations determination in its February 7, 2019, order, in
addition to repeating his arguments on his substantive claims, the Magistrate Judge
considered Mr. Goguen’s request for relief as a true Rule 60(b) motion.
1. 	Timeliness
“Motions brought pursuant to Rule 60(b)(6) are subject to a ‘reasonable’ time
limit, and the determination of what is ‘reasonable’ depends upon the circumstances
of each case.” Bouret-Echevarria v. Caribbean Aviation Maint. Corp., 784 F.3d 37, 43
(1st Cir. 2015) (citing United States v. Baus, 834 F.2d 1114, 1121 (1st Cir. 1987)).
Although Mr. Goguen insists that circumstances demonstrate his “diligence in the
pursuit of relief,” Pet’r’s Obj. at 3, the “reasonableness” of his delay turns on whether
he “acted promptly when put on notice of a potential claim.” Bouret-Echevarria, 784
F.3d at 44 (citing Baus, 834 F.2d at 1121).
The Court dismissed Mr. Goguen’s § 2255 motion on February 7, 2019. Order
Affirming Recommended Decision on § 2255 Mot. (ECF No. 280). Mr. Goguen did not
file his Rule 60(b) motion until July 20, 2021. 	See Pet’r’s Mot. 	In his objection, Mr.
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Goguen emphasizes that he could not seek relief until after the First Circuit resolved
his appeal; however, the Magistrate Judge accounted for the approximately one-year
period when that appeal was pending and took into consideration other pandemic-
related impediments to Mr. Goguen’s timely filing. See Recommended Decision at 9.
The Court agrees with the Magistrate Judge that Mr. Goguen’s motion—filed more
than two years after the challenged judgment issued—is unreasonably late. 	See
Bouret-Echevarria, 784 F.3d at 43 (“Courts evaluating what constitutes a ‘reasonable’
period of time for purposes of Rule 60(b) measure the time at which a movant could
have filed his or her Rule 60(b)(6) motion against when he or she did in fact file the
motion”); Cotto v. United States, 993 F.2d 274, 280 (1st Cir. 1993) (concluding that a
motion filed sixteen months after entry of judgment was not filed within a reasonable
time) (citations omitted).
2. 	Extraordinary Circumstances Warranting Relief
“Relief under Rule 60(b) ‘is extraordinary in nature’ and, thus, ‘motions
invoking that rule should be granted sparingly.’” Unibank for Sav. v. 999 Private Jet,
LLC, Nos. 19-1990, 21-1184, 2022 U.S. App. LEXIS 9631, at *13 (1st Cir. Apr. 11,
2022) (quoting Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir. 2002)). 	“As a
general matter, Rule 60(b) motions should not be granted unless the party seeking
relief can show (1) that the motion was timely, (2) that exceptional circumstances
justifying relief exist, (3) that the other party would not be unfairly prejudiced, and
(4) that there is a potentially meritorious claim or defense.” 	Roosevelt REO PR II
Corp. v. Del Llano-Jimenez, 765 F. App’x 459, 461 (1st Cir. 2019). “Courts are not to
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‘give credence to [a] movant’s bald assertions [or] unsubstantiated conclusions . . ..’”
Id. (quoting Teamsters, Chauffeurs, Warehousemen & Helpers Union, Loc. No. 59 v.
Superline Transp. Co., 953 F.2d 17, 18 (1st Cir. 1992)).
First, Mr. Goguen claims error in the fact that the Government did not reach
the “exceptional circumstances” issue in its opposition to his motion; however, the
Magistrate Judge could have recommended the Court deny his Rule 60(b) motion on
the basis of his delay alone, as the Government urged. 	Thus, the fact that the
Government did not address this issue does not change the Court’s conclusion.
Mr. Goguen goes on to broadly contend that the Court’s findings on the statute
of limitations issue in its February 7, 2019, order were “clearly erroneous” and points
to 	“newly 	presented 	evidence” 	of 	actual 	innocence. 	To 	allege 	extraordinary
circumstances, 	Mr. 	Goguen 	insists 	that 	the 	Court 	has 	ignored 	his 	statute 	of
limitations arguments, which he claims the Government failed to properly contest.
For example, Mr. Goguen asserts “defects in the integrity of the habeas proceedings,”
Pet’r’s Mot. at 1, because the Magistrate Judge never “even mentioned the statute of
limitations arguments” in his September 28, 2018, Recommended Decision on the §
2255 motion. 	Pet’r’s Obj. at 5. 	That is not true. 	In concluding that Mr. Goguen’s §
2255 motion was untimely, the Magistrate Judge applied the relevant statute of
limitations standards to Mr. Goguen’s motion, found that he had not alleged facts to
implicate section 2255(f)(2), (f)(3), or (f)(4), and went on to address Mr. Goguen’s
stated reasons for why he believed he was nonetheless entitled to equitable tolling.
Recommended Decision on 28 U.S.C. § 2255 Mot. at 5-9 (ECF No. 253).
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In his Recommended Decision on the Rule 60(b) motion, the Magistrate Judge
correctly observed that Mr. Goguen’s latest assertions of “exceptional circumstances”
warranting equitable tolling to the statute of limitations and invoking the actual
innocence exception echo arguments that the Magistrate Judge and the Court
previously addressed, and moreover cited the First Circuit’s pronouncement that
Court’s resolution of the timeliness issue in its February 7, 2019 order was “neither
debatable nor wrong.” Ct. of Appeals for the First Circuit, J. (ECF No. 324).
In summary, Mr. Goguen’s legal arguments for why the Court should reject the
Recommended Decision lack merit. 	The Court concludes that Mr. Goguen’s Rule
60(b) 	motion 	is 	untimely 	and 	fails 	to 	demonstrate 	exceptional 	circumstances
warranting relief from the Court’s February 7, 2019, order denying his 28 U.S.C. §
2255 motion.
IV. 	CONCLUSION
The Court has reviewed and considered the Magistrate Judge’s Recommended
Decision, 	together 	with 	the 	entire 	record. 	The 	Court 	has 	made 	a 	de 	novo
determination of all matters adjudicated by the Magistrate Judge’s Recommended
Decision. 	The Court concurs with the recommendations of the United States
Magistrate Judge for the reasons set forth in his Recommended Decision and in this
Order, and determines that no further proceeding is necessary.
1. 	It 	is 	therefore 	ORDERED 	that 	the 	Recommended 	Decision 	of 	the
Magistrate Judge be and hereby is AFFIRMED (ECF No. 400).
2. 	It is further ORDERED that the Petitioner’s Request for Relief from
Judgment and for the Appointment of Counsel be and hereby is DENIED
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(ECF No. 390).
3. 	It is further ORDERED that no certificate of appealability should issue in
the event the Petitioner files a notice of appeal because there is no
substantial showing of the denial of a constitutional right within the
meaning of 28 U.S.C. § 2253(c)(2).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 28th day of April, 2022
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