USA v. Jimenez

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DUKE JIMENEZ,
Petitioner
v. 	DECISION AND ORDER
25-CV-1072-A
16-CR-060-A
UNITED STATES OF AMERICA,
I. 	PROCEDURAL AND FACTUAL HISTORY
On December 7, 2017, Defendant/Petitioner Duke Jimenez, appeared before
this Court and, pursuant to a written plea agreement, pleaded guilty to Counts 3 and
6 of the Indictment against him which charged him respectively with production and
possession of child pornography. Dkt. 35 and 36.1 Jimenez’s conduct involved
using his cell phone to record his rape and sadistic sexual assault of a three-year-
old girl over an eight-month period in 2014. Dkt. 93, p.6; Dkt. 149, p.4. As part of his
plea, Jimenez acknowledged that he faced an advisory Guidelines term of
imprisonment of 600 months (50 years), with a statutory mandatory minimum term of
imprisonment of 15 years and a maximum possible term of imprisonment of 50
years. Dkt. 35, ¶¶9-21; Dkt. 36, pp. 4, 20-21.
1 All docket references are to the criminal docket (16-CR-060-A). Count 3 charged a
violation of 18 U.S.C. §2251(a) and Count 6 charged a violation of 18 U.S.C.
§2252A(a)(5)(B). Dkt. 35.
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At his plea proceeding, Jimenez was represented by attorney John F. Molloy,
Esq. The Court appointed Mr. Molloy to represent Jimenez several months prior to
the plea proceeding in this case, after Jimenez expressed his dissatisfaction with the
two attorneys from the Federal Public Defender’s Office who had previously been
assigned to represent him. Dkt. 93, pp. 6-8. After his plea proceeding but before his
sentencing, Jimenez sought to withdraw his pleas of guilty claiming that he received
ineffective assistance of counsel; in addition, his assigned attorney requested that
he be permitted to withdraw from representation of Jimenez and that new counsel
be assigned. Dkt. 63. The Court thereafter granted attorney Molloy’s withdraw
request and assigned attorney Robert Singer, Esq., as the fourth attorney to
represent Jimenez. See, Minute Entry, dated 6/19/2018.
In rejecting Jimenez motion to withdraw his pleas of guilty, this Court rejected
Jimenez’s claims that he received constitutionally ineffective assistance of counsel
based upon his claim that none of the three attorneys previously assigned to
represent him discussed with him nor investigated the defense of voluntary
intoxication. Dkt. 93.
On August 16, 2019, this Court sentenced Jimenez principally to a total term
of imprisonment of 504 months (42 years) as follows: 360 months as to Count 3
(production of child pornography); 240 months as to 6 (possession of child
pornography), of which 96 months was imposed to run concurrent to Count 3 and
144 months was imposed to run consecutive to Count 3. Dkt. 115.
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Jimenez appealed his conviction, Dkt. 117, and the sole issue raised on
appeal was that this Court erred in denying Jimenez’s motion to withdraw his pleas
of guilty. By judgment entered October 30, 2020 (and mandate issued December 4,
2020), the Second Circuit rejected Jimenez’s argument and affirmed the judgment of
conviction in this case, including this Court’s denial of Jimenez’s motion to withdraw
his pleas of guilty. Dkt. 133; see, United States v. Jimenez, 831 F. App'x 571 (2d Cir.
2020).2 Jimenez did not file a petition for certiorari seeking review of the Second
Circuit’s decision.
2 Following the issuance of the Second Circuit mandate affirming his conviction and
sentence, Jimenez filed a compassionate release motion (Dkt. 134) which was denied
by this Court. Dkt. 140. Thereafter, Jimenez filed a motion seeking reconsideration of
this Court’s denial of his compassionate release (Dkt. 142), and this Court directed the
Government to submit additional medical records regarding Jimenez’s health. Dkt. 143.
Upon reconsideration of Jimenez’s motion, this Court once again denied his request for
compassionate release. Dkt. 146. Jimenez appealed, and the Second Circuit affirmed
this Court’s denial of his compassionate release motion. Dkt. 150; see, United States v.
Jimenez, No. 21-1202-CR, 2022 WL 1100435 (2d Cir. Apr. 13, 2022). In so doing, the
Second Circuit stated:
Considering the Section 3553(a) factors, the district court denied
Jimenez's motion because his release at this time “would seriously undermine
the purposes for which his lengthy sentence of imprisonment was imposed.” This
determination was not erroneous, let alone an abuse of discretion. Section
3553(a)(2) lists as a sentencing consideration, among other things: “the need for
the sentence imposed—(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (B) to afford
adequate deterrence to criminal conduct; [and] (C) to protect the public from
further crimes of the defendant.” Each of these factors disfavors release at this
time. Jimenez was sentenced to 504 months’ imprisonment in 2019. With a
projected release date in late 2051, he thus has a significant amount of time
remaining on his sentence. Jimenez has not shown that his early release—nearly
thirty years before his projected release date—would reflect the seriousness of
his offense or afford deterrence to others.
Further, Jimenez has failed to show that he would not be a danger to the
public upon his early release. The nature of his offenses—including repeatedly
raping a three-year-old victim and recording the abuse over the course of nearly
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Nearly five years after his conviction was affirmed by the Circuit, Jimenez,
acting pro se, on October 21, 2025, filed a motion seeking relief pursuant to 28
U.S.C. § 2255. Dkt. 162. In his motion, Jimenez argues that the possession of child
pornography statute under which he was convicted, to wit, “18 U.S.C. §
2252(a)(4)(B) 3 is unconstitutional as applied in this case.” Dkt. 162, p. 7. In that
regard, Jimenez argues that “[t]he simple intrastate possession of a 3GB Muve
Music Micro S.D. Card containing a visual depiction family photo of defendant lying
on a bed with an inadvertent expose [sic] of his genital area exposed in the
presence of a minor that has not been transported in interstate commerce, and was
not intended for any economic or commercial use, makes the said statute
unconstitutional under the commerce clause.” Id.
Because a one-year period of limitations applies to a § 2255 motion, and
Jimenez did not file his § 2255 motion until nearly five years after the Second Circuit
issued its judgement and mandate affirming his conviction and sentence, this Court
a year—is particularly concerning. Jimenez's argument to the contrary—
suggesting he should not be considered a danger to the public because he did
not abuse multiple victims, never disseminated any illicit photographs, has no
prior criminal convictions, and has the support of his family—is not compelling in
light of his “deeply disturbed criminal behavior.” The district court did not abuse
its discretion in concluding that the Section 3553(a) factors, on balance, disfavor
early release at this time.
United States v. Jimenez, 2022 WL 1100435, at *2 (footnote and citations omitted).
3 Jimenez was not convicted of unlawfully possessing child pornography in violation of
18 U.S.C. § 2252(a)(4)(B). Rather, he was convicted, under Count 6, of unlawfully
possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Dkt. 115.
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issued an Order requesting that Jimenez explain why his motion should not be
dismissed as untimely. Dkt. 163, 165.
In response, Jimenez claims that “discovery of fraud upon the Petitioner by
the application of inapplicable Statutes was what led my conviction was discovered
by his due diligence.” Dkt. 166, p. 8. In essence, as best the Court can discern,
Jimenez is arguing that he was defrauded into thinking that his conduct amounted a
violation of a statute which criminalized the unlawful possession of child
pornography, since such statute was/is unconstitutional applied to him, and that he
only learned of this error upon conducting his own research. For the reasons which
follow, this Court finds that such explanation is insufficient justification to explain his
belated filing, that his claim is frivolous, and that his petition should be dismissed.
II. 	LEGAL STANDARD & ANALYSIS
According to 28 U.S.C. § 2255, a one-year period of limitations applies to a
motion attacking a sentence by a person in federal custody, and that time period
runs from the latest of the following:
(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 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
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(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(f).
Here, with the Second Circuit affirmed Jimenez’s conviction on October 30,
2020, Jimenez’s deadline for his filing of a petition for certiorari was on or about
January 28, 2021. Rabbani v. United States, 156 F. Supp. 3d 396, 402 (W.D.N.Y.
2016) (“It is well established that for purposes of § 2255(f)(1), a judgment of
conviction becomes final when the time expires for filing a petition for certiorari
contesting the appellate court's affirmation of the conviction ... [i.e.] 90 days after
entry of the Court of Appeals' judgment.” [quotations omitted]). Thus, his one-year
limitation period within which to file his §2255 began to run on that date. Clay v.
United States, 537 U.S. 522, 532, (2003)(“We hold that, for federal criminal
defendants who do not file a petition for certiorari with this Court on direct review, §
2255's one-year limitation period starts to run when the time for seeking such review
expires.”). Here, Jimenez’s motion was not filed until October 21, 2025, over three
and one-half years after his judgment of conviction in this case became final.
Sua sponte dismissal is appropriate where a Petitioner is given notice and an
opportunity to be heard. See Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000); cf.
Spinale v. United States, 277 F. App'x 108, 109 (2d Cir. 2008) (affirming sua sponte
dismissal of § 2255 petition without notice because it was unmistakably clear from
the facts alleged that the petition was untimely). Indeed, Rule 4(b) of the Rules
Governing Section 2255 Proceedings for the United States District Courts
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specifically contemplates that a court may dismiss a § 2255 motion before receiving
an answer or response from the respondent. Acosta, 221 F.3d at 123. Here,
Petitioner was given notice and an opportunity to be heard. Dkt. 163, 165.
Given such opportunity, Jimenez provided no satisfactory explanation for why
his motion was filed three-and-one-half years late.4 Petitioner's apparent
explanation for his failure to raise or pursue this claim is that he is not a lawyer.
However, “[t]he Second Circuit has held that ignorance does not constitute ‘good
cause’ to excuse procedural default in habeas petitions.” Keating v. Miller, No. 21-
CV-4065 (KAM)(LB), 2024 WL 356725, at *8 (E.D.N.Y. Jan. 31, 2024)(citing
Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993) (“Ignorance or
inadvertence will not constitute ‘cause.’”) and Santiago Gonzalez v. United States,
198 F. Supp. 2d 550, 554 (S.D.N.Y. 2002) (“pro se status and ignorance of the law
does not constitute cause”)), certificate of appealability denied, No. 24-542, 2024 WL
5470707 (2d Cir. Oct. 10, 2024); see also, Tapia-Garcia v. United States, 53
F.Supp.2d 370, 378 (S.D.N.Y. 1999); Neff v. United States, 971 F.Supp. 771, 774
(E.D.N.Y.1997).
Moreover, despite citing the wrong statute, Jimenez’s claim that the unlawful
possession of child pornography statute of which he was convicted, i.e., 18 U.S.C.
4 Although represented by counsel at the time of his original appeal, Jimenez failed to
challenge the constitutionality of the statute of which he was convicted, “[I]f a petitioner
fails to assert a claim on direct review, he is barred from raising the claim in a
subsequent § 2255 proceeding unless he can establish both cause for the procedural
default and actual prejudice resulting therefrom ....” DeJesus v. United States, 161 F.3d
99, 102 (2d Cir. 1998) (citing Bousley v. United States, 523 U.S. 614 (1998)).
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§2252A(a)(5)(B), is unconstitutional as applied to him on the ground that the
material he possessed had not been transported in interstate commerce and was
not intended for any economic or commercial use, see, Dkt. 162, p.7, has been
squarely rejected by the Second Circuit. United States v. Harris, 358 F.3d 221, 222-
223 (2d Cir. 2004). In short, the Court can find no shred of merit to either the
explanation offered by Jimenez as to the reason for his late-filing or to the claim he
seeks to raise therein. In view of the foregoing, this Court determines that 28 U.S.C.
§ 2255(f)(4) did not extend his time to file the petition. Accordingly, his petition must
be dismissed as untimely.
III. 	CONCLUSION
For the foregoing reasons, the § 2255 motion (Dkt. 162) is dismissed as
untimely and the Clerk of Court is directed to close the case.
“[W]hen a district court denies a § 2255 motion on procedural grounds, a
certificate of appealability may issue only upon a showing ‘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.’” Moshier v. United States, 402
F.3d 116, 117 (2d Cir. 2005)(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Jimenez has failed to make the required showing and therefore, the Court declines
to issue a certificate of appealability.
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IT IS SO ORDERED.
s/Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: January 12, 2026
Buffalo, New York
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