Beane v. United States of America

FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
HIrK i 0
CLERK
WALLACE ARTHUR BEANE,
5:2I-CV-05006-CBK
Petitioner,
vs. ORDER DENYING MOTION TO
UNITED STATES OF AMERICA, VACATE,SET ASIDE,OR CORRECT
SENTENCE AND ORDER DENYING
Respondent. CERTIFICATE OF APPEALABILITY
Petitioner pleaded guilty to production of child pornography. He was sentenced
by the Hon. Jeffrey L. Viken to 360 months imprisonment on July 29,2016. He appealed
his conviction and sentence to the United States Court of Appeals for the Eighth Circuit.
The appeal was dismissed on motion ofthe government based upon petitioner's waiver of
his right to appeal, which he agreed to in the plea agreement.
Petitioner has filed a motion to vacate, set aside, or correct his conviction and
sentence pursuant to 28 U.S.C. § 2255, contending that he received ineffective assistance
of counsel at sentencing. I have conducted an initial consideration ofthe motion, as
required by Rule 4 ofthe Rules Governing Section 2255 Proceedings for the United
States District Courts.
DECISION
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996(AEDPA),
Pub. L. No. 104-132, 28 U.S.C.§ 2255:
A 1-year period of limitation shall apply to a motion under this
section. The limitation 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 ofthe Constitution or laws ofthe
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
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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.
Any motion to vacate pursuant to 28 U.S.C.§ 2255 is untimely unless petitioner can set
forth a basis for tolling the one-year limitations period.
Petitioner's conviction became final over four years prior to the time it was filed.
He claims that he directed his attorney to file an appeal, counsel failed to file an appeal,
and petitioner did not become aware that counsel failed to file an appeal until four years
after his conviction and sentence. "[A] petitioner is entitled to equitable tolling only if he
shows(1)that he has been pursuing his rights diligently, and (2)that some extraordinary
circumstance stood in his way and prevented timely filing." Holland v. Florida. 560 U.S.
631, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130(2010)(internal quotation marks omitted).
Petitioner contends his motion was filed late because his attorney failed to file a direct
appeal. That is not true. Counsel did file a direct appeal on petitioner's behalf, despite
the fact that petitioner waived his right to appeal. A diligent person in petitioner's
circumstances would have discovered that the appeal was filed and dismissed well before
four years had elapsed.
In any event, petitioner's claim that counsel was ineffective in failing to challenge
the presentence report must fail. Petitioner contends that the district judge "could hardly
believe the fact that the attorney didn't challenge the presentence report." That sentence
is patently false. Judge Viken observed that the report was "appropriately unobjected to."
The sentencing record shows that counsel ably argued for the least sentence the judge
could impose. The defendant's sentencing range was 360- life, based upon a total
offense level of41 and a criminal history category ofIV. The statutory maximum
sentence was 360 months. The offense involved children as young as seven years old
who were drugged or provided alcohol prior to being photographed with petitioner's erect
penis. Petitioner contended that he was not in control ofthe situation but counsel ably
argued that he nonetheless should continue to receive the adjustment for acceptance of
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responsibility. Had petitioner been denied the adjustment, the guideline range would
have been life imprisonment.
Petitioner included with his motion to vacate a Freedom ofInformation Act
("FOIA")request for his defense attorney's credit report. Federal courts are not subject
to provisions of the FOIA. 5 U.S.C. § 551(1)(B).
ORDER
Now,therefore,
IT IS ORDERED that motion to vacate, set aside, or correct sentence is denied.
TO THE UNITED STATES COURT OE APPEALS FOR THE EIGHTH
CIRCUIT:
Petitioner filed a motion to vacate, set aside, or correct his conviction and sentence
for production of child pornography, contending that he had received ineffective
assistance of counsel at sentencing. Following initial review, the motion was denied as
untimely and on the merits.
Pursuant to 28 U.S.C. § 2253(c)(1), an appeal from an order denying a motion to
vacate may not be taken unless a judge issues a certificate of appealability. A certificate
of appealability may issue only ifthe applicant has made a substantial showing ofthe
denial ofa constitutional right. Petitioner did not and has not made a substantial showing
ofthe denial of a constitutional right.
IT IS HEREBY CERTIFIED that there does not exist probable cause of an
appealable issue with respect to the Court's order denying petitioner's motion to vacate.
This in no way hampers the petitioner's ability to request issuance ofthe certificate by a
circuitjudge pursuant to Fed^^^pp.P. 22.
DATED this<^^^ day1\pril, 2022.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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