United States District Court, D. Oregon
PAUL ERIC PRESLEY, Eugene, OR, Petitioner Pro Se.
S. AMANDA MARSHALL, United States Attorney, NATALIE K. WIGHT, Assistant United States Attorney, Portland, OR, Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, Magistrate Judge.
Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2241 prose. For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) should be DENIED.
On July 8, 2009, a Judgment of Conviction was entered against Petitioner in the United States District Court for the Western District of Washington upon pleading guilty to one count of receipt of child pornography in violation of 18 U.S.C. §§ 2252(A)(a)(5)(A) and 2256; and failure to appear in violation 18 U.S.C. § 3146(a)(1). Petitioner was sentenced to 78 months of imprisonment, with 20 years of supervised release.
Petitioner did not file a direct appeal of his criminal convictions. On August 24, 2012, Petitioner filed a Motion to Vacate pursuant to 28 U.S.C. § 2255 in the Western District of Washington. Petitioner's Motion to Vacate included claims of ineffective assistance of counsel, actual innocence, vindictive prosecution, invalid indictment, conspiracy, and various due process violations. As to his actual innocence claim, Petitioner argued his pornographic images did not cross state lines and the images did not travel "knowingly" in "commerce."
On August 14, 2013, District Judge Benjamin Settle denied Petitioner's Motion to Vacate. Judge Settle found the§ 2255 motion was untimely, and that Petitioner failed to produce evidence of actual innocence to excuse the untimeliness. Specifically, Judge Settle stated:
[Petitioner] offers no explanation as to why he did not file this claim years ago. Nor does he offer any evidence, new or otherwise, that would persuade the Court that it should not have confidence in the providency of his plea and therefore the validity of his conviction. Conversely, there is compelling and unrebutted evidence of guilt, including clear and unmistakable evidence that [Petitioner] not only possessed images of child pornography but that at least some of these images had been produced outside the state of Washington.
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Further, in [Petitioner's] plea agreement, he admitted that he possessed images that had traveled through interstate commerce. Specifically, [Petitioner] admits:
Many of these images and movie files showed minors under the age of 12. Many of these images and movie files were produced outside the State of Washington, and many of these images and [sic] had been mailed, shipped or transported in interstate commerce by computer or by other means.
Resp. Exh. 6, p. 5. The judge denied a certificate of appealability, as did the Ninth Circuit Court of Appeals.
On June 11, 2013, Petitioner filed a successive§ 2255 motion to vacate. On August 27, 2013, Judge Settle referred the motion to vacate to the Ninth Circuit for consideration. On October 21, 2013, the Ninth Circuit denied the request for Petitioner to file a second or successive § 2255 motion. On October 25, 2013, Judge Settle denied the successive motion to vacate, finding it raised "essentially the same jurisdiction issue that was raised in his prior motion to vacate, set aside, or correct his sentence, " which the court had previously denied. Petitioner appealed, and on May 30, ...