United States District Court, C.D. Illinois, Urbana Division
ORDER AND OPINION
MICHAEL M. MIHM UNITED STATES DISTRICT JUDGE
matter is now before the Court on Petitioner Douglas H.
Spensley's (“Petitioner”) Motion to Vacate,
Set Aside or Correct Sentence under 28 U.S.C. § 2255.
(ECF No. 1). The Court granted Petitioner leave to file a
Motion addressing the timeliness of his claims, which he
filed on December 6, 2019. (ECF No. 4). The Government filed
a Response and Motion to Dismiss on December 20, 2019. (ECF
No. 5). For the reasons state below, Petitioner's §
2255 Motion is DISMISSED as untimely and the Government's
Motion to Dismiss is GRANTED.
January 26, 2011, a superseding indictment was issued where
Petitioner was charged with four counts of sexual
exploitation of a minor, in violation of 18 U.S.C. §
2252(a) and (e), and one count of possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B)
and (b)(2). (Cr. D. 48). On June 15, 2011, Petitioner pleaded
guilty to count five of the superseding indictment pursuant
to a plea agreement whereby he waived his rights to challenge
his conviction through collateral attack, in exchange for the
prosecution agreeing to dismiss counts one through four of
the superseding indictment and other sentencing concessions.
(Cr. D. 73). On October 7, 2011, the Court sentenced
Petitioner to 120 months imprisonment followed by fifteen
years of supervised release. (Cr. D. 87).
did not appeal his conviction and sentence. On November 12,
2019, Petitioner filed a § 2255 Motion. This Opinion
asserts that his habeas relief is not barred by the statute
of limitations because he has newly discovered evidence where
the Assistant U.S. Attorney and law enforcement allegedly
coerced his son into changing the account of events, and made
threats that if he were to petition this Court, the
prosecution would seek criminal charges against his son.
Petitioner also asserts a claim of actual innocence. The
Government argues that Petitioner has not shown his
negligence was excusable and therefore his § 2255 Motion
is barred by the statute of limitations. Additionally, the
Government contends that Petitioner waived his appellate and
collateral attack rights in the plea agreement from the
underlying criminal case.
Court need not address the merits of Petitioner's habeas
claims because the § 2255 Motion is barred by the
statute of limitations. See 28 U.S.C. §
2255(f)(1). Section 2255 contains a one-year statute of
limitations that runs from the following:
(1) the date on which the judgment of conviction becomes
(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
(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
(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).
October 7, 2011, the Court entered judgment against
Petitioner. (Cr. D. 88). Petitioner had fourteen days from
the entry of that judgment to file a notice of appeal. Fed.
R. App. P. 4(b). Petitioner never filed a notice of appeal;
therefore, the conviction became final when the deadline
expired on October 21, 2011. See Clarke v. United
States, 703 F.3d 1098, 1100 (7th Cir. 2013). Under
§ 2255(f), Petitioner had one year from the date upon
which his conviction became final to file his § 2255
Motion, but he failed to do so. Instead, Petitioner waited
eight years to file his motion and has not provided the Court
with any alleged facts that would trigger the applicability
of equitable tolling to bar the statute of limitations.
Id. at 1101. “[E]quitable tolling of the
limitation period . . . is warranted if extraordinary
circumstances outside of the petitioner's control prevent
timely filing of the habeas petition.” Moore v.
Battaglia, 476 F.3d 504, 506 (7th Cir. 2007). Petitioner
has not claimed any extraordinary circumstance that was
outside of his control for the past eight years. For
instance, the letter from Petitioner's previous attorney
clearly stated, “as you might
recall…[a]fter that hearing, an Assistant United
States Attorney and law enforcement agents coerced your son
into changing his ...