United States District Court, D. Vermont
OPINION AND ORDER
William K. Sessions III District Court Judge
Shawn Simard, through counsel, has moved pursuant to 28
U.S.C. § 2255 to set aside the judgment in this case and
correct his sentence. Simard requests re-sentencing because
the prior state court conviction used to enhance his federal
sentence has since been vacated. The government does not
contest the substance of Simard's request, but opposes
the motion as untimely and for lack of due diligence in
pursuing post-conviction relief in state court.
Judge John M. Conroy issued a Report and Recommendation
recommending denial of Simard's motion for lack of due
diligence. Simard has filed an objection to the Report and
Recommendation. For the reasons set forth below, the Court
finds that Simard's Section 2255 motion is not untimely,
and that given the lack of clarity in Vermont law, the advice
received from counsel, and the challenges specific to Simard
while incarcerated, his pursuit of post-conviction review in
state court did not lack due diligence. The motion for habeas
corpus relief is therefore granted.
district judge must make a de novo determination of
those portions of a magistrate judge's report and
recommendation to which an objection is made. Fed.R.Civ.P.
72(b); 28 U.S.C. § 636(b)(1); Cullen v. United
States, 194 F.3d 401, 405 (2d Cir. 1999). The district
judge may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28
U.S.C. § 636(b)(1); accord Cullen, 194 F.3d at
405. A district judge is not required to review the factual
or legal conclusions of the magistrate judge as to those
portions of a report and recommendation to which no
objections are addressed. Thomas v. Arn, 474 U.S.
140, 150 (1985).
is currently serving a federal sentence after pleading guilty
to possession of child pornography in violation of 18 U.S.C.
§ 2252(a)(4)(B). At his August 13, 2012 sentencing,
Simard faced a mandatory minimum term of ten years in prison
as a person previously convicted of sexually abusing a minor.
See 18 U.S.C. § 2252(b)(2). The underlying
offense was a 2004 state court conviction for lewd and
lascivious conduct with a child in violation of 13 V.S.A.
adjusted offense level of 30 and a Criminal History Category
of III, Simard's advisory Guideline range was 121-151
months. The Court sentenced him to 121 months in prison, to
be followed by 15 years of supervised release. Simard pursued
a direct appeal, and the Second Circuit affirmed his
sentence. The Supreme Court denied his petition for a writ of
certiorari on April 21, 2014.
state court conviction was vacated in 2016. According to his
state petition for post-conviction relief, filed by the
Vermont Prisoners' Rights Office on February 16, 2016,
the trial court never asked Simard during his change of plea
colloquy whether he admitted to the facts establishing the
elements of the crime. Instead, the court asked whether he
understood the charge, and the only agreement to underlying
facts came from defense counsel. ECF No. 114-1 at 1.
discussed below, Vermont law has been unclear in recent years
about the requirements of Rule 11 plea proceedings. In
Simard's case, the State stipulated to granting his
post-conviction review petition, and on April 11, 2016 the
state court signed the Entry Order vacating his state court
conviction. The vacatur re-opened the criminal
proceeding, and the charge against Simard has since been
dismissed. Simard filed his Section 2255 motion on April 10,
Johnson v. United States, 544 U.S. 295, 302 (2005),
the Supreme Court held that a state court's decision
vacating a prior conviction is a “fact” that
restarts the Section 2255 one-year limitation period, so long
as the defendant sought vacatur of his conviction with due
diligence. Johnson found that a defendant must move
for relief in state court “as soon as he is in a
position to realize that he has an interest in challenging
the prior conviction with its potential to enhance the later
sentence, ” and that the duty to act with due diligence
begins on “the date of judgment” in his federal
case. 544 U.S. at 308-09.
the government submits that Simard failed to file his Section
2255 motion within the one-year limitations period. As noted
above, Simard filed his motion within one year of the Entry
Order vacating his state court conviction. His filing was
government also contends that Simard failed to satisfy
Johnson's due diligence requirement. The Second
Circuit has determined that the federal habeas corpus statute
“does not require the maximum feasible diligence, only
‘due,' or reasonable diligence.” Wims v.
United States, 225 F.3d 186, 190 n.4 (2d Cir. 2000);
see also Jefferson v. United States, 730 F.3d 537,
544 (6th Cir. 2013). “Due diligence therefore does not
require a prisoner to undertake repeated exercises in
futility or to exhaust every imaginable option, but rather to