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United States v. Simard

United States District Court, D. Vermont

November 5, 2019

UNITED STATES OF AMERICA
v.
SHAWN SIMARD

          OPINION AND ORDER

          William K. Sessions III District Court Judge

         Defendant 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.

         Magistrate 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.

         Standard of Review

         A 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).

         Background

         Simard 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. § 2602.

         With an 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.

         Simard's 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.

         As 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.[1] 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, 2017.

         Discussion

         In 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.

         Here, 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 therefore timely.

         The 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 make ...


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