Hannigan v. United States

• Decision Date: 10 March 2015
• Docket Number: No. 7:14–CV–122–D,No. 7:09–CR–133–D,7:09–CR–133–D
• Citation: 131 F.Supp.3d 480
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Christopher Matthew Hannigan, Petitioner, v. United States of America, Respondent.

131 F.Supp.3d 480

Christopher Matthew Hannigan, Petitioner,

v.United States of America, Respondent.

No. 7:09–CR–133–D

No. 7:14–CV–122–D

United States District Court, E.D. North Carolina, Southern Division.

Signed March 10, 2015

Joe Exum, Jr., Seth Morgan Wood, Stephen A. West, United States Attorney's Office, Raleigh, NC, for Respondent.

ORDER

JAMES C. DEVER III

, Chief United States District Judge

On June 5, 2014, Christopher Matthew Hannigan ("Hannigan") moved pursuant to 28 U.S.C. § 2255

to vacate, set aside, or correct his 336–month sentence. See [D.E. 33]. On July 22, 2014, the United States ("government") moved to dismiss Hannigan's section 2255 motion as untimely and filed a supporting memorandum. See [D.E. 37, 38]. On August 29, 2014, Hannigan responded in opposition. See [D.E. 43]. As explained below, the court grants the government's motion to dismiss and dismisses Hannigan's section 2255 motion as untimely.

I.

On October 14, 2009, a federal grand jury in the Eastern District of North Carolina indicted Hannigan and charged him with one count of manufacturing child pornography in violation of 18 U.S.C. §§ 2251(a)

and (d) (count one), two counts of distributing child pornography in violation of 18 U.S.C. § 2252(a)(1) (counts two and three), twelve counts of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) (counts four through fifteen), one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (count sixteen), and one count of transporting obscene matters over the Internet in violation of 18 U.S.C. § 1462 (count seventeen). See Indictment [D.E. 1]. On January 13, 2010, Hannigan pleaded guilty, pursuant to a written plea agreement [D.E. 22], to count one. See Rule 11 Tr. [D.E. 46] 4–21, 25–32.

On May 5, 2010, the court sentenced Hannigan to 336 months' imprisonment and a lifetime of supervised release. See Sentencing Tr. [D.E. 47] 15. The sentence was within the advisory guideline range calculated at sentencing of 292 to 360 months' imprisonment. See id. 5–6. The court entered judgment on May 13, 2010. See [D.E. 30]. Hannigan did not appeal, and his judgment of conviction became final on May 13, 2010. See, e.g.,United States v. Sanders, 247 F.3d 139, 142 (4th Cir.2001)

; cf.Clay v. United States, 537 U.S. 522, 532, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) ("[F]or federal criminal defendants who do not file a petition for certiorari with [the Supreme] Court on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires.").¹

On June 5, 2014, over four years after his conviction became final, Hannigan filed his section 2255

motion. See [D.E. 33]. Hannigan states five grounds for relief. Seeid. 4–12. First, Hannigan contends that his defense counsel was constitutionally ineffective for failing to file a notice of appeal as directed. Seeid. 4–5. Second, Hannigan contends that the court's application at sentencing of U.S.S.G. § 4B1.5 for engaging in a pattern of activity involving prohibited sexual conduct violated the Fifth and Sixth Amendments in light of Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Seeid. 5–6. Third, Hannigan contends that his defense counsel was constitutionally ineffective for failing to subject the case to adversarial testing, failing to investigate the case, and for recommending that Hannigan plead guilty. Seeid. 7–9. Fourth, Hannigan contends that, at the sentencing hearing, his defense counsel was constitutionally ineffective for failing to ask the court to permit Hannigan to withdraw his guilty plea when the government allegedly admitted during the sentencing hearing that the minor victim in count one initiated the video feed that prompted Hannigan to ask the minor to perform a sex act, which Hannigan then recorded. Seeid. 9–10. In Hannigan's view, the minor's initiation of the video feed absolves Hannigan of manufacturing child pornography. See id. Fifth, Hannigan contends that before he pleaded guilty, his defense counsel was constitutionally ineffective for failing to obtain a psychiatric examination of Hannigan, for miscalculating the advisory guideline range, and for erroneously advising Hannigan that he would receive a one-year reduction in his sentence if he successfully completed the Residential Drug Abuse Program. Seeid. 11–12.

In response, the government moved to dismiss Hannigan's motion as untimely, citing the one-year statute of limitations in 28 U.S.C. § 2255(f)

. See [D.E. 38]. In reply, Hannigan argues (1) that his section 2255 motion is timely under section 2255(f)(3) due to Alleyne and Whiteside v. United States, 748 F.3d 541 (4th Cir.), overruled. 775 F.3d 180 (4th Cir.2014) (en banc), (2) that his section 2255 motion is timely under section 2255(f)(4) because he acted with "due diligence," and (3) that equitable tolling should apply under Maples v. Thomas, ––– U.S. ––––, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012), because his defense counsel abandoned him. See [D.E. 43].

II.

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure

for "failure to state a claim upon which relief can be granted" tests whether the complaint is legally and factually sufficient. SeeAshcroft v. Iqbal, 556 U.S. 662, 677–78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562–63, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.2010), aff'd, ––– U.S. ––––, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012) ; Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.2008) ; accordErickson v. Pardus, 551 U.S. 89, 93–94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). In considering a motion to dismiss, a court need not accept a complaint's legal conclusions drawn from the facts. See, e.g.,Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Similarly, a court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); seeIqbal, 556 U.S. at 677–79, 129 S.Ct. 1937. Moreover, a court may take judicial notice of public records without converting a motion to dismiss into a motion for summary judgment. See, e.g., Fed.R.Evid. 201 ; Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ; Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir.2009)

. In reviewing a section 2255 motion to vacate, the court is not limited to the motion itself. The court also may consider "the files and records of the case." 28 U.S.C. § 2255(b) ; seeUnited States v. McGill, 11 F.3d 223, 225–26 & n. 1 (1st Cir.1993).

A.

Section 2255(f)

contains a one-year statute of limitations for petitions for collateral review. Section 2255(f) provides that the one-year clock is triggered by one of four conditions, whichever occurs last:

(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 of the Constitution or laws of the 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 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)(1)-(4)

; Johnson v. United States, 544 U.S. 295, 299–300, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005) ; Whiteside v. U.S., 775 F.3d 180, 182–83 (4th Cir.2014).

1.

As for section 2255(f)(1)

, Hannigan filed his section 2255 motion on June 5, 2014, more than four years after his judgment of conviction became final. Thus, Hannigan's section 2255 motion is untimely under 28 U.S.C. § 2255(f)(1). See, e.g.,United States v. Mathur, 685 F.3d 396, 397–98 (4th Cir.2012) ; United States v. Thomas, 627 F.3d 534, 535 (4th Cir.2010).

2.

As for section 2255(f)(3)

, Hannigan argues that his section 2255 motion is timely under section 2255(f)(3) due to the Supreme Court's decision in Alleyne and the Fourth Circuit's panel opinion in Whiteside. See [D.E. 43] 4-5. Section 2255(f)(3) and Alleyne, however, provide Hannigan no relief because Alleyne is not retroactively applicable to cases on collateral review. See, e.g.,United States v. Stewart, 540 Fed.Appx. 171, 172 n. * (4th Cir.2013) (per curiam) (unpublished); see alsoIn re Mazzio, 756 F.3d 487, 489–91 (6th Cir.2014) ; United States v. Winkelman, 746 F.3d 134, 136 (3d Cir.2014) ; United States v. Harris, 741 F.3d 1245, 1250 n. 3 (11th Cir.2014) ; United States v. Redd, 735 F.3d 88, 91–92 (2d Cir.2013) (per curiam); In re Payne, 733 F.3d 1027, 1029–30 (10th Cir.2013) (per curiam); In re Kemper, 735 F.3d 211, 212 (5th Cir.2013) (per curiam); Simpson v. United States, 721 F.3d 875, 876 (7th Cir.2013). Moreover, the Fourth Circuit sitting en banc vacated and reversed the Whiteside panel opinion and affirmed the decision of the district court. SeeWhiteside, 775 F.3d at 182–84, 187. Thus, Whiteside and section 2255(f)(3) do not help Hannigan. Accordingly, Hannigan's section 2255 motion is untimely under 28 U.S.C. § 2255(f)(3).

3.

As for section 2255(f)(4)

, Hannigan argues that he filed his section 2255 motion within one year of 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)(4) ; see [D.E. 43] 5–7. In support, Hannigan contends that he first learned that his defense counsel did not file an appeal on October 1, 2013, when the clerk of this court responded to his September 2013 written request for a copy of the docket. See [D.E. 33] 14. Thus, because he filed his section 2255

motion before October 1, 2014, Hannigan argues that his section 2255 motion is timely under section 2255(f)(4). Se...