Reynolds v. United States

Decision Date12 March 2018
Docket NumberCase No. 15-CV-26-NJR,Criminal No. 11-30027-NJR
PartiesMARK A. REYNOLDS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
CourtU.S. District Court — Southern District of Illinois

ROSENSTENGEL, District Judge:

Currently before the Court is a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 filed by Mark Reynolds (Doc. 1). The Court has carefully considered the briefs and all the exhibits submitted by the parties, and for the reasons set forth below, the motion is dismissed as untimely.


On February 24, 2011, Mark Reynolds was charged by indictment with one count of enticement of a minor in violation of 18 U.S.C. §§ 2422(b) and 2260A and one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). United States v. Reynolds, SDIL Case No. 3:11-cr-30027, Doc. 1.1 The enticement charge is at issue in the current proceedings. The indictment specifically charged:

On or about the 13th day of January, 2011, in Madison County, in the Southern District of Illinois, Mark A. Reynolds, defendant herein, did knowingly use any facility of interstate and foreign commerce, toknowingly persuade, induce, entice, and coerce any individual who had not attained the age of 18 years to engage in any sexual activity for which any person could be charge with a criminal offense, that is, the production of child pornography, in violation of Title 18, United States Code, Section 2251(a); all in violation of Title 18, United States Code, Section 2422(b); in further violation of Title 18, United States Code, Section 2260A.

Id. at Docs. 1, 16.

Reynolds pleaded guilty to both the enticement charge and the receipt of child pornography charge, and as part of his plea, he entered into a stipulation of facts with the Government. SDIL Case No. 3:11-cr-30027, Docs. 26, 27. The stipulation indicates that, in January 2011, while Reynolds was registered as a sex offender, he engaged in sexually explicit conversations over the internet with a 16-year-old female. Id. He sent the girl photos of a nude penis, and at his request, the girl sent him photos of her breasts and genitalia. Id. Reynolds stipulated that the photo of the girl's genitalia constituted child pornography and that "[b]y using the internet, which is a facility of interstate commerce, to persuade, induce, or entice [the girl] to send him the pictures . . . [he] could have been charged with Production of Child Pornography, in violation of 18 U.S.C. § 2251(a)." Id. Reynolds further stipulated that a number of images and videos of child pornography were found on various electronic devices seized from his house. Id.

On August 8, 2011, Reynolds was sentenced by District Judge G. Patrick Murphy to a total term of 360 months' imprisonment.2 SDIL Case No. 3:11-cr-30027, Doc. 40. More specifically, Reynolds was sentenced to 240 months on Count 1, to runconcurrently with a term of 180 months on Count 2. Id. at Doc. 43. And, because Reynolds was a registered sex offender at the time he committed his federal crimes, the Court imposed an additional mandatory term of 120 months pursuant to 18 U.S.C. § 2260A, which had to run consecutive to the sentences imposed on Counts 1 and 2. Id. at Doc. 43; see also id. at Docs. 33, 52. Judgment was entered on August 11, 2011. Id. at Doc. 43. Reynolds did not file a notice of appeal. On January 9, 2015, approximately three and a half years after he was sentenced, Reynolds filed this § 2255 motion.

In his motion, Reynolds claims his attorney and the prosecutor both misrepresented to him that his conduct as alleged in the indictment constituted enticement of a minor and violated § 2422(b) regardless of whether or not "he physically touched a minor or took substantial steps to accomplish touching a minor" (Doc. 1). Reynolds claims the Seventh Circuit's decision in United States v. Taylor, 640 F.3d 255 (7th Cir. 2011), dictates that an individual cannot be convicted of enticing a minor to engage in a criminal sexual activity under § 2422(b) unless the individual attempts or intends physical contact with the victim. Reynolds also claims that his attorney misadvised him that he was subject to a mandatory 120-month consecutive sentence under 18 U.S.C. § 2260A. Reynolds now believes the enhanced penalty under § 2260A was illegally imposed because it was not charged as a separate offense in the indictment. Based on these purported misrepresentations, Reynolds contends that he received ineffective assistance of counsel when he was advised to plead guilty to the charge of enticement and, as part of his plea, to waive his right to appeal or collaterally attack his conviction and sentence.

The Government responded and asked the Court to dismiss Reynolds's motion because it is (1) untimely, (2) barred by the appellate and collateral review waiver in the plea agreement, and (3) meritless (Doc. 5). Reynolds then filed a reply, arguing that his motion was timely under 28 U.S.C. § 2255(f)(4), or in the alternative, that he is entitled to equitable tolling of the limitations period (Doc. 7). Reynolds further argues that the waiver in his plea agreement is not enforceable and that he, in fact, received ineffective assistance of counsel (Doc. 7).


28 U.S.C. § 2255 requires a court to vacate, set aside, or correct the sentence of a prisoner in custody if it finds that "the sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. "[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006)). Thus, it "is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice." Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013) (citations omitted).

A. Request for Counsel

Before turning to the § 2255 motion, the Court must address Reynolds's pending motion for appointment of counsel (Doc. 8). A litigant is not entitled to appointedcounsel in a federal post-conviction proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Powell v. Davis, 415 F.3d 722, 727 (7th Cir. 2005). However, a district court has the discretion to appoint counsel if "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B); Winsett v. Washington, 130 F.3d 269, 281 (7th Cir. 1997) (citing LeClair v. United States, 374 F.2d 486, 489 (7th Cir. 2967)). The court will abuse its discretion in denying a request for counsel only "if, given the difficulty of the case and the litigant's ability, [he] could not obtain justice without an attorney, he could not obtain a lawyer on his own, and he would have had a reasonable chance of winning with a lawyer at his side." Winsett, 130 F.3d at 281 (internal alterations and citation omitted). Ordinarily, the litigant must make some effort to obtain counsel on his own, or demonstrate that he has been effectively precluded from doing so, before seeking the appointment of counsel by the Court. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007).

Here, Reynolds's motion is only one sentence long and he simply asks the Court to appoint counsel (Doc. 8). He makes no mention of why he believes he needs an attorney. He also makes no mention of whether he has made any effort to obtain counsel on his own or been hindered in his efforts to do so. The Court notes that this matter was already fully briefed by the time Reynolds asked for counsel (see Docs. 1, 5, and 7). Reynolds's filings demonstrate that he is informed about the facts and proceedings and able to coherently present his arguments. As is detailed below, Reynolds's petition is untimely and there is nothing before the Court to suggest that appointed counsel could have changed that. Under these circumstances, Reynolds's request for counsel is denied.

B. Timeliness

The Court chooses to first address whether the § 2255 motion is timely. The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes that prisoners have a one-year limitations period in which to file a habeas corpus petition. 28 U.S.C. § 2255(f). The one-year period begins to run from the latest of:

(1) the date on which the judgment of conviction become 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 constitutional 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). Ordinarily, the limitations period is governed by subsection (f)(1) and runs from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). In this case, the judgment of conviction was entered on August 11, 2011, and it became final fourteen days later when the time to file a notice of appeal expired. See Clarke v. United Sates, 703 F.3d 1098, 1100 (7th Cir. 2013) ("the sentence did not become final until the deadline for filing a notice of appeal expired); FED. R. APP. P. 4(b) (providing that a defendant's notice of appeal must be filed in the district court within fourteen days of the entry of judgment). Reynolds did not file his § 2255 motion until January 9, 2015, well past the usual one-year deadline.

Recognizing that his motion is untimely under subsection (f)(1),...

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