United States v. Kumar
| Decision Date | 29 October 2020 |
| Docket Number | Case No. 2:15-cr-00185-KJD-GWH,Case No. 2:17-cv-3065-KJD |
| Parties | UNITED STATES OF AMERICA, Respondent, v. PRAKASH KUMAR, Movant. |
| Court | U.S. District Court — District of Nevada |
Presently before the Court is Movant's Motion to Enlarge Time to File § 2255 (#44) and Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 18 U.S.C. § 2255 (#45). The Government filed a response in opposition (#52) to both motions. Finally, before the Court is Defendant's Emergency Motion for Order Reducing or Modifying Sentence Under 18 U.S.C. § 3582 (#47). The Government filed a response in opposition (#49) to which Defendant replied (#51).
In June of 2014, a federal investigator conducted an online BitTorrent file-sharing investigation, and connected with a computer, which had files of child pornography available for sharing. The investigator was able to download 47 files containing images of child pornography. The files depicted minors under the age of ten engaged in sexual conduct with adults. The IP address associated with the downloaded images was associated with Movant's residence in Las Vegas, Nevada. Multiple devices were seized from the residence.
Movant had set up the home internet. Movant's wife spoke to investigators and explained that she did not use file sharing programs (leaving Movant as the BitTorrent user on multiple devices). Forensics showed numerous videos and images of prepubescent children engaged in sexual acts with adults on the Kumar's computers, phone, and other devices located in the residence. This included the BitTorrent software being installed on multiple devices.
In June 2015, a federal grand jury returned a one count indictment charging Defendant Kumar with receipt/distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2). Before his initial appearance, Kumar retained the services of Robert Draskovich, a federal practitioner with extensive experience defending child sexual abuse material cases. In May of 2016, Kumar entered into a favorable plea agreement with the government. Compared to the facts and guideline calculation in the PSR, that plea agreement provided (differences italicized):
Plea Agreement Presentence Investigation Report Base Offense Level 22 Base Offense Level 22 Prepubescent Minor +2 Prepubescent Minor +2 Distribution +2 Distribution +2
Sadistic/Masochistic Images +4
Use of a Computer +2 Use of a Computer +2
Number of Images +3
Number of Images +5 Acceptance of Responsibility -3 Acceptance of Responsibility -3 Adjusted Offense Level 28 Adjusted Offense Level 34 Guideline Range 78-97 Months Guideline Range 151-188 Months
Draskovich had negotiated a very favorable resolution, including limiting the government's ability to argue for a higher sentence.
Kumar's plea agreement also included express waivers of almost all appeal and post-conviction rights and remedies. Kumar reserved only two exceptionally narrow rights - (1) "the right to appeal any portion of the sentence that [was] an upward departure from the Sentencing Guidelines range determined by the Court," and (2) the right to raise "non-waivable claims of ineffective assistance of counsel" in a § 2255 petition. The Court accepted Kumar's plea.
Draskovich filed a lengthy sentencing memorandum urging the Court to adopt the guidelines in the plea agreement over those in the PSR. This Court adopted the guidelines in theplea agreement. On October 26, 2016, the Court sentenced Kumar to 78 months in custody, with 25-years of supervised release to follow. The Court entered the Judgment on October 28, 2016, and corrected the docket text on October 31, 2016, without changing the Judgment. More than a year later, on December 11, 2017, Kumar filed the instant pro se § 2255 in addition to seeking an extension of time. On August 3, 2020, the Court ordered the government to respond to Defendant's motions.
A one-year period of limitation applies to a motion brought pursuant to 28 U.S.C. § 2255 ("2255"). The limitation period runs from the latest of:
28 U.S.C. § 2255(f). Kumar has not raised any arguments, or pointed to any facts, that would suggest one of the dates provided for by subsections 2255(f)(2), (3), or (4) would apply. Therefore, the clock on his 2255 motion began to run on the date that his judgment became final.
For a federal habeas petitioner, a judgment becomes final and the period to file a 2255 motion begins "upon the expiration of the time during which [the petitioner] could have sought review by direct appeal." United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001). Kumar did not file a direct appeal. By operation of law, then, the judgment became final upon expiration of the time for Kumar to file an appeal (14 days after entry of judgment). See Fed. R. App. P. 4(b)(1). Judgment was entered on October 28, 2016. Thus, for purposes of 28 U.S.C. § 2255(f)(1), Kumar had until November 11, 2017, to timely file a § 2255 motion challenging the Judgment. Because Kumar filed his motion on December 11, 2017, the motion is untimely.
The Ninth Circuit permits equitable tolling of the 2255 statute of limitations "only if 'extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). The Ninth Circuit has stated that "district judges will take seriously Congress' desire to accelerate the federal habeas process, and will only authorize extensions when this high hurdle is surmounted." Calderon v. United States Dist. Ct., 128 F.3d 1283, 1289 (9th Cir. 1997), cert. denied, 522 U.S. 1099, 118 S. Ct. 899 (1998), overruled on other grounds, Calderon v. United States Dist. Ct., 163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060, 119 S. Ct. 1377 (1999). In fact, because the clearly established purpose of the one year period of limitation is to "accelerate the federal habeas process," the Ninth Circuit has concluded that "[e]quitable tolling will not be available in most cases." See id.
Defendant bears the burden of proving that he merits equitable tolling because he asserts that his late filing resulted from extraordinary circumstances. Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005); Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). But Kumar's reasons for seeking an extension of time are not "extraordinary circumstances" that require equitable tolling of the period of limitation. Though access to typewriters and/or research terminals may be limited, he had one year to prepare his petition and has presented no evidence that this was insufficient to overcome scheduling issues with the typewriters.
As argued by the government, if the Court adopted Kumar's assertions, every person housed at FCI Terminal Island is eligible for equitable tolling because of an alleged undersupply of typewriters and legal research terminals. However, if a situation equally effects 1,200 inmates, then it cannot be extraordinary. To be sure, Kumar's situation is not extraordinary—it is the standard condition of prison confinement. Given the common day-to-day security restrictions in prison, concluding otherwise would permit the exception to swallow the rule, and AEDPA's limitations period would be tolled for every prisoner. Preparation and planning are within the resources of each inmate, and in this case, Kumar. Therefore, the Court denies Kumar's motion to extend time. His petition is untimely and must be dismissed.
Out of an abundance of caution, and to promote judicial efficiency, the Court will, alternatively, analyze each of Petitioner's claims on the merits. Even if the present motion was timely, the Court would deny Petitioner's claims.
The right to appeal or collaterally attack one's sentence is derived by statute, and "[a] knowing and voluntary waiver of a statutory right is enforceable." United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). The Ninth Circuit has further explained that "public policy strongly supports" plea agreements containing such waivers, reasoning that finality is "perhaps the most important benefit of plea bargaining." United States v. Navarro-Botello, 912 F.2d 318, 322 (9th Cir. 1990). A waiver of the right to appeal or collaterally attack a sentence or conviction is "is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made." United States v. Lo, 839 F.3d 777, 783 (9th Cir. 2016) (internal citations omitted) (citing United States v. Medina-Carrasco, 815 F.3d 457, 461 (9th Cir. 2016)); see, e.g., United States v. McTiernan, 552 F. App'x 749, 750 (9th Cir. 2014).
Further, an otherwise valid waiver is not rendered unenforceable by a subsequent change in the applicable sentencing law. See United States v. Johnson, 67 F.3d 200, 202 (9th Cir. 1995) (); see also United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005) (...
To continue reading
Request your trial