United States v. Mount
| Decision Date | 06 March 2023 |
| Docket Number | 16-CR-237 (SRN/BRT) |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JEREMY DAVID MOUNT, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Katharine T. Buzicky, United States Attorney's Office for Plaintiff.
Jeremy David Mount, Pro Se.
This matter is before the Court on Defendant Jeremy David Mount's Pro Se Motion for Relief from Final Judgment in 2255 Proceeding Pursuant to Fed.R.Civ.P. 60(b) (“Rule 60(b) Motion”) [Doc. No. 231]. Also before the Court are several other motions filed by Mount: (1) Application to Proceed in District Court Without Prepaying Fees or Costs (“IFP Application”) [Doc. No. 217]; (2) Pro Se Petition and Notice of Intent to Begin[] Legal Action for Disclosure of Exculpatory Evidence [Doc. No. 227]; (3) Pro Se Motion/Request to Invoke Equitable Tolling Doctrine [Doc. No 233]; and (4) Motion for Leave of Court to Obtain Discovery [Doc. No. 236]. Based on a review of the file, record and proceedings therein, and for the reasons set forth below, the Court denies Mount's Rule 60(b) Motion denies as moot his IFP Application, denies his Pro Se Petition and Notice of Intent to Begin[] Legal Action for Disclosure of Exculpatory Evidence, denies as moot his Pro Se Motion/Request to Invoke Equitable Tolling Doctrine, and denies his Pro Se Motion for Leave of Court to Obtain Discovery.
In August and September 2016, the Government charged Mount with three child pornography offenses. (See Compl. [Doc. Nos. 1 & 3]; Indictment [Doc. No. 12].) Although counsel from the Federal Defender's Office initially represented him, shortly thereafter, Mount privately retained attorney Ashli Summer McKeivier as counsel. (See Sept. 29, 2016 Order [Doc. No. 21].)
On February 8, 2017, Mount pleaded guilty to two of the three counts in the Indictment-the receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1), (Indictment, Count 2), and the production and attempted production of child pornography, in violation of 18 U.S.C. §§ 2251(a) and 2251(e) (id., Count 3). (Feb. 8, 2017 Minutes [Doc. No. 32].) The signed Plea Agreement identified the factual predicates for Counts 2 and 3, and in his sworn testimony at the plea hearing, Mount admitted to these factual predicates, and admitted his guilt to both offenses.
Pursuant to the Plea Agreement, Mount agreed to waive his appellate rights unless his sentence exceeded 327 months, and agreed to waive his rights to collateral review, except for claims of ineffective assistance of counsel. (Plea Agmt. ¶ 10.) In exchange for his guilty plea, the Government agreed to move to dismiss, at sentencing, the remaining count for advertising child pornography, in violation of 18 U.S.C. §§ 2251(d)(1)(A) and 2251(e). (Id. ¶ 1; Indictment, Count 1.)
At the July 27, 2017 sentencing hearing, the Court granted the Government's motion to dismiss Count One, and sentenced Mount to a total term of imprisonment of 262 months on the remaining counts. (Sentencing J. [Doc. No. 54] at 1-2.) The 262-month sentence was at the bottom of the applicable Sentencing Guidelines range, and also at the very bottom of the range that the parties contemplated in the Plea Agreement. (Plea Agmt. ¶ 6.)
At Mount's sentencing hearing, the Court advised him that he had 14 days to appeal his conviction or sentence, or both, upon the Court's entry of judgment in this case. (Sentencing Hr'g Tr. [Doc. No. 91] at 25); see Fed. R. App. P. 4(b)(1). The Court issued its Sentencing Judgment on August 1, 2017 [Doc. No. 54], which gave Mount until August 15, 2017 to file a notice of appeal. Fed. R. App. P. 4(b)(1). No notice of appeal was filed within that time period. Mount's subsequent pro se effort to file a notice of appeal, dated October 20, 2017 [Doc. No. 61], was rejected by the Eighth Circuit Court of Appeals as untimely. (8th Cir. J. [Doc. No. 67] at 1.)
On July 16, 2018, Mount filed a motion for collateral relief under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence (“§ 2255 Motion” [Doc. No. 70]), asserting a claim of ineffective assistance of counsel on several grounds. In an October 20, 2020 Order [Doc. No. 164], the Court denied the majority of Mount's grounds for relief, but deferred ruling on his ineffective assistance claim based on counsel's failure to timely file a notice of appeal, finding it necessary to hold an evidentiary hearing.
On September 9, 2021, the Court held the evidentiary hearing at which Mount was represented by counsel. (Sept. 9, 2021 Minutes [Doc. No. 199].) Both he and his former counsel, Ms. McKeivier, testified regarding their recollections of communications concerning an appeal. (See Oct. 4, 2021 Order [Doc. No. 202] at 1, 7-15.) In the Court's October 4, 2021 ruling on this remaining ground for § 2255 relief, it found that Mount had not clearly communicated to Ms. McKeivier his wish that she file a notice of appeal on his behalf, and the Court therefore denied relief. (Id.) In addition, the Court denied Mount a certificate of appealability concerning all of his grounds for relief under § 2255.[1] (Id. at 15.)
In November 2021, Mount appealed to the Eighth Circuit Court of Appeals [Doc. No. 212].[2] The Eighth Circuit denied Mount a certificate of appealability [Doc. No. 222], and denied his subsequent request for rehearing en banc. Mount v. United States, No. 21-3747, Order Denying Reh'g (8th Cir. Apr. 13, 2022).
In addition, Mount separately sought reconsideration from this Court of its § 2255 rulings, which the Court denied [Doc. No. 226].
As to Mount's pending motions, his primary motion, the Rule 60(b) Motion, seeks substantive relief from the judgment in his § 2255 proceeding. The Court addresses this motion first, then addresses the remaining motions.
Mount seeks relief from the judgment on his § 2255 Motion pursuant to Federal Rule of Civil Procedure 60(b).[3] He argues that the Court has jurisdiction to entertain his current motion because the motion attacks a defect in the federal habeas proceeding, and “not a merit[s] issue.” (Def.'s R. 60(b) Mot. at 1-2.) He argues that the Court erred in denying him collateral relief under § 2255 on the following grounds: (1) Ms. McKievier's alleged refusal to file a notice of appeal; (2) Ms. McKievier's purported failure to explain the advantages of an appeal, as opposed to the disadvantages; (3) the Court's “unreasonable interpretation of case law” concerning the delay between Mount's initial request for an appeal and his subsequent call with former counsel; and (4) the adequacy of the factual basis for judgment on Count 3 of the Indictment. (Id. at 5-8, 8-11, 12-13, 14-17.)
In response, the Government argues that Mount simply seeks to relitigate the claims from his earlier § 2255 Motion, and therefore his Rule 60(b) Motion is actually an unauthorized second or successive § 2255 motion, which the Court lacks jurisdiction to consider. (Gov't's Opp'n [Doc. No. 235] at 1.)
Under 28 U.S.C. § 2255, a prisoner in federal custody has a limited opportunity to challenge the constitutionality, legality, or jurisdictional basis of a sentence imposed by a court. The law limits a defendant to one § 2255 motion unless he obtains certification for a second or successive motion from the appropriate Court of Appeals. See 28 U.S.C. §§ 2244, 2255(e), (h). A defendant may not bypass the authorization requirement of § 2255 by purporting to invoke some other procedure. See United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005) (per curium) (“It is well-established that inmates may not bypass the authorization requirement of 28 U.S.C. § 2244(b)(3) for filing a second or successive § 2254 or § 2255 action by purporting to invoke some other procedure.”), cert. denied, 545 U.S. 1135 (2005). Accordingly, the Eighth Circuit has instructed that when a petitioner files a Rule 60(b) motion in a closed habeas proceeding-like the one at issue-a district court should “conduct[] a brief initial inquiry to determine whether the allegations in the Rule 60(b) motion in fact amount to a second or successive collateral attack under either 28 U.S.C. § 2255 or § 2254.” Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002), cert. denied, 538 U.S. 953 (2003); see also United States v. Patton, 309 F.3d 1093 (8th Cir. 2002) (collecting cases). If the Rule 60(b) motion is “actually a second or successive habeas petition, the district court should dismiss it for failure to obtain authorization from the Court of Appeals or, in its discretion, [] transfer the [] motion to the Court of Appeals.” Boyd, 304 F.3d at 814.
District courts have jurisdiction to consider Rule 60(b) motions in habeas proceedings only if the motion attacks not the substance of the court's resolution of the claim on the merits, but “some defect in the integrity of the habeas proceedings.” United States v. Lee, 792 F.3d 1021, 1023 (8th Cir. 2015) (citing Gonzalez v Crosby, 545 U.S. 524, 532 (2005)); Rouse v. United States, No. CIV 06-4008, 2020 WL 1287986, at *4 (D.S.D. Mar. 18, 2020). For instance, fraud on the court or the misapplication of the one-year statute of limitations for § 2255 motions are examples of permissible Rule 60(b) challenges to the integrity of the habeas proceedings. 7 Wayne R. LaFave, et al., Criminal Procedure § 28.5(d) (4th ed. 2022). In contrast, a district court's resolution of a § 2255 claim “on the merits” refers to “a determination that there exist or do not exist grounds entitling petitioner to habeas corpus relief .... ” Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009), cert. denied, 559 U.S. 1051 (2010)....
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