United States v. Simard

• Decision Date: 05 November 2019
• Docket Number: Case No. 2:10-cr-47
• Parties: UNITED STATES OF AMERICA v. SHAWN SIMARD
• Court: U.S. District Court — District of Vermont

UNITED STATES OF AMERICA v. SHAWN SIMARD

Case No. 2:10-cr-47

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

November 5, 2019

OPINION AND ORDER

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 befollowed 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 toexhaust every imaginable option, but rather to make reasonable efforts." United States v. Longshore, 644 F. Supp. 2d 658, 661 (D. Md. 2009) (citing Aron v. United States, 291 F.3d 708, 712 (11th Cir. 2002)).

In this case, there are arguably two delays at issue. The first is the period of time between Simard's federal sentencing and the emergence of Vermont case law clarifying his right to relief in state court. The second is the alleged delay between that clarification and Simard's filing of a state court petition for post-conviction review.

With respect to the first period of alleged delay, Simard submits that his right to relief in state court was not clear at the time of his federal conviction. Indeed, the precise contours of lawful Rule 11 plea proceedings in Vermont were, until recently, unsettled. See In re Bridger, 2017 VT 79, ¶ 28, 205 Vt. 380, 396, 176 A.3d 489, 499 ("Although we have decided many Rule 11 cases, I think we have failed to achieve clear requirements that can be implemented correctly in thousands of cases.") (Dooley, J., concurring). Prior to Simard's 2004 state court plea, State v. Yates, 169 Vt. 20, 27, 726 A.2d 483, 488 (1999) required that a defendant personally admit to the factual basis for the charge. Shortly thereafter, however, the Vermont Supreme Court in State v. Morrissette, 170 Vt. 569, 571, 743 A.2d 1091, 1093 (1999) (mem.) upheld a conviction where the defendanthad signed a waiver-of-rights form and stipulated to the underlying facts through his attorney. Citing the memorandum decision in Morrissette, State v. Cleary, 2003 VT 9, ¶ 29, 175 Vt. 142, 153, 824 A.2d 509, 518 affirmed the defendant's conviction where the underlying facts were agreed to by counsel. The Cleary court found that because the underlying police affidavit was acknowledged by the defendant, and the factual basis agreed to by counsel, "the factual basis was in effect stipulated to and admitted by defendant. Thus, there was substantial compliance with Rule 11." Id. ¶¶ 29, 30. In his Cleary dissent, Justice Dooley opined that the memorandum decision in Morrissette had "sub silentio overruled the one-year-old decision in Yates." Id. ¶ 61.

On March 21, 2014, the Vermont Supreme Court issued In re Stocks, 2014 VT 27, 196 Vt. 160, 94 A.3d 1143, holding that a defendant who pleads guilty must admit on the record to the factual basis for the charge. Stocks was in accord with Yates but did not expressly overrule Cleary. See In re Bridger, 2017 VT 79, ¶ 28 (noting that Stocks did not "explicitly overrul[e]" Cleary). On August 24, 2014, the Vermont Supreme Court held in In re Manosh, 2014 VT 95, 197 Vt. 424, 108 A.2d 212 that a defendant's written waiver of rights could not substitute for an open colloquy in court. Manosh overruled Morrissette to the extent that a trial court must personally address the defendantand explain his rights in open court. 2014 VT 95, ¶ 23.

In 2017, the Vermont Supreme Court's Bridger decision reinforced Yates, overruled Cleary, and clarified its rejection of Morrissette. Bridger first explained that, according to longstanding Vermont precedent, Rule 11(f) requires an admission on the record from the defendant. 2017 VT 79, ¶ 11 ("[W]e have consistently concluded that an 'adequate factual basis' sufficient to demonstrate voluntariness must consist of some recitation on the record of the facts underlying the charge and some admission by the defendant to those facts.") (citing Yates, 726 A.2d at 48). The court also noted that, "unfortunately, State v. Morrissette and State v. Cleary inadvertently sowed confusion by importing the phrase 'substantial compliance' into our Rule 11(f) jurisprudence." Id. ¶ 18. Although Morrissette did not involve a Rule 11(f) challenge, Cleary "relied exclusively on Morrissette to deny the defendant's Rule 11(f) challenge because the trial court 'substantially complie[d]' with Rule 11(f)." Id. ¶ 20. Because Cleary was inconsistent with pre-existing Vermont precedent, and "[t]o the extent Cleary relied on Morrissette and the 'substantial compliance' standard," Cleary was overruled. Id. Bridger also stated that "[a]lthough we did not explicitly refer to the 'substantial compliance' standard when we overruled Morrissette, we now make explicit what Manosh made implicit: 'substantial compliance' has no place inRule 11(f) claims." Id.

Most recently, when considering the question of Bridger's retroactive effect, the Vermont Supreme Court clarified which portions of Bridger announced new rules of law. In re Barber, 2018 VT 78, 195 A.3d 364. Barber identified three main holdings in Bridger: (1) the defendant must personally admit to the facts underlying the charge, (2) oral or written stipulations or waivers cannot substitute for an oral admission by the defendant, and (3) substantial compliance does not apply to Rule 11(f) challenges. Id. ¶ 11. With respect to the first holding, Barber...