United States v. Webster

• Docket Number: 8:12-CR-426
• Decision Date: 02 August 2023
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ROBERT DION WEBSTER, Defendant.
• Court: U.S. District Court — District of Nebraska

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UNITED STATES OF AMERICA, Plaintiff, v. ROBERT DION WEBSTER, Defendant.

No. 8:12-CR-426

United States District Court, D. Nebraska

August 2, 2023

MEMORANDUM AND ORDER ON MOTION TO VACATE UNDER 28 U.S.C § 2255

BRIAN C. BUESCHER, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Defendant Robert Dion Webster has filed a pro se Motion to Vacate Under 28 U.S.C. § 2255. Filing 103. This matter is before the Court to conduct an initial review of Webster's Motion pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings and 28 U.S.C. § 2255(b). For the reasons stated herein, the Court finds that it “plainly appears” that Webster is not entitled to relief and denies his Motion. The Court will not issue a certificate of appealability.

II. BACKGROUND

In 2007, AC^[1] and her mother lived in Walthill, Nebraska, with Webster. Filing 56 at 1516. That year, AC, who was around seven or eight years old, was watching television when Webster laid next to her and sexually assaulted her. Filing 56 at 18-22. Five years later, AC began telling friends at school about what had occurred. Filing 56 at 24-25. According to AC, she did not report Webster's assault earlier because she feared reprisal from him. Filing 56 at 23-24. One of AC's friends encouraged her to talk to her school's guidance counselor. Filing 56 at 29-30. After hearing AC's story, the guidance counselor called the police. Filing 56 at 30. During the investigation, AC told multiple people that Webster had raped her. See, e.g., Filing 56 at 60-61; Filing 57 at 109-11.

After the investigation into AC's accusations, a grand jury charged Webster with knowingly engaging in a sexual act with a child under 12 years old, in violation of 18 U.S.C. § 2241(c). Filing 1. The Indictment also alleged that Webster had previously been convicted in 2002 of attempted sexual abuse, thereby subjecting him to enhanced penalties under 18 U.S.C. § 2247. Filing 1. The trial began on May 21, 2013, and the jury returned a guilty verdict. Filing 32 (Text Minute Entry); Filing 40.

After the verdict, on August 28, 2013, Webster filed a Motion for New Trial, which asserted that AC had recanted her accusations against Webster during a therapy session earlier that month. Filing 50. The Court^[2] held a hearing on this Motion, during which Webster informed the Court that he wanted to withdraw the Motion. Filing 87. The Court directly questioned Webster if he was voluntarily and knowingly making this decision, and Webster said yes. Filing 87 at 4.

The Court held a sentencing hearing on March 3, 2014. Filing 76 (Text Minute Entry). AC, who was present without counsel or her appointed guardian ad litem, asked to testify at the hearing, which the Court denied and instead permitted her to submit a written statement. Filing 79 at 5; Filing 90. The Court received the statement as a sealed exhibit, but did not disclose it to either party. Filing 77; Filing 79 at 5; Filing 90. The Court sentenced Webster to 30 years imprisonment, which was the mandatory minimum for his offense. Filing 78. After sentencing, Webster filed a Motion to Produce AC's written statement, which the Court denied because Webster had already filed his appeal. Filing 90; Filing 95. The Eighth Circuit Court of Appeals affirmed Webster's conviction and sentence and issued its Mandate on October 26, 2015. Filing 98; Filing 101.

Nearly eight years later, on July 17, 2023, Webster filed a Motion to Vacate under 28 U.S.C. § 2255. Filing 103. In his Motion, Webster claims that his counsel rendered ineffective assistance of counsel by failing to object to the Court's decision not to provide him with AC's written statement at sentencing and to not allow AC to testify at sentencing. Filing 103 at 4. In his accompanying brief, Webster also takes issue with his counsel's cross-examination of AC at trial, his counsel's failure to “argue vigorously” for records from a tribal court regarding an investigation into AC's allegations, and his counsel's decision to appeal issues that “were clearly weaker” than issues related to obtaining AC's written statement. Filing 103 at 13-15. Webster also asserts that he is actually innocent of his offense. Filing 103 at 22-26.

III. ANALYSIS

A. Applicable Standards

Webster brings his Motion pursuant to 28 U.S.C. § 2255, which permits federal prisoners to ask the sentencing court to “vacate, set aside, or correct” a sentence upon a showing that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a). “Section 2255 is an outgrowth of the historic habeas corpus powers of the federal courts as applied to the special case of federal prisoners.” Jones v. Hendrix, 143 S.Ct. 1857, 1865 (2023); see also Odie v. United States, 42 F.4th 940, 944 (8th Cir. 2022) (“Section 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.” (internal quotation marks omitted) (quoting Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011))). Relief under § 2255 is limited, as it “does not encompass all claimed errors in conviction and sentencing.” Meirovitz v. United States, 688 F.3d 369, 370 (8th Cir. 2012) (quoting Sun Bear, 644 F.3d at 704).

The judge receiving a § 2255 motion to vacate must first determine if “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” See Rule 4(b) of the Rules Governing Section 2255 Proceedings. “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief,” the Court must order the United States to respond and consider holding a hearing. 28 U.S.C. § 2255(b); see also Rule 4(b) of the Rules Governing Section 2255 Proceedings. A court cannot accept a petitioner's allegations as true if “they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Walker v. United States, 810 F.3d 568, 580 (8th Cir. 2016).

B. Statute of Limitations

The obvious issue with Webster's Motion, which Webster himself recognizes, is that he filed it many years after the Eighth Circuit issued its Mandate in his direct appeal. The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes “a one-year statute of limitations on motions by prisoners under section 2255 seeking to modify, vacate, or correct their federal sentences.” Odie, 42 F.4th at 944-45 (quoting Muhammad v. United States, 735 F.3d 812, 815 (8th Cir. 2013)); accord. 28 U.S.C. § 2255(f). The statute of limitations begins to run from the latest of (1) when the judgment becomes final, (2) when “the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed,” (3) “the date on which the right asserted was initially recognized by the Supreme Court” if that right has retroactive application, 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).

Webster concedes that the deadline for him to file a habeas petition “long passed.” Filing 103 at 19. His grounds for habeas relief all involve the alleged ineffective assistance of counsel of which he was aware prior to judgment becoming final.^[3] The statute of limitations began running after the time for Webster to file a petition for a writ of certiorari on his direct appeal expired, which was 90 days after the Eighth Circuit issued its Mandate, i.e., January 25, 2016.^[4] SeeKempv. United States, 142 S.Ct. 1856, 1860 (2022) (explaining that when a habeas petitioner does not seek review in the Supreme Court in his or her direct appeal “a judgment becomes final when the time to seek certiorari expires-ordinarily, 90 days after judgment”); Supr. Ct. R. 13. Thus, the statute of limitations period passed on January 25, 2017. See 28 U.S.C. § 2255(f). Therefore, Webster's habeas petition is untimely under § 2255(f).

1. Equitable Tolling

Webster argues that he “jumps the hurdle of procedural bar” because his attorney was allegedly ineffective at trial and on appeal. Filing 103 at 19. According to Webster, because his counsel could not assert his own ineffectiveness on appeal and failed to obtain AC's written statement at sentencing, Webster should be permitted, in the “interest of justice,” to have his habeas petition considered on the merits. Filing 103 at 20. The Court construes this argument as contending that the statute of limitations should be equitably tolled.

In very limited circumstances, a court may equitably toll the one-year statute of limitations under § 2255(f) if the petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way and prevented timely filing.” Muhammad, 735 F.3d at 815 (internal quotation marks omitted) (quoting Holland v. Florida, 560 U.S. 631, 648 (2010)). As defined by the Eighth Circuit, “extraordinary circumstances” are those which are “beyond a prisoner's control [and which] prevent timely filing.” United States v. Martin, 408 F.3d 1089, 1093 (8th Cir. 2005). A petitioner's attorney's serious misconduct can constitute “extraordinary circumstances.” Muhammad, 735 F.3d at 816.

Here Webster's counsel's alleged deficiencies fail to meet this high standard. Simply because Webster's counsel could not raise his own ineffectiveness on appeal does not excuse Webster's failure to do so within the time limitations proscribed by § 2255(f). Furthermore, Webster's...