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United States v. Ballard

June 29, 2010

UNITED STATES OF AMERICA, RESPONDENT,
v.
JOHN MARVIN BALLARD, MOVANT.



FINDINGS AND RECOMMENDATIONS

Movant has filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Respondent has filed a motion to dismiss, arguing that the motion was not filed within the statute of limitations and is barred by movant's plea agreement, which waived collateral attack.

I. Background

On April 21, 2005, movant was indicted on four counts of violating 18 U.S.C. § 1002(a)(3) and one count of violating 18 U.S.C. § 1001(a)(2) based on false statements to his probation officer. He entered a plea of guilty to the latter charge on November 1, 2005 in accordance with a written plea agreement.

Before the date for judgment and sentence, movant filed a sentencing memorandum, objecting to a proposal that while he was on supervised release he be restricted from accessing the Internet and forbidden from using a computer with internet access. See Def.'s Sentencing Mem. (Docket No. 35-2) at 3-4. He also argued his statement to the probation officer was true but not complete. Id. at 7.

Petitioner returned to court for sentencing on February 17, 2006. Pl.'s Motion to Dismiss (MTD; Docket No. 184), Appendix (App.) 4. The judge notified movant that he would be forbidden from having any access to a computer. Id. at 5, 12. The judge then sentenced petitioner to a fifteen month term of imprisonment with a three year term of supervised release. Docket No. 36 (minutes).

Written judgment was entered on March 3, 2006, reflecting the sentence pronounced in open court. MTD, App. 5. The sentence included a number of conditions of supervised release, including a restriction on computer use and a condition directing movant to participate in mental health treatment and in sex offender treatment, with conditions "as approved and directed by the probation officer and as recommended by the assigned treatment provider." Id. at 4-5.

Movant did not appeal from this judgment.

On June 7, 2006, the probation office filed a petition to revoke movant's supervised release, based in part on movant's failure to follow the probation officer's instructions and on false statements to the probation officer. Docket No. 43. On July 13, 2006, movant was indicted in a new case on three charges of giving false statements to his probation officer. United States v. Ballard, Cr. S-06-283.*fn1 These two cases were related and several motions were litigated in both actions. Id., Docket No. 7 (related case order); Cr. S-05-168, Docket No. 96 (order resolving parallel motions filed in both cases).

On May 28, 2008 and June 19, 2008, movant filed motions to vacate his sentence in this case. Docket Nos. 111, 117. The court dismissed these two motions but gave movant leave to file an amended motion. See Docket No. 144. The court dismissed the amended motion, giving movant leave to file a second amended motion to vacate. Docket No. 156. The pending second amended motion to vacate was filed on May 27, 2009. It raises the following grounds: the court accepted movant's guilty plea even though movant is factually innocent; the condition of supervised release that restricts the possession or use of a computer is overbroad; the probation officer imposed a curfew illegally; the probation officer imposed travel restrictions illegally; the probation officer disclosed movant's presentence report and mental health evaluation to a treatment provider without court authorization; and the probation officer required movant to sign a release authorizing his treatment provider to discuss his mental health treatment with the probation officer. Second Am. Pet. (Docket No. 162).

II. The Statute of Limitations

Section 2255 provides in relevant part:

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of(1) the date on which the judgment of conviction becomes 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 right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively ...


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