United States District Court, D. Minnesota
N. ERICKSEN UNITED STATES DISTRICT JUDGE
February 2007, Todd Edward Hammond pleaded guilty to
production of child pornography in violation of 18 U.S.C.
§§ 2251(a) and 2251(e). ECF No. 45. He was
sentenced to a 360-month term of imprisonment. ECF No. 53. On
May 11, 2018, Hammond filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. ECF No.
Because the record conclusively shows that Hammond is not
entitled to relief, the Court denies his § 2255 motion
without an evidentiary hearing. See Thomas v. United
States, 737 F.3d 1202, 1206 (8th Cir. 2013).
motion fails for two reasons. First, it is untimely. There is
a one-year limitation period on motions made under §
2255. As set forth in § 2255(f), that period runs from
the latest of:
(1) the date on which the judgment of conviction becomes
(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
(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
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
Hammond's judgment of conviction became final in 2008,
nearly ten years before he filed his § 2255 motion.
Hammond does not allege that the government has impeded him
from seeking relief, nor does he invoke a newly recognized
right. And, lastly, he does not point to any newly discovered
facts. He does refer to the Second Circuit's decision in
United States v. Jenkins, 854 F.3d 181 (2d Cir.
2017), which held that a child pornography defendant's
sentence was unreasonably long. ECF No. 74 at 12. But as the
Eighth Circuit has made clear, a post-judgment court decision
does not qualify as a newly discovered fact under §
2255(f)(4). E.J.R.E. v. United States, 453
F.3d 1094, 1097-98 (8th Cir. 2006); see also Phillips v.
United States, 734 F.3d 573, 580 (6th Cir. 2013)
(explaining that “§ 2255(f)(4) is directed at the
discovery of new facts, not newly-discovered law.”).
Accordingly, Hammond's § 2255 motion is untimely.
Hammond's motion were not untimely, however, he would
still not be entitled to relief. It is well settled that the
scope of a § 2255 attack on a conviction or sentence is
“severely limited.” Sun Bear v. United
States, 644 F.3d 700, 704 (8th Cir. 2011). The alleged
error of law must be “a fundamental defect which
inherently results in a complete miscarriage of
justice.” Hill v. United States, 368
U.S. 424, 428 (1962). Hammond makes no such showing. The sole
basis for his motion appears to be the Second Circuit's
ruling in Jenkins. But that decision did not reveal
that Hammond's sentence was unreasonable, or that it
violated either the Constitution or the laws of the United
States in any way, as required by § 2255(a). There is no
new constitutional rule articulated in
Jenkins¸ and the decision was issued by an
appellate court in a sister circuit, not by the Supreme
Court. There are also key differences between the two cases,
including the fact that Jenkins was convicted of possession
of child pornography, while Hammond pleaded guilty to
production. See Jenkins, 854 F.3d at 183. Therefore,
the Jenkins decision does not provide Hammond with
any basis for relief under § 2255.
Hammond's motion is denied because it is untimely and
because it fails on the merits. Furthermore, because Hammond
has not shown that reasonable jurists would find the
Court's disposition in this matter to be debatable or
wrong, he will not be granted a certificate of appealability.
See 28 U.S.C. § 2253(c)(1); Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
on the files, records, and proceedings herein, and for the
reasons stated above, IT IS ORDERED THAT:
Defendant's § 2255 motion ...