Allmond v. United States

1

JEFFREY ALLMOND, JR., Movant, v. UNITED STATES OF AMERICA, Respondent.

Nos. CV423-149, CR418-268

United States District Court, S.D. Georgia, Savannah Division

May 13, 2024

REPORT AND RECOMMENDATION

CHRISTOPHER L. RAY UNITED STATESMAGISTRATE JUDGE

Jeffrey Allmond, Jr. moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his federal sentence. Doc 132.^[1] The Court directed him to resubmit his Motion using the required form, doc. 133, and he complied, doc. 134. The Government moves to dismiss Allmond's Motion, as amended. Doc. 135. Allmond has responded in opposition to that Motion. Doc. 136. It is, therefore, ripe for disposition. For the reasons explained below, the Government's Motion should be GRANTED, doc. 135, and Allmond's Motion, as amended, DISMISSED, docs. 132 & 134.

A jury found Allmond guilty of a single count of coercion and enticement of a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). Doc. 117 at 1 (Judgment). He was sentenced to 121 months of imprisonment and a ten-year term of supervised release. Id. at 2-3. Allmond appealed his conviction and the Court of Appeals affirmed. See doc. 127; see also United States v. Allmond, 817 Fed.Appx. 887 (11th Cir. 2020). Allmond filed his original § 2255 Motion on May 18, 2023. Doc 132 at 6.

Allmond's Motion asserts three grounds for relief. Ground One asserts that under the United States Supreme Court's opinion in Ruan v. United States, 597 U.S. 450 (2022), the Court of Appeals' opinion affirming his conviction was erroneous, to the extent that it held the Government was not required to prove he knew his victims were underage. Doc. 134 at 4. Ground Two asserts that the District Judge's jury instructions “misled the jury by authorizing a finding of guilt without proof of [his] knowledge [that his victims were underage].” Id. at 5. Ground Three asserts that the allegedly erroneous jury instruction was not harmless. Id. at 6.

The Government's Motion to Dismiss does not address Allmond's grounds individually. It asserts three arguments against his Motion. First, the Government argues that, to the extent that all three grounds depend upon Ruan, the Supreme Court's statutory interpretation in that case does not apply to §2422(b). Doc. 135 at 3-5. Second, the Government argues that Allmond's grounds are all procedurally defaulted. See id. at 5-8. Finally, the Government argues that his Motion is untimely. Id. at 8. The Government's arguments that Allmond's Motion is untimely and that Ruan does not alter the burden of proof applicable to § 2422(b) are correct. The Court, therefore, does not reach its procedural default argument.

A motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255 must be filed within one-year of either:

(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 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.

28 U.S.C. § 2255(f). Since Allmond filed a direct appeal, but did not appeal the Court of Appeals' judgment to the United States Supreme Court, see, e.g., doc. 134 at 2, the one-year period commenced when the time for filing a petition for certiorari expired. See, e.g., Mims v. United States, 758 Fed.Appx. 890, 892 (11th Cir. 2019) (“A judgment is considered ‘final' for § 2255(f)(1) purposes once the . . . period to petition for certiorari expires, even if the inmate does not seek certiorari.” (citing Kaufmann v. United States, 282 F.3d 1336, 1338 (11th Cir. 2002)); see also U.S. Sup. Ct. R. 13.1. As the Government points out, although the usual period to petition for certiorari is ninety days, it was extended to 150 days to accommodate the COVID-19 pandemic. See doc. 135 at 8; see also Miscellaneous Order Rescinding COVID-19 Related Orders, 338 F.R.D. 801 (July 19, 2021); Miscellaneous Order Addressing the Extension of Filing Deadlines [COVID-19], 334 F.R.D. 801 (March 19, 2020). Since the Court of Appeals affirmed Allmond's conviction on June 26, 2020, see Allmond, 817 Fed.Appx. at 887, his conviction became final on November 23, 2020. The one-year period under § 2255(f)(1) expired, therefore, on November 23, 2021. His Motion, filed on May 18, 2023,^[2] was more than one year out-of-time.

Allmond responds to the Government's argument by asserting that his Motion was timely because it was filed within one year of the Supreme Court's opinion in Ruan. Doc. 136 at 2. The one-year period may commence from “the date on which the right asserted [in the § 2255 motion] 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.” 28 U.S.C. § 2255(f)(3). Allmond is correct that he filed his Motion within one year of Ruan. Compare 597 U.S. at 450 (decided June 27, 2022), with doc. 132 (filed May 18, 2023). However, every court to have confronted the argument has determined that Ruan was not a § 2255(f)(3) trigger. See United States v. Ashrafkhan, 2024 WL 37936, at *5 (E.D. Mich. Jan. 3, 2024); Sanchez v. United States, 2023 WL 8418024, at *8 (M.D. Ala. Oct. 12, 2023) (“[T]he Supreme Court did not state that its Ruan holding would apply retroactively to cases on collateral review, and, to date, the Eleventh Circuit has not held that Ruan applies retroactively. Thus, the limitation period for bringing a § 2255 claim under Ruan cannot be controlled by § 2255(f)(3).”); Sensi v. United States, 2023 WL 4684829, at *3 (D. Conn. July 21, 2023) (characterizing Ruan's holding as “a reaffirmation of an established principle (and not any newly-recognized right).”). Ruan, therefore, provides no basis to extend Allmond's otherwise-expired deadline under § 2255(f)(1). Allmond's Motion is, therefore, out-of-time.^[3]

Even if Allmond's Motion were not untimely, the Government is also correct that his assertions are meritless. The crux of all three grounds Allmond asserts is that, after Ruan, conviction under § 2422(b) requires proof that the defendant knew his victims were underage. See doc. 134 at 14-17. Ruan discussed general principles of interpretation applicable to determining scienter in criminal statutes, see 597 U.S. at 458, and applied them to statutes where “the statutory clause in question plays a critical role in separating a defendant's wrongful from innocent conduct,” id. at 461. The statute at issue in Ruan, 21 U.S.C. § 841, “makes it a federal crime, ‘except as authorized, for any person knowingly or intentionally to manufacture, distribute, or dispense a controlled substance,' such as opioids.” Ruan, 597 U.S. at 454 (quoting 18 U.S.C. § 841(a)) (alterations omitted). The Court interpreted the statute to require that “the Government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner.” Id. at 468.

The Government points out that the structure of §2422(b) is markedly different that the statutes the Supreme Court analyzed in Ruan. See doc. 135 at 3-5. The Government also points out that binding Eleventh Circuit precedent establishes that conviction under § 2422(b) does not require proof that the defendant knew the victim's age. See doc. 135 at 4-5; see also United States v. Daniels, 685 F.3d 1237, 1250 (11th Cir. 2012) (“Proof that the defendant knew the victim was under the age of eighteen is not required,” for conviction under § 2422(b).”). Courts in this Circuit have continued to apply Daniels' holding. See, e.g., United States v. Howell, 2023 WL 6142356, at *3-*4 (M.D. Ga. Sept. 20, 2023). Allmond does not point to any authority that suggests that Ruan undermines Daniels' holding. The fact that no court has suggested that Ruan altered the long-settled construction of § 2422(b) strongly suggests that Allmond's interpretation is mistaken.

While the lack of authority supporting Allmond's argument is indicative, the Government also cited the United States Court of Appeals for the Eighth Circuit's opinion in United States v. Moreira-Bravo, which persuasively contradicts Allmond's interpretation. Doc. 135 at 5. Moreira-Bravo declined to apply Ruan to 18 U.S.C. § 2423(a), which is virtually identical to § 2422(b). See United States v. Moreira-Bravo, 56 F.4th 568, 575-76 (8th Cir. 2022). Compare 18 U.S.C. § 2423(a) (“A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce . . . with intent that the individual engage in prostitution, or in any sexual activity for which a person can be charged with a criminal offense . . .”), with 18 U.S.C. § 2422(b) (“Whoever . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense . . .”). Cf. Daniels, 685 F.3d at 1248-49 (relying on analogy between § 2423(a) and § 2422(b)).

The Eighth Circuit's analysis is Moreira-Bravo although not binding, is persuasive and utterly refutes Allmond's argument that Ruan implicates his conviction. He specifically argues that Ruan applies because “[t]he point of the Supreme Court's analogous precedents [including X-Citement Video and Rehaif,] was to make clear that ‘knowingly'...