Berger v. United States ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jason Christian Berger, No. CV-21-08222-PCT-DLR 10 Petitioner, ORDER 11 v. 12 United States of America, 13 Respondent. 14 15 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 16 Michael T. Morrissey (Doc. 25) regarding Movant’s pro se Motion to Vacate, Set Aside or 17 Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 13). The R&R recommends that the 18 Motion to Vacate, Set Aside or Correct Sentence be denied and dismissed with prejudice 19 and that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be 20 denied. 21 Movant filed an objection to the R&R, (Doc. 28), and Respondent filed a response, 22 (Doc. 31). Movant thereafter filed an Objection to the United States’ Objection and 23 Objection to All Past and Future Objections. (Doc. 32.) The Court has considered the 24 objections and reviewed the R&R de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 25 636(b)(1). 26 I. Background 27 Movant was indicted on March 28, 2013, charged with possession of a machinegun, 28 possession of an unregistered firearm, and possession of firearms while having a prior 1 felony. On January 28, 2014, Movant pled guilty to one count of illegal possession of a 2 machinegun. Movant admitted in the factual basis of his plea that between July 15, 2012, 3 and August 22, 2012, he knowingly possessed a Browning 1919 machinegun and knew it 4 was illegal to possess that weapon. On June 24, 2014, Movant was sentenced to a 65- 5 month term of imprisonment, followed by three years of supervised release. Movant did 6 not appeal. 7 More than seven years after he was convicted and sentenced, on October 12, 2021, 8 Movant filed his motion to vacate, set aside or correct a sentence pursuant to 28 U.S.C. § 9 2255. (Doc. 1.) The Court denied his motion but with leave to amend. On January 6, 10 2022, Movant filed a second amended motion (Doc. 13), raising fifteen grounds for relief. 11 II. Discussion 12 Movant’s first objection (Doc. 28) re-urges his complaints against his counsel but 13 does not raise any factual or legal errors in the R&R. Movant’s objection does not challenge 14 the R&R’s finding that the District Court entered judgment on June 25, 2014. Nor does it 15 challenge the finding that his conviction became final on July 9, 2014, and that to have 16 been timely, Movant’s § 2255 petition would have had to have been filed by July 9, 2015. 17 Nor does it challenge the finding that Movant mailed his § 2255 motion on October 7, 18 2021, more than seven years after the conviction became final. 19 Movant’s second objection in his “Objection to the United States’ Objection and 20 Objection to All Past and Future Objections” (Doc. 32) makes the same and similar 21 arguments as his first objection. He again argues that his attorney did not adequately 22 represent, claiming that additional failing included the failure to interview witnesses, the 23 failure to request a drug test of Movant’s hair follicle, and the failure to present letters from 24 people who knew that he does not use cocaine. 25 The record supports the R&R’s findings that Movant has not proven that 26 extraordinary circumstances prevented him from filing a timely § 2255 motion. Movant 27 merely alleged that his trial counsel was ineffective in failing to investigate or interview 28 witnesses in this case before Movant pled guilty. (Doc. 13 at 20.) In his two objections he 1 made similar assertions about his attorney, but he also made accusations, unsupported by 2 facts, of “police terrorism,” and a “Navajo County Mafia, engaging in serious criminal 3 conduct on the level of actual terrorism,” “the trauma of having the police and then the 4 federal government commit crimes” as grounds for tolling. (Doc. 28 at 1-4.) Movant 5 argues in his “Response to Report and Recommendation” (Doc. 28), that equitable tolling 6 should be “granted in the interests of justice.” (Doc. 28 at 1.) Bald accusations are not 7 evidence, they do not establish extraordinary circumstances and they do not establish that 8 the R&R erred. 9 In addition to failing to show extraordinary circumstances, Movant has not shown 10 that the R&R erred in its conclusion that he did not diligently pursue his rights. Although 11 Movant apparently filed a bar complaint against his trial counsel, he did not attempt to raise 12 an ineffective assistance of counsel claim or otherwise challenge his conviction until he 13 filed the present § 2255 motion, filed over seven years after his conviction. Movant waited 14 until January 2018, over three years after his conviction and over two-and-a-half years 15 after a timely § 2255 motion was required to be filed, to request his criminal case file or 16 his trial counsel’s contact information. (Doc. 13-1 at 7-8.) See Pace v. DiGuglielmo, 544 17 U.S. 408, 419 (2005) (holding petitioner did not diligently pursue his rights where he 18 waited years before deciding to seek relief in federal court); Waldron-Ramsey v. Pacholke, 19 556 F.3d 1008, 1014 (9th Cir. 2009) (“If diligent, [petitioner] could have prepared a basic 20 form habeas petition and filed it to satisfy the AEDPA deadline, or at least could have filed 21 it less than 340 days late assuming that some lateness could have been excused.”). 22 Petitioner has not shown facts that provide a basis for equitable tolling. 23 The Court finds that the R&R did not err in its conclusion that Movant’s § 2255 24 motion is untimely, and Movant is not entitled to equitable tolling. The R&R correctly 25 found that the record is sufficiently developed, and an evidentiary hearing is unnecessary 26 for resolving this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). 27 IT IS ORDERED that Movant’s Objections to the R&R (Docs. 28 and 32), are 28 OVERRULED. 1 IT IS ORDERED that the R&R (Doc. 25) is ACCEPTED. 2 IT IS ORDERED that Movant’s Motion to Vacate, Set Aside or Correct Sentence 3|| pursuant to 28 U.S.C. § 2255 (Doc. 13) is DENIED AND DISMISSED WITH PREJUDICE. 5 IT IS ORDERED that because reasonable jurists could find the ruling debatable or || jurists could conclude the issues presented are adequate to deserve encouragement to 7\| proceed further, a Certificate of Appealability is DENIED. 8 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment 9|| accordingly and terminate this action. 10 Dated this 29th day of December, 2022. 11 12 13 , {Z, 14 _—_- a 15 Usted States Dictric Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-