United States District Court, D. Montana, Missoula Division
OPINION & ORDER
W. Molloy, District Judge.
Pending are Defendant Patrick Duane Legan's Motion to
Vacate Multiplicitous Count (Doc. 53) and a petition to
revoke Legan's supervised release (Doc. 49). Legan's
Motion to Vacate is denied. For the reasons stated below, his
supervised release is revoked only on Count I. Count II is
dormant and forms no basis in fact or law for the sentence
imposed for violating the conditions of supervised release on
10, 2007, Legan pled guilty to one count of receiving child
pornography in violation of 18 U.S.C. § 2252A(a)(2)
(Count I) and one count of possessing child pornography in
violation of 18 U.S.C. § 2252A(a)(5)(B) (Count II).
(Doc. 28.) On February 8, 2008, Legan was sentenced to 132
months' imprisonment on Count I and 120 months'
imprisonment on Count II, to be served concurrently, and
fined a $100 special assessment for each count. (Doc. 41.)
Legan was also sentenced to a lifetime term of supervised
release on each count, to be served concurrently.
(Id.) He did not appeal the sentence.
little over one month later, on March 20, 2008, the Ninth
Circuit decided United States v. Davenport, 519 F.3d
940 (9th Cir. 2008). Davenport held that possession
of child pornography is a lesser included offense of receipt
of child pornography. Id. at 945. Accordingly,
judgment of conviction for both offenses violates the Fifth
Amendment's prohibition on double jeopardy. Id.
947-48. Legan did not move for relief or file a habeas
petition after Davenport.
began his terms of supervised release on October 13, 2016. On
November 5, 2018, a revocation petition alleged that he had
violated three conditions of his release. (Doc. 49.) At a
revocation hearing on November 15, 2018, Legan admitted the
first two violations and the Court dismissed the third upon
the government's motion. The Court revoked Legan's
supervised release on Count I. The day before the hearing,
Legan filed a motion to vacate his conviction for either
Count I or Count II as multiplicitous under
Davenport and the Double Jeopardy Clause. (Doc. 53.)
The parties discussed the motion at the hearing, but the
Court delayed disposition of the motion, sentencing on the
revocation as to Count I, and the revocation as to Count II
to allow further briefing. A final disposition hearing was
held on December 7, 2018.
"is essential to the operation of our criminal justice
system." Teague v. Lane, 489 U.S. 289, 309
(1989). Accordingly, criminal defendants are limited in how
and when they can challenge their convictions. The general
rule is that a motion to vacate, set aside, or correct a
sentence under 28 U.S.C. § 2255 is the exclusive means
of collaterally attacking a federal conviction. Ivy v.
Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). Federal
prisoners cannot petition for habeas corpus under 28 U.S.C.
§ 2241 unless they first demonstrate that § 2255 is
"inadequate or ineffective." 28 U.S.C. §
2255(e); see also Ivy, 328 F.3d at 1059. Similarly,
other common law writs are only available "to the extent
that they fill 'gaps' in the current systems of
postconviction relief." United States v.
Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001). The
default, then, is to construe any motion for relief from a
final conviction as a motion under § 2255. See
United States v. Castro-Verdugo, 750 F.3d 1065, 1071
(9th Cir. 2014).
Motion to vacate
simultaneous conviction and sentencing for possession and
receipt of child pornography violates the Double Jeopardy
Clause. The law of the Ninth Circuit was not established when
Legan was first sentenced. Now, Legan argues that
Davenport makes his convictions unlawful in
retrospect. Determining whether a rule applies retroactively
only matters for new rules. See Chaidez v.
United States, 568 U.S. 342, 347-48 (2013).
Davenport was arguably a straightforward application
of the Blockburger test. See 519 F.3d at
943-46. Under Blockburger, Legan's convictions
and sentences were likely unlawful at the time they came
down. Davenport Just made that explicit. The issue,
then, is not whether Legan's convictions are
multiplicitous under Blockburger and
Davenport-they are. Rather, it is whether anything
can be done about it 10 years after the convictions have
become final when there was no appeal and no petition under
28 U.S.C. § 2255.
has not identified the legal basis for his motion to vacate.
Consequently, it is treated as a motion under 28 U.S.C.
§ 2255 and denied as time-barred. Motions under §
2255 must be filed within one-year 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 ...