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United States v. Legan

United States District Court, D. Montana, Missoula Division

December 7, 2018


          OPINION & ORDER

          Donald W. Molloy, District Judge.

         Introduction 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 Count I.


         On July 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.

         A 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.

         Legan 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.

         Legal Standards

         Finality "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).


         I. Motion to vacate

         Legan's 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.

         Legan 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 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 ...

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