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United States v. Harvey

United States District Court, D. Nebraska

November 3, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
DONALD HARVEY, Defendant.

          MEMORANDUM AND ORDER

          LYLE E. STROM, SENIOR JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on a number of motions filed by the defendant, Donald A. Harvey (hereinafter “defendant” or “Harvey”). Defendant has filed the following: (1) an Affidavit in Support of Motion for New Trial, New Counsel, Protective Petition” (Filing No. 89); (2) a “Motion for Stay-Protective Petition of Motion to Vacate, Set Aside, or Correct a Sentence” (Filing No. 90); (3) a “Motion for Notice of Docket Activity” (Filing No. 91); (4) a “Motion for New Counsel” and a “Motion for Plain Error-PSR/PSI (FRCRP 44, Local Rules 32)” (Filing No. 95); (5) a “Motion to Take Judicial Notice Motion of Plain Error” (Filing No. 97); (6) a “Motion for Continuance -Objection to P.S.R.” (Filing No. 98); and (7) a motion and amended motion “For Leave to Issue Subpeonas [sic] Duces Tecum.” See Filing Nos. 113, 117, and 118. After review of the filings and the applicable law the Court finds as follows.

         BACKGROUND

         On September 17, 2014, Harvey was indicted on a two-count indictment charging receipt and possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and 2252(a)(4)(B) (Filing No. 1). On April 10, 2015, defendant moved to enter a plea of Nolo Contendere (Filing No. 40). The same day, the Court accepted defendant's plea of nolo contendere to Counts I and II of the aforementioned indictment despite an objection by the government.

         Six days later on April 16, 2015, defendant moved to withdraw his plea of nolo contendere (Filing No. 48). On April 22, 2015, the Court held a hearing and denied defendant's motion to withdraw his nolo contendere plea. See Filing Nos. 45, 46, and 49.

         On July 16, 2015, the Court overruled defendant's objections to the presentence report, granted defendant's motion for downward departure, and sentenced defendant to a term of 74 months on Counts I and II to run concurrently (Filing No. 57). The Court also sentenced defendant to a five-year term of supervised release on Counts I and II to also run concurrently with special conditions (Filing No. 59). In addition, the Court imposed a special assessment in the amount of $200 (Id.)

         On July 27, 2015, defendant appealed the Court's judgment. See Filing No. 66. On July 13, 2016, the United States Court of Appeals for the Eighth Circuit affirmed in part and reversed in part and remanded the case with instructions to vacate one of Harvey's convictions and to resentence him (Filing No. 92).[1] The Eighth Circuit also concluded that this Court “did not abuse its discretion when it denied Harvey's motion to withdraw his plea.” (Id. at 2). However, the Circuit reasoned that “Harvey's two convictions violate the Double Jeopardy Clause because they arise out of the same act or transaction.” (Id.) Defendant filed the present motions both while his case was on appeal to the Eighth Circuit and after the case was remanded.

         DISCUSSION

         I. Affidavit in Support of Motion for New Trial, New Counsel, Protective Petition

         Defendant entitles Filing No. 89 as an “Affidavit in support of Motion for New Trial, New Counsel, Protective Petition.” The contents of the affidavit seem to address defendant's appeal to the Eighth Circuit. See Filing No. 89 (“I do submit this Affidavit . . . to support the Direct Appeal 15-2677.”). The Court of Appeals addressed Harvey's claim of innocence and held that the Court “did not abuse its discretion when it denied Harvey's motion to withdraw his plea . . . .” (Filing No. 92 at 7). Therefore, defendant's Affidavit in support of Motion for New Trial, New Counsel and Protective Petition will be denied for want of jurisdiction. Furthermore, to the extent the Court has jurisdiction, the Court will deny the motion as without merit and/or as moot in light of the Eighth Circuit's opinion.

         II. Motion to Stay Habeas Petition

         Defendant entitles Filing No. 90 as a “Motion for Stay-Protective Petition of Motion to Vacate, Set Aside, or Correct a Sentence.” Liberally construed, defendant seeks to toll the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”). Defendant “moves for an [o]rder to [s]tay the proceedings for the [s]ection 2255 [m]otion until the U.S. Court of Appeals for the Eighth Circuit renders a decision on the [d]efendants [sic] [d]irect [a]ppeal . . . .” (Filing No. 90 at 1). The Court will deny defendant's motion as untimely. See Masters v. Eide, 353 F.2d 517, 518 (8th Cir. 1965) (stating “[o]rdinarily resort cannot be had to U.S.C.A. § 2255 or habeas corpus while an appeal from conviction is pending.”) (internal cites omitted)). Due to Harvey's direct appeal, the Eighth Circuit's remand for resentencing, and the fact that the Court has yet to resentence Harvey, there is no final judgment from which to start the running of the one-year statute of limitation under AEDPA. Accordingly, Harvey's motion under 28 U.S.C. § 2255 is untimely and will be denied.

         III. Copy of Docket Activity

         Defendant asks in Filing No. 91 “for a copy of the Notice of Docket Activity from any filings starting July of the year 2014 continuing until the date of th[e] motion.” The Court finds that this motion should be granted. Accordingly, the Court will direct the clerk of the district court to ...


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