United States District Court, W.D. Washington, Seattle
ROBERT D. THORSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER STAYING PETITIONER'S MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A
PERSON IN FEDERAL CUSTODY
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Petitioner's Motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody. Dkt. #1. Because
Petitioner has appealed his conviction to the Ninth Circuit
Court of Appeals, because that appeal is still pending, and
for the reasons set forth below, the Court now STAYS
Petitioner's § 2255 Motion pending resolution of the
February 13, 2017, Petitioner Robert Thorson was found guilty
of one count of production of visual depictions of minors
engaged in sexually explicit conduct (18 U.S.C. §§
2251(a) and 2551(e)) and one count of possession of visual
depictions of minors engaged in child pornography (18 U.S.C.
§§ 2252(a)(4)(B) and (b)(2)). United States v.
Thorson, Case No. CR16- 277RSM, Dkt. #87 (Feb. 13,
2017). Petitioner received a 324-month sentence on count one
and a 240-month sentence on count two, with the sentences to
run concurrently. Id., Dkt. #132 (May 12, 2017).
being sentenced, Petitioner filed a notice of appeal.
Id., Dkt. #130 (May 12, 2017). Plaintiff's
appeal is still pending before the Ninth Circuit Court of
Appeals. United States v. Thorson, Case No. 17-30100
(9th Cir. 2018). Petitioner's appeal centers on whether
the government committed misconduct by “cross-examining
Thorson without a good faith basis, commenting on
Thorson's right to counsel and to present a defense, and
commenting on his right to remain silent.”
Id., Dkt. #15 at 8. Petitioner's appeal seeks
reversal of count one and remand for a new trial.
Id. at 12.
subsequently filed a motion under 28 U.S.C. § 2255 on
January 26, 2018 (“§ 2255 Motion”). Dkt. #1.
Petitioner's § 2255 Motion seeks relief on the basis
of: (1) sufficiency of the evidence; (2) congressional
overreach; (3) Speedy Trial Act of 1974; (4) ineffective
assistance of counsel; (5) witness perjury; (6)
post-Miranda silence; (7) judicial bias; and (8)
Faretta hearing. Id. Petitioner's
§ 2255 Motion seeks “reversal or dismissal of all
January 31, 2018, the Court ordered the United States to file
and serve an Answer. Dkt. #4. Respondent sought a stay in
answer to the Petitioner's § 2255 Motion, pending
Petitioner's appeal before the Ninth Circuit Court of
Appeals. Dkt. #7. Petitioner has filed a reply opposing the
request for a stay. Dkt. #8.
motion under 28 U.S.C. § 2255 permits a federal
prisoner, in custody, to collaterally challenge his sentence
on the grounds that it was imposed in violation of the
Constitution or laws of the United States, or that the Court
lacked jurisdiction to impose the sentence or that the
sentence exceeded the maximum authorized by law. Petitioner
is required, under 28 U.S.C. § 2255(f), to file a motion
within one year of “the date on which the judgment of
conviction becomes final.” 28 U.S.C. § 2255(f)(1).
rule within the Ninth Circuit is that “‘[a]
district court should not entertain a habeas corpus petition
while there is an appeal pending in this court or in the
Supreme Court.'” United States v.
Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (quoting
United States v. Deeb, 944 F.2d 545, 548 (9th Cir.
1991), cert. denied, 503 U.S. 975 (1992);
Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir.
1987)). There is uncertainty, however, as to:
whether this rule reflects a jurisdictional bar or simply a
prudential concern. Compare Feldman, 815 F.2d at
1323 (dismissing defendant's premature habeas petition
‘because the district court lacked subject matter
jurisdiction to entertain [the] petition”) with
Pirro, 104 F.3d at 299 (noting that this rule was
created “for reasons of judicial economy”) and
Rules Governing § 2255 Proceedings for the United States
District Courts, Rule 5, Adv. Comm. Notes (“We are of
the view that there is no jurisdictional bar to the District
Court's entertaining a Section 2255 motion during the
pendency of a direct appeal but that the orderly
administration of criminal law precludes considering such a
motion absent extraordinary circumstances.”). We need
not resolve this discrepancy, however, because the district
court should refrain from hearing LaFromboise's §
2255 motion until after he exhausts his direct appellate
review rights under either theory.)
United States v. LaFromboise, 427 F.3d 680, 686 n.9
(9th Cir. 2005).
unusual and extraordinary circumstances, however, a defendant
in a federal criminal prosecution may simultaneously have a
direct appeal and a § 2255 proceeding each seeking to
overturn the conviction and sentence. See Jack v. United
States, 435 F.2d 317, 318 (9th Cir. 1970). Direct
appeals and collateral attacks under § 2255 serve
different purposes. United States v. Frady, 456 U.S.
152 (1982) (explaining that direct appeal results in a final
judgment perfected by appeal that may then be subjected to
“a series of endless postconviction collateral
attacks”). Likewise, different issues may be advanced
on direct appeal and on collateral attacks under § 2255.
United States v. Walter-Eze, 869 F.3d 891, 906 n.3
(noting that direct appeal is limited to the record and
additional factual development is proper in collateral attack
under § 2255) (citing Massaro v. United States,