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Thorson v. United States

United States District Court, W.D. Washington, Seattle

April 11, 2018

ROBERT D. THORSON, Petitioner,




         This 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 direct appeal.


         On 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).

         Upon 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.

         Plaintiff 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;[1] (7) judicial bias; and (8) Faretta hearing. Id. Petitioner's § 2255 Motion seeks “reversal or dismissal of all charges.” Id.

         On 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.


         A 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).

         The 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).[2]

         In 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, ...

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