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United States v. Lesch

November 19, 2009

UNITED STATES OF AMERICA,
v.
ANTHONY LESCH, DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Anthony Lesch (hereinafter "Petitioner") brings this petition, pro se, pursuant to 28 USC § 2255 seeking to vacate, set aside, or correct his sentence. Petitioner also asks the Court to declare the one year statute of limitations set forth in 28 U.S.C. § 2255(f) unconstitutional so that his motion can be heard. The United States filed a response to Petitioner's motion on April 2, 2009, contending that the motion was not timely filed, and even if it was timely filed, is without merit.

II. FACTUAL BACKGROUND

Petitioner was indicted on 112 counts related to child exploitation on October 16, 2002. Dkt. #1. On January 29, 2003 he pleaded guilty, pursuant to a written plea agreement, to counts 20 and 22 charging Production of Child Pornography in violation of 18 U.S.C. § 2251. Dkt. # 12.

On August 14, 2003Petitioner was sentenced to 188 months imprisonment and five years supervised release on each count of conviction, to be served concurrently. Dkt. # 31. The Judgment of Conviction was filed on August 15, 2003. Dkt. # 30. Petitioner did not file an appeal. The Judgment of Conviction became final on August 25, 2003 when Petitioner's time to file an appeal expired.

On March 2, 2009, Petitioner filed the instant Section 2255 Motion to Vacate, Set Aside, or Correct his sentence alleging that (1) the Indictment was silent with regard to a vital part of the statutory elements of the crime charged (nexus with interstate commerce) and, therefore, the Court was without jurisdiction to charge, convict, or sentence him; (2) there was no evidence to prove the "interstate or foreign commerce" element of 18 U.S.C. § 2251; (3) his sentence exceeds the statutory maximum allowed under 18 U.S.C. § 2251; and (4) because the element that was allegedly silent in the Indictment was not discussed with him during the plea hearing, Fed. R. Evid. 201 was not satisfied.

In recognition that the motion was brought more than one year after his conviction became final, Petitioner argues that the Court should declare that 28 U.S.C. § 2255 violates Art. I, §9, cl.2, of the Constitution (hereinafter "the Suspension Clause"). In this regard, Petitioner asserts in his Motion:

[The one year] limitation acts as a suspension of the Writ in contravention of the constitutional prohibition. A prisoner is usually poorly educated and is ill equipped to study the law that applies to his or her situaiton [sic]. [T]o effectively suspend the writs use from a person who is not experienced in legal practices, simply because it takes a part of ayear [sic] to exit the jails and state jails lack any federal books, and after arriving at prison must find someone who is experienced in law, or they must learn law themselves, is a miscarriage of justice because it does not allow the average citizen any time to prepare the facts that they need to dmeonstrate [sic] their challenge to the conviction. A prisoner cannot be limited to a year to apply hs [sic] moton [sic] due to his limited knowledge in law. His right to access the habeas corpus action without it being suspended is expected on the basis of the constitutoional [sic] guarantee.

[C]ongress is unjust if they maintain this suspension of the right that the founders of the constitution wanted guaranteed.

Mot. at 2.

III. DISCUSSION

a. Constitutionality of the Statute of Limitations under subsection (f)

Petitioner asks this Court to declare 28 U.S.C. ยง 2255(f) unconstitutional because it acts as a suspension of the privilege of the writ of habeas corpus in violation of the Suspension Clause. The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." U.S. Const. art. I, Section 9, cl. 2. The one year limitations period of the AEDPA does not violate the Suspension Clause unless it "renders the habeas remedy 'inadequate or ineffective' to ...


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