Opinion
CIVIL ACTION NO. 03-T-169-S
March 26, 2004
Todd A. Brown, Montgomery, AL, UNITED STATES OF AMERICA plaintiff
William Roy Heidemann, Federal Correctional Institute, Forrest City, AR, WILLIAM ROY HEIDEMANN defendant
OPINION
On January 29, 2004, United States Magistrate Judge Susan Russ Walker entered a recommendation that petitioner William Roy Heidemann's 28 U.S.C.A. § 2255 motion be denied. This matter is now before the court on the magistrate judge's recommendation and Heidemann's objections to it; respondent United States of America did not file any objections to the recommendation. For the following reasons, albeit different from those given by the magistrate judge, the court will overrule Heidemann's objections and deny his motion in its entirety.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 29, 2001, Heidemann pled guilty to possession of child pornography, in violation of 18 U.S.C.A. § 2252A(a)(5)(B), and was sentenced to 34 months in prison. The definition of child pornography, as used in § 2252A(a)(5)(B), is found in 18 U.S.C.A. § 2256(8). At the time Heidemann was convicted, the definition of child pornography included:
"any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where —
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;
(C) such visual depiction has been created, adapted, or modified to appear that such an identifiable minor is engaging in sexually explicit conduct; or
(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct. . . ."18 U.S.C.A. § 2256 (2000 ed.) (amended 2003).
After Heidemann was sentenced, the Supreme Court determined parts of the definition of "child pornography" quoted above were unconstitutional. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389 (2002). Specifically, the Court held that the ban on "virtual child pornography" (that is, "sexually explicit images that appear to depict minors but were produced without using any real children," id. at 239, 122 S.Ct. at 1396), implicated by subsections B and D of § 2256(8), was overbroad and unconstitutional under the First Amendment. Id. In an undated letter sent to this court, Heidemann expressed a belief that the Supreme Court's holding in Free Speech affected the validity of his sentence. After issuing the requisite warnings, see Castro v. United States, ___ U.S. ___, 124 S.Ct. 786, 791-92 (2003) (a court may recharacterize a pro se litigant's motion as a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C.A. § 2255 only after the court has warned him or her that it intends to do so and of the consequences of that action), and obtaining Heidemann's consent, this court construed his letter as a motion under § 2255 to vacate, set aside, or correct sentence. Magistrate Judge Walker then recommended that Heidemann's claim be denied as barred by the one-year limitation period applicable to § 2255 motions.
II. DISCUSSION
The question this court faces is whether Heidemann's § 2255 motion is time-barred by the one-year limitation placed on such motions. The date from which the one-year period starts to run is counted "from the latest of" four possible dates, one of which is "the date on which the judgment of conviction becomes final." 28 U.S.C.A. § 2255. Heidemann's conviction became final on December 3, 2001.Heidemann objects to the magistrate judge's recommendation that, because he did not file it within one year of the date his conviction became final, his motion must be dismissed. He asserts that he did, in fact, file his motion within the one-year time limit. He contends that he mailed his motion at the beginning of December 2002 and that he does not know why it was not filed until January 17, 2003. Generally, a prisoner's pro se § 2255 motion is "deemed filed the date it is delivered to prison authorities for mailing." Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). Absent evidence to the contrary, a court may assume that a prisoner's motion was delivered for mailing on the date he or she signed it. Id.
Heidemann's actual objection is that the "instant motion . . . was postmarked prior to the December 9, 2002 deadline." Because Heidemann would have no reason to know the date of the postmark on the envelope containing his motion, the court presumes that Heidemann is claiming that the motion was posted prior to the deadline, which he mistakenly states is December 9, 2002, instead of December 3, 2002. Because he has consistently claimed that his motion was mailed prior to the deadline, the court presumes that this continues to be his claim. For example, in his response, filed May 19, 2003 (Doc. no. 14), Heidemann asserts that, "in early December, the petitioner wrote the court himself to ask that the conviction be set aside, overturned or reversed."
Complicating this case is the fact that Heidemann did not date his motion, and the envelope in which the motion appears to have been mailed is postmarked January 15, 2003. Therefore, the date Heidemann delivered his motion to prison authorities is unknown to the court at this time. However, the case establishing the "mailbox rule" for pro se prisoners is clear that the rule is intended to be a "bright-line rule, not an uncertain one." Houston v. Lack, 487 U.S. 266, 275, 108 S.Ct. 2379, 2385 (1988). The rule is a bright-line rule because, "officials have procedures for recording the date and time that they receive inmates' papers for mailing and, therefore, are in a position to verify whether a prisoner delivered a document for mailing on a particular date," Garvey v. Vaughn 993 F.2d 776, 780-81 (11th Cir. 1993). Therefore, where there is ambiguity regarding the date the motion is delivered to prison authorities, the burden is upon the prison officials, id., or upon the government, United States v. O'Kaine, 971 F. Supp. 1479, 1481 (S.D. Ga. 1997), to demonstrate the date the motion was delivered to prison authorities.
Although the government has failed to demonstrate that Heidemann delivered his motion to prison authorities after the December 3, 2002, deadline, it is unnecessary for the court to require the government to meet this burden. Even assuming his claim is timely, the substance of Heidemann's claim has no merit.
Heidemann's § 2255 motion can best be characterized as a claim that the type of child pornography he possessed was the same type that the Supreme Court held was unconstitutional in Free Speech. His motion states that the pornography he possessed consisted of "computer images," and not "actual photos, no contact with minors." However, his contention that he did not possess child pornography because the images were in electronic format misstates Free Speech's holding. Heidemann contends that, because "all evidence was contained on either the computer hard drive or diskette," he did not possess pornography within the clarified definition from Free Speech. However, Heidemann does not claim that he possessed only "virtual child pornography," which is the type of child pornography the Supreme Court held could not be made criminal; in other words, his claim is not that he had virtual child pornography that, through computer imaging, depicts "realistic images of children who do not exist." Free Speech, 535 U.S. at 239, 122 S.Ct. at 1396.
Petitioner's letter-pleading, filed Jan. 17, 2003 (Doc. no. 2).
Petitioner's response, filed May 19, 2003 (Doc. no. 14).
The evidence supporting Heidemann's conviction clearly involved images of real children, and not just the "virtual pornography" addressed by the Supreme Court in Free Speech. He was convicted for possessing over 100 images of child pornography. While some of these images may have been "virtual pornography," other images were of actual children. Therefore, there is no merit to Heidemann's claim that the right newly recognized in Free Speech applies to the acts for which he was convicted. Even assuming that Heidemann's motion was filed timely, his motion must be denied. The court will overrule Heidemann's objections, and deny his § 2255 motion.
An appropriate judgment will be entered.
JUDGMENT
In accordance with the memorandum opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the court as follows:(1) The objections, filed by petitioner William Roy Heidemann on February 10, 2004 (Doc. No. 18), are overruled.
(2) The recommendation of United States Magistrate Judge Susan Russ Walker, entered on January 29, 2004 (Doc. No. 16), is adopted, albeit for different reasons.
(3) The motion to vacate, set aside, or correct sentence, filed by petitioner Heidemann on January 17, 2003 (Doc. No. 2), is denied.
The clerk of the court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.