USA v. ROSS

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KEVIN LEE ROSS, 	)
)
Petitioner, 	)
)
v. 	) 	1:13-cr-00158-LEW-1
) 	1:25-cv-00201-LEW
UNITED STATES OF AMERICA, 	)
)
Respondent 	)
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION
Petitioner moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his
sentence. (Motion, ECF No. 164.) The Government asks the Court to dismiss the matter
because Petitioner filed the motion after the limitations period expired. 	(Response, ECF
No. 171.)
Following a review of Petitioner’s section 2255 motion, the Government’s response,
and the record, I recommend the Court dismiss the motion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In September 2013, a grand jury indicted Petitioner for possession of child
pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A). 	(Indictment,
ECF No. 1.) After a trial in October 2014, the jury found Petitioner guilty. (Jury Verdict,
ECF No. 78.) In April 2015, the Court sentenced Petitioner to ninety months in prison to
be followed by sixty months of supervised release. 	(Judgment, ECF No. 95.) 	The First
Circuit affirmed in September 2016. United States v. Ross, 837 F.3d 85, 87 (1st Cir. 2016).
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In April 2023, while serving his term of supervised release, Petitioner was again
found in possession of child pornography. 	The Probation Office moved to revoke his
supervised release. 	(Motion for Warrant, ECF No. 131.) 	Petitioner did not contest the
allegations, and the Court revoked his supervised release in October 2024. 	(Revocation
Hearing, ECF No. 161.) 	The Court imposed a term of twenty-four months in prison.
(Revocation Judgment, ECF No. 162.) 	Petitioner did not appeal from the revocation
judgment.
Petitioner subsequently filed the § 2255 motion.1
D ISCUSSION
Title 28 U.S.C. § 2255(f) provides:
A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of –
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
1 The Government also brought a new criminal case against Petitioner for possession of child pornography.
(Indictment, 1:23-cr-00073-LEW-1, ECF No. 1.) After a trial in June 2024, the jury found Petitioner guilty.
(Jury Verdict, 1:23-cr-00073-LEW-1, ECF No. 93.) At the same time the Court imposed the additional
prison time for the violation of supervised release, the Court sentenced Petitioner in the new case.
(Sentencing Hearing, 1:23-cr-00073-LEW-1, ECF No. 108.) The Court imposed a 121-month prison term,
to be served consecutively with the penalty for the violation of the conditions of supervised release in the
first criminal case. (Judgment, 1:23-cr-00073-LEW-1, ECF No. 111; Amended Judgment, 1:23-cr-00073-
LEW-1, ECF No. 119.) Petitioner also filed two § 2255 motions in the second case, but the Court previously
dismissed the petitions without prejudice because Petitioner’s appeal in the second criminal case remains
pending. (Notice of Appeal, 1:23-cr-00073-LEW-1, ECF No. 110; Motions, 1:23-cr-00073-LEW-1, ECF
Nos. 121, 142, Orders, 1:23-cr-00073-LEW-1, ECF Nos. 139, 146.)
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States is removed, if the movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
When there are multiple claims at issue, “the period of limitation in 28 U.S.C. § 2255(f)
should be applied on a claim-by-claim basis.” Capozzi v. United States, 768 F.3d 32, 33
(1st Cir. 2014).
Petitioner does not allege, nor does the record reflect, that the Government imposed
an impediment to a timely filing; Petitioner’s claims do not rely on a right newly-
recognized by the Supreme Court and made retroactively applicable to cases on collateral
review; and Petitioner does not allege newly-discovered facts in support of his section 2255
claims. 	Because paragraphs (2), (3), and (4) of § 2255(f) do not apply, the limitations
period began to run when Petitioner’s judgment of conviction became final.2
The First Circuit affirmed the district court’s judgment on September 14, 2016.
Petitioner then had ninety days to seek a writ of certiorari from the United States Supreme
Court. Sup. Ct. R. 13. Petitioner did not file a request for a writ from the Supreme Court.
Petitioner’s judgment became final following the expiration of the ninety-day period on
December 13, 2016. See Clay v. United States, 537 U.S. 522, 532 (2003) (“We hold that,
for federal criminal defendants who do not file a petition for certiorari with this Court on
2 Petitioner’s claims all challenge the original proceedings and judgment in this case, not the revocation
proceedings or the revocation judgment.
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direct review, § 2255’s one-year limitation period starts to run when the time for seeking
such review expires”). 	The limitation period for filing a § 2255 motion to challenge the
judgment expired one year later, on December 13, 2017. See Rogers v. United States, 180
F.3d 349, 355 n.13 (1st Cir. 1999) (“When a statute of limitations is measured in years, the
last day for instituting the action is the anniversary date of the start of the limitations
period”) (quotation omitted). The Court received Petitioner’s § 2255 motion on April 28,
2025, more than seven years after the limitations period expired.
“[T]he AEDPA statute of limitations defense is not jurisdictional” and “is subject
to equitable tolling in appropriate cases.” 	Holland v. Florida, 560 U.S. 631, 645 (2010)
(internal quotations omitted). “To obtain tolling . . . a petitioner bears a substantial burden
to establish . . . that he exercised reasonable diligence in trying to preserve his rights but
was prevented from timely filing by extraordinary circumstances.” 	Dominguez v. Duval,
527 F. App’x 38, 40 (1st Cir. 2013); see also Trapp v. Spencer, 479 F.3d 53, 61 (1st Cir.
2007) (discussing illustrative cases). “The diligence prong covers those affairs within the
petitioner’s control, while the extraordinary-circumstances prong covers matters outside
his control.” 	Blue v. Medeiros, 913 F.3d 1, 8 (1st Cir. 2019). 	Petitioner does not allege
any circumstances that would support an equitable tolling finding.
A sufficient showing of “actual innocence” can also provide “a gateway through
which a petitioner may pass” to reach the merits of a postconviction challenge despite a
procedural default or the expiration of the statute of limitations. 	McQuiggin v. Perkins,
569 U.S. 383, 386 (2013). To establish a gateway innocence claim, a petitioner must show
that it is more likely than not that, “in light of the new evidence, no reasonable juror would
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find him guilty beyond a reasonable doubt.” 	House v. Bell, 547 U.S. 518, 538 (2006)
(discussing Schlup v. Delo, 513 U.S. 298, 329 (1995)). 	Petitioner does not present any
evidence that was not presented or available at trial bearing on the question of his guilt.
In sum, because Petitioner did not file the § 2255 motion within the applicable
limitation period, and because neither equitable tolling nor gateway actual innocence
applies, dismissal is warranted.
C ONCLUSION
Based on the foregoing analysis, an evidentiary hearing is not warranted under
Rule 8 of the Rules Governing Section 2255 Cases. I recommend that the Court dismiss
Petitioner’s motion for habeas relief under 28 U.S.C. § 2255. I further recommend that the
Court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing
Section 2255 Cases because there is no substantial showing of the denial of a constitutional
right within the meaning of 28 U.S.C. § 2253(c)(2).
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 5th day of February, 2026.
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