USA v. GOGUEN

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ROBERT FREDERICK GOGUEN, 	)
)
Petitioner, 	)
) 	1:11-cr-00003-JAW
v. 	) 	1:17-cv-00492-JAW
)
UNITED STATES OF AMERICA, 	)
)
Respondent. 	)
ORDER AFFIRMING RECOMMENDED DECISION ON
28 U.S.C. § 2255 MOTION
The 	Petitioner 	objects 	on 	various 	grounds 	to 	the 	Magistrate 	Judge’s
recommended decision to deny his habeas corpus petition, including his assertion that
at his sentencing hearing, he did not intelligently, knowingly and voluntarily waive
the right to contest an eight-level enhancement under the United States Sentencing
Guidelines, that his current legal arguments are not barred by the statute of
limitations because his current petition relates back to an earlier-filed document, that
the Government waived its right to assert the statute of limitations bar because in
addition to arguing the bar, it addressed the merits of his petition, that his petition
fits within exceptions to the running of the statute of limitations, that the statute of
limitations should be equitably tolled, and that he is actually innocent. 	The Court
analyzes each contention and rejects them as unsupported by the record or incorrect
on the law.
I. 	BACKGROUND
A. 	Criminal Cases
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1. 	United States v. Goguen – 1:11-cr-00003-JAW
On January 12, 2011, a federal grand jury indicted Robert Frederick Goguen
for failure to register as a sex offender. Indictment (ECF No. 1), 1:11-cr-00003-JAW.
On July 13, 2011, Mr. Goguen admitted he committed the charged crime, Min. Entry
(ECF No. 43), and on September 14, 2012, the Court sentenced him to thirty-seven
months of incarceration, three years of supervised release, a $100 special assessment
and no fine. 	J. (ECF No. 80); Am. J. (ECF No. 90). 	Mr. Goguen did not appeal his
conviction or sentence to the Court of Appeals for the First Circuit.
On August 16, 2013, the Government filed a petition on supervised release,
alleging a violation of the sex offender treatment condition of his supervised release
by downloading pornographic movies at the Penobscot County Judicial Center’s law
library. 	Pet. for Warrant or Summons for Offender under Supervision (ECF No. 96).
On September 23, 2013, Mr. Goguen admitted the violation, and the Court sentenced
him to five months of incarceration and thirty-one months of supervised release.
Revocation J. (ECF No. 113). Mr. Goguen appealed this revocation judgment to the
First Circuit claiming that his waiver of rights at the revocation hearing was not
knowing and voluntary and that the Court erred in imposing a sex offender treatment
condition as one of the conditions of his supervised release. J. of Court of Appeals for
the First Circuit (ECF No. 142). 	On October 9, 2014, the First Circuit affirmed the
judgment. Id.
On November 13, 2015, the Government filed a second petition alleging that
Mr. Goguen violated the terms of two conditions of supervised release by possessing
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child pornography on his computer. Pet. for Warrant or Summons for Offender under
Supervision (ECF No. 144). On January 21, 2016, Mr. Goguen filed a memorandum
challenging the applicability of the penalty provisions of 18 U.S.C. § 3583(k). 	Def.’s
Mem. in Opp’n to the Gov’t’s Req. to Apply the Penalty Ranges under 18 U.S.C. §
3583(k) (ECF No. 163). After further briefing, on November 2, 2016, the Court issued
an order, concluding that Mr. Goguen faced a maximum term of imprisonment on the
revocation petition of two years. Order on Mem. in Opp’n to the Gov’t’s Req. to Apply
the Penalty Ranges under 18 U.S.C. § 3583(k) (ECF No. 170).
On January 22, 2017, Mr. Goguen filed a motion to suppress evidence from the
supervised release proceeding. 	Def.’s Mot. to Suppress Evid. Regarding New Crim.
Charges and Supervise[d] Release Revocation Hr’g (ECF No. 174). 	On May 5, 2017,
the Magistrate Judge issued a recommended decision in which he recommended that
the Court deny the motion. 	Recommended Decision on Mot. to Suppress (ECF No.
186). 	After Mr. Goguen objected to the recommended decision, the Court affirmed
the recommended decision on June 19, 2017. 	Order Affirming the Recommended
Decision of the Magistrate Judge (ECF No. 190). On September 15, 2017, Mr. Goguen
admitted to the violations as alleged in the petition for revocation. Min. Entry (ECF
No. 193).
After multiple motions to continue the sentencing hearing, the hearing was
scheduled for February 13, 2019 at the same time as the sentencing hearing on the
new criminal charge in United States v. Goguen, 1:16-cr-00167-JAW. 	However, in
this case and on the new criminal charge, on February 5, 2019, Mr. Goguen’s counsel
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filed a motion for leave to withdraw as counsel citing a conflict of interest mandating
his withdrawal. 	United States v. Goguen, 1:16-cr-00167-JAW, Def.’s Ex Parte Mot.
for Leave to Withdraw as Counsel (ECF No. 109); United States v. Goguen, 1:11-cr-
00003-JAW, Def.’s Ex Parte Mot. for Leave to Withdraw as Counsel (ECF No. 277).
On February 7, 2019, the Court granted the motion to withdraw and continued the
sentencing hearing on both cases. 	United States v. Goguen, 1:16-cr-00167-JAW,
Order (ECF No. 110); United States v. Goguen, 1:11-cr-00003-JAW, Order (ECF No.
278).
2. 	United States v. Goguen – 1:16-cr-00167-JAW
Although not directly relevant to the pending objection, on December 14, 2016,
a federal grand jury indicted Mr. Goguen for possession of child pornography, an
alleged violation of 18 U.S.C. § 2252A. Indictment (ECF No. 1), 1:16-cr-00167-JAW.
There was a delay between the indictment and the guilty plea because Mr. Goguen
filed a motion to suppress evidence and a motion in limine. After these motions were
resolved, on September 15, 2017, Mr. Goguen pleaded guilty to this charge. 	Min.
Entry (ECF No. 64). Mr. Goguen’s sentencing hearing was delayed while the Court
considered his argument about the legal impact of his prior state of Connecticut
conviction in 1996 for sexual assault in the second degree. See Def.’s Mem. in Opp’n
to the App. of the Mandatory Minimum under 18 U.S.C. § 2252A(b)(2) (ECF No. 83);
Gov’t’s Resp. to Def.’s Mem. in Opp’n to the App. of the Mandatory Minimum under 18
U.S.C. § 2252A(b)(2) (ECF No. 86); Def.’s Reply to Gov’t’s Resp. to App. of Mandatory
Minimum (ECF No. 90). 	On November 16, 2018, the Court concluded that Mr.
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Goguen’s prior Connecticut conviction constitutes a qualifying prior offense that
triggers the mandatory ten-year imprisonment penalty under § 2252A(b)(2). 	Order
on Def.’s Mem. in Opp’n to Appl. of the Mandatory Minimum Under 18 U.S.C. §
2252A(b)(2) (ECF No. 92).
B. 	Robert Goguen v. United States – 1:17-cv-00492-JAW
On December 15, 2017, Mr. Goguen filed a pro se motion to vacate, set aside or
correct his sentence for his failure to register as a sex offender conviction pursuant to
28 U.S.C. § 2255. 	Mot. to Vacate, Set Aside or Correct Sentence (ECF No. 194). 	On
December 21, 2017, the Magistrate Judge ordered Mr. Goguen to file his § 2255
motion on a proper form, Order to File Mot. to Vacate, Set Aside or Correct Sentence
on Proper Form (ECF No. 195). On December 29, 2017, Mr. Goguen filed additional
paperwork in support of his challenge to his original sentence, his first revocation,
and the decision on his appeal. 	Supplement to Mot. to Vacate, Set Aside or Correct
Sentence (ECF No. 199). 	On January 26, 2018, the Magistrate Judge ordered the
Government to respond to Mr. Goguen’s 28 U.S.C. § 2255 motion. 	Order to Answer
(ECF No. 201). 	After Mr. Goguen amended his § 2255 motion, the Government
answered and moved to dismiss his motion on March 26, 2018. 	Gov’t’s Mot. to
Summarily Dismiss Pet’r’s § 2255 Pet., Resp. to § 2255 Pet., and Resp. to Pet’r’s Disc.
Filing (ECF No. 220) (Gov’t’s Opp’n). On April 20, 2018, Mr. Goguen filed a reply to
the Government’s response. 	Reply to Gov’t’s Resp. to 2255 (ECF No. 227). 	On
September 24, 2018, Mr. Goguen filed an amended § 2255 motion. 	Second Further
Amendment to [§] 2255 (ECF No. 252).
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On September 28, 2018, the Magistrate Judge recommended that the Court
deny Mr. Goguen’s § 2255 motion. Recommended Decision on 28 U.S.C. § 2255 Motion
(ECF No. 253) (Recommended Decision). 	After the Court granted Mr. Goguen’s
requests for an extension of time to file his objection to the Recommended Decision,
Letter (ECF No. 254); Order (ECF No. 255); Mot. to Extend Time to File Obj. to
Recommended Decision (ECF No. 258); Order (ECF No. 259), on November 27, 2018,
Mr. Goguen filed his objection. Obj. to the Magistrate[’]s Recommendation (ECF No.
261) (Pet’r’s Obj.). On December 10, 2018, the Government responded to Mr. Goguen’s
objection, directing the Court to its previous arguments raised in its opposition
memorandum to Mr. Goguen’s § 2255 motion. 	Gov’t’s Resp. to Pet’r’s Obj. to
Magistrate Judge’s Recommended Decision (ECF No. 263).
II. 	THE RECOMMENDED DECISION
The Magistrate Judge concluded that neither Mr. Goguen’s challenge to his
conviction nor to his revocation was timely under any of the provisions of 28 U.S.C. §
2255(f).1 	Recommended Decision at 6-7 (“[T]he judgment of conviction was entered
1 	Section 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
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
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on January 31, 2013; because Petitioner did not appeal, the judgment became final
14 days later, on February 14, 2013 . . . [t]he limitation period for filing a section 2255
motion . . . expired one year later . . . Petitioner filed his section 2255 motion in 2017
. . ..”); (“The revocation judgment became final on January 7, 2015, which was 90 days
after the October 9, 2014, [the] date on which the First Circuit issued its decision [on]
Petitioner’s appeal from the revocation judgment . . . [t]he limitation period expired
one year later . . . [Petitioner’s] December 2017 filing was untimely”). The Magistrate
Judge 	determined 	that 	Mr. 	Goguen 	had 	not 	asserted 	any 	facts 	to 	implicate
subsections (2)-(4) of section 2255. Id. at 7.
The Magistrate Judge dismissed Mr. Goguen’s equitable tolling arguments for
the relevant limitation periods. 	Id. 	The Magistrate Judge acknowledged that
equitable tolling, in appropriate instances, can toll § 2255(f)’s one-year limitation
period. 	Id. at 8 (quoting Ramos-Martínez v. United States, 638 F.3d 315, 321, 322
(1st Cir. 2011)). 	The Magistrate Judge noted that for equitable tolling to apply, it
“must be based on circumstances that prevented timely filing, allegations in support
of equitable tolling necessarily must relate, at least in part, to circumstances that
existed during the limitation period.” 	Id. at 9 (citing English v. United States, 840
F.3d 957, 958 (8th Cir. 2016)). After a thorough review of Mr. Goguen’s motion, the
Magistrate Judge concluded that “he fails to allege why he was unable to file his
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2255(f).
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section 2255 motion during other periods of time within the relevant limitation
periods, [February 14, 2013, to February 14, 2014, for his judgment of conviction, and
from January 7, 2015, to January 7, 2016, for his revocation judgment]”. Id.
III. 	THE POSITIONS OF THE PARTIES
A. 	Mr. Goguen’s Objection
In his twenty-five-page objection, Mr. Goguen advances several bases for why
the Magistrate Judge’s Recommended Decision was incorrect. 	See generally Pet’r’s
Obj. at 	1-25. 	He 	asserts 	“background 	corrections” 	to 	the 	Magistrate 	Judge’s
Recommended Decision. 	Id. at 1-2. 	Specifically, Mr. Goguen contends that the
Magistrate 	Judge 	speculates 	that 	he 	“willfully, 	intel[l]igently, 	and 	voluntarily
waived” the right to contest the eight-point enhancement at his sentencing and he
makes various disparaging remarks about his counsel at his sentencing hearing. Id.
at 1.
Next, Mr. Goguen claims he was not untimely in challenging his revocation
judgment because he mistitled a previous motion to the Court, Notice for Notice of
Appeal Consideration and Possible Appointment of Counsel (ECF No. 133) (Notice for
Notice of Appeal), that this previous motion is “nearly identical in nature, context,
and substance” to his § 2255 motion. Id. at 2-3. Mr. Goguen acknowledges that the
Government asserts that his motion is untimely, but he says that the Government
waived this argument because it also directed the Court to the merits of his motion.
Id. at 3 (citing Wood v. Milyard, 132 S. Ct. 1826 (2012)). Under the header “Statutory
Exceptions [§] 2255(f)(3),” Mr. Goguen states he is not sure what new rights might be
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available for him but that he did previously raise two qualifying rights. Id. at 4 (citing
McCoy v. Louisiana, 138 S. Ct. 1500 (2018); Montgomery v. Louisiana, 136 S. Ct. 718
(2016)). He argues these cases satisfy § 2255(f)(3). Id.
Mr. Goguen claims that he was denied the assistance of counsel at various
critical stages of his criminal case because he says his court appointed counsel was
“disloyal.” 	Id. at 5. 	He argues that his counsel “over[ode] his decision to withdraw
his [innocent] plea . . ..” 	Id. 	Mr. Goguen contends that the prosecution and his
attorney plotted to deprive him of his constitutional rights and that the prosecutor
lied about his eight-point enhancement. 	Id. at 6. 	He says such conduct satisfies §
2255(f)(4). Id.
Mr. 	Goguen 	avers 	that 	the 	Magistrate 	Judge’s 	analysis 	supporting 	his
conclusion that equitable tolling is inapplicable to his motion is incorrect. 	Id. at 8.
Mr. Goguen says that “[t]he relevant question for equitable tolling purposes is
w[h]ether petitioner took some type of action in pursuing his rights”, id. (citing Holes
v. Spencer, 822 F.3d 609 (1st Cir. 2016)), and that “[a]ttorney misconduct and
negligence warrants equitable tolling.” Id. (citing Holland v. Florida, 560 U.S. 631,
653 (2010); Ramos-Martinez v. United States, 638 F.3d 315, 323-24 (1st Cir. 2001)
(alterations in ordering)). 	As for evidence that he was pursuing his rights between
February 14, 2013 to February 14, 2014 and from January 7, 2015 to January 7, 2016,
Mr. Goguen says on February 21, 2013, his counsel sent him civil rights paperwork
but had not completed his “criminal document request”; and that from February 14,
2013 to May 11, 2013 he was “in solitary confinement with no documents, [or] access
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to proper materials . . ..” Id. at 8-9. Mr. Goguen blames the Court complimenting his
attorney as the reason why he did not follow through on his request for new counsel.
Id. at 9 (citing Appointment of Counsel (ECF No. 109)). 	Mr. Goguen argues his
“disloyal attorney never proceeded in any manner concerning [his] desires for an
appeal.” Id. at 10.
Mr. 	Goguen 	lists 	various 	claimed 	personal 	impediments 	to 	support 	his
equitable tolling argument, and argues that his lack of attorney-client relationship
constitutes a sufficient external impediment to equitably toll § 2255(f)’s one-year
filing period. 	Id. at 11-12. 	Mr. Goguen contends that he meets the “miscarriage of
justice” exception as his SORNA violation conviction was invalid because he did not
violate SORNA “knowingly.” 	Id. at 13-15. 	Mr. Goguen disputes the Magistrate
Judge’s conclusion that the Court lacked jurisdiction over his claims stemming from
his 1996 Connecticut conviction “because [he] does not allege he was in custody under
the 1996 judgment when he filed his habeas petition in this Court; the prosecution
version states he was released from ‘custody’ . . ..” 	Id. at 15 (citing Recommended
Decision at 1-2 n.1). He claims that he is actually innocent because his 1996
Connecticut conviction is unconstitutional and void, and therefore he is also innocent
of his SORNA violation conviction. 	Id. at 16. 	Mr. Goguen attacks the special
conditions imposed on him, arguing that it was “an abuse of authority to impose,
without 	court 	review, 	independent 	conditions, 	judgment 	then 	that 	cedes 	the
judiciary’s exclusive sentencing power to a probation officer . . ..” 	Id. at 17. 	Mr.
Goguen claims that the Magistrate Judge never read his motion and therefore
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overlooked various parts of his arguments. Id. at 18.
Mr. Goguen asks for a certificate of appealability if the Court were to find his
arguments unpersuasive. Id. at 20. Lastly, Mr. Goguen conducts a plain error review
of his sentencing guideline calculations to illustrate that there was a miscalculation
warranting relief under Rule 52(b). Id. at 20-22.
B. 	Government’s Opposition
The Government contends that Mr. Goguen’s § 2255 motion is untimely under
§ 2255(f)(1) for both his underlying conviction and his revocation judgment. 	Gov’t’s
Opp’n at 4-6.2 	The Government argues that “the exceptions stated in §2255(f)(2), (3),
and (4) do not apply to the petitioner’s §2255 [p]etition.” Id. at 6. As for the merits
of Mr. Goguen’s petition, the Government says Mr. Goguen’s claims of ineffective
assistance of counsel are “self-serving and unsubstantiated” and belied by the record
and his own statements to the Court. 	Id. at 7-8. 	As for Mr. Goguen’s other
arguments, the Government contends they either rehash arguments previously
decided and dismissed by the Court or are otherwise fatally flawed. Id. at 8-9.
IV. 	DISCUSSION
A. 	Background Corrections
Mr. Goguen claims that the Magistrate Judge speculated that he willfully,
intelligently, 	and 	voluntarily 	waived 	contesting 	the 	eight-level 	sentencing
enhancement, 	pursuant 	to 	United 	States 	Sentencing 	Guidelines 	(U.S.S.G.) 	§
2 	The Court refers to the ECF numbering for pincites because the Government’s opposition
memorandum is not paginated.
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2A3.5(a)(2) as part of the guideline calculations for his failure to register as a sex
offender conviction. Pet’r’s Obj. at 1.
In his objection, Mr. Goguen grossly mischaracterizes what occurred at his
September 14, 2012 sentencing hearing. Mr. Goguen claims that he wanted to object
to the eight-level enhancement but was coerced into conceding due to his “disloyal
attorney” and the Court’s “incorrect instructions and strong language.” Id. The Court
rejects Mr. Goguen’s allegations as highly inaccurate.
To place this issue in context, Mr. Goguen was subject to the eight-level
enhancement if the Court determined that he committed the crime of unlawful sexual
contact while he was in failure to register status. Tr. of Proceedings, 3:21-4:10 (ECF
No. 197) (Sentencing Tr.). 	The Probation Office recommended the eight-level
enhancement. Id. Mr. Goguen correctly points out that before the sentencing hearing
itself, he had objected to the imposition of the eight-level enhancement and that this
was his position at the outset of the sentencing hearing. 	Pet’r’s Obj. at 1. 	As the
Court confirmed at the beginning of the hearing, Mr. Goguen initially “object[ed] to
the eight-level enhancement, and you den[ied] committing the offense of unlawful
sexual contact.” Sentencing Tr. 4:15-18.
When the issue arose at the sentencing hearing, the Court carefully explained
to Mr. Goguen the significance of the eight-level enhancement and his decision to
contest the allegation of unlawful sexual contact. 	Id. 3:15-9:3. 	The Government
informed the Court that the nine-year-old girl who was the alleged victim of Mr.
Goguen’s unlawful sexual contact was in the courthouse, and the Government was
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prepared to call her to testify against Mr. Goguen at the sentencing hearing. Id. 6:16-
17.
Given the possibility that the Government would call the alleged victim, the
Court took the time to explain to Mr. Goguen the possible ramifications of his decision
either to contest or to admit the allegation of unlawful sexual contact. 	Id. 3:15-9:3.
Depending on the Court’s findings, Mr. Goguen faced ten to sixteen months to sixty-
three to seventy-eight months in prison. Id. 3:15-9:3. The Court took pains to outline
the issues, including the fact that the burden of proof to demonstrate the unlawful
sexual contact for federal sentencing purposes was going to be more likely than not,
not beyond a reasonable doubt. 	Id. 5:17-24. 	The Court reviewed for Mr. Goguen’s
benefit, the elements of unlawful sexual contact that the Government would have to
prove. 	Id. 5:25-6:14. 	The Court informed Mr. Goguen that if the little girl testified
and implicated him in the alleged crime, he would have to decide whether to take the
stand and deny the allegations. 	Id. 7:23-8:10. 	The Court reviewed the possibility
that he could be denied the three-level reduction for acceptance of responsibility and
could face a two-level enhancement for obstruction of justice, if the Court believed the
little girl and concluded that Mr. Goguen had lied on the stand. Id. 8:11-9:3. At the
same time, the Court told Mr. Goguen that if he was successful in defending the
unlawful sexual contact allegation, his guideline range would be only ten to sixteen
months. 	Id. 5:14-16. 	The Court told Mr. Goguen that it was not “prejudging this
because I don’t know anything about this other than the fact that it’s been charged.”
Id. 8:11-13. 	After carefully reviewing with Mr. Goguen his alternatives and the
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implications of his choices, the Court allowed Mr. Goguen to meet with his defense
counsel. Id. 9:5-10:13.
After Mr. Goguen spent almost an hour with his defense lawyer, he returned
to Court. 	Id. 10:15. 	The Court asked his defense lawyer whether Mr. Goguen had
arrived at a position regarding the proposed eight-level enhancement and his defense
lawyer responded:
Well, it - - your Honor, I believe - - as the court’s aware, we spoke quite
a while. 	I believe Mr. Goguen has decided not to press ahead with the
hearing this morning to challenge the eight-point enhancement. 	I - - I
think perhaps the court should inquire of Mr. Goguen just to make sure
that - - that he has reached that decision.
Id. 10:20-25. The Court turned to Mr. Goguen and said:
THE COURT: 	Mr. Goguen, would you stand. 	Mr. Goguen, we went
through, in some detail this morning, what the issue would be, and you
do 	understand 	the 	issue. 	The 	issue 	is 	whether 	you 	do 	get 	an
enhancement, as recommended by the probation office, of eight levels for
having committed a sex offense while in sex offender status. 	Do you
understand that’s the issue?
THE DEFENDANT: I do.
THE COURT: Do you wish to have a hearing on that issue, or do you
wish to concede that you committed a sex offense - - that it’s more likely
than not that you committed a sex offense while in sex offender status”
THE DEFENDANT: I don’t dispute it.
Id. 11:2-13.
The Court then expressly asked Mr. Goguen whether he had read and
understood the contents of the Presentence Investigation Report (PSR), which had
included the unlawful sexual contact allegation and the eight-level enhancement.
Mr. Goguen confirmed that he had read and understood the PSR. Id. 12:16-18. The
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Court expressly asked Mr. Goguen whether he believed there was anything in the
PSR that was inaccurate or incorrect. 	Mr. Goguen replied, “No, Your Honor.” 	Id.
12:24-13:2.
Following this colloquy, the Court heard from the prosecutor and from Mr.
Goguen’s attorney. 	The prosecutor pointed out to the Court that Mr. Goguen
deserved “enormous credit for the decision he has made here today to prevent or take
away the need for that little girl to take the stand and testify here in court.” Id. 19:16-
18. Mr. Goguen’s defense lawyer also urged the Court to give Mr. Goguen credit for
not requiring testimony from the girl. Id. 20:1-10.
The 	Court 	made 	guideline 	calculations 	that 	included 	the 	eight-level
enhancement for having committed a sex offense against a minor while in failure to
register 	status 	and 	Mr. 	Goguen’s 	counsel 	did 	not 	object 	to 	those 	guideline
calculations. 	Id. 22:16-23:13. 	The resultant guideline sentence range was thirty-
seven to forty-six months of incarceration. Id. 22:25-26:2. The Court also expressly
credited Mr. Goguen with his decision not to require the little girl to testify. Id. 28:4-
12. Further, as the Court noted, as a result of acknowledging the sex offense against
a minor enhancement, he received a credit for the 622 days he had spent in state
custody related to that offense. 	Id. 28:17-29:3. 	Facing a thirty-seven to forty-six-
month guideline range, Mr. Goguen was sentenced to a sentence of sixteen months
once the credit for the time in state custody was given. Id. 38:9-12.
In sum, as the transcript of the sentencing hearing demonstrates, contrary to
Mr. Goguen’s current assertion, the Magistrate Judge did not “speculate” about
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whether Mr. Goguen had voluntarily and knowingly waived his right to contest the
eight-level enhancement. At the sentencing hearing, Mr. Goguen with full knowledge
of the alternatives consciously elected not to dispute the charge that he had engaged
in unlawful sexual contact while in failure to register status. Mr. Goguen’s claim to
the contrary rewrites history. In addition, the Court rejects Mr. Goguen’s argument
that the Court improperly instructed him when it told him that the Government was
“not going to have to be required to prove this crime beyond a reasonable doubt.”
Pet’r’s Obj. at 1 (quoting Sentencing Tr. 5). 	As the First Circuit has written, “[i]t is
the government's burden at sentencing to prove sentencing enhancement factors by
a preponderance of the evidence.” United States v. Lacouture, 835 F.3d 187, 189–90
(1st Cir. 2016) (citation omitted).
B. 	Legal Arguments
1. 	Relation Back
Mr. 	Goguen’s 	legal 	arguments 	for 	why 	the 	Court 	should 	reject 	the
Recommended Decision lack merit. 	Mr. Goguen contends his Notice for Notice of
Appeal suffices to make his § 2255 motion timely because he says the documents are
“nearly identical.” 	Pet’r’s Obj. at 2-3 (citing Smoak v. United States, 12 F. Supp. 3d
254 (D. Mass. 2015)). Although not obvious, Mr. Goguen appears to suggest that his
present § 2255 motion “relates back” to his Notice for Notice of Appeal, making his §
2255 timely. See id. at 2-3.
In Mayle v. Felix, 545 U.S. 644 (2005), the United States Supreme Court stated,
“[s]o long as the original and amended petitions state claims that are tied to a
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common core of operative facts, relation back will be in order.” 	Id. at 664; see also
United States v. McCurdy, No. 1:06-CR-00080-JAW, 2013 WL 5431448, at *19 (D. Me.
Sept. 27, 2013) (“ [In Mayle] the Supreme Court held that an amendment to a habeas
petition did not relate back when it stated a claim under a different Bill of Rights
amendment from that claimed as a ground in the original petition”) (citing Mayle,
545 U.S. at 648-49). 	In Smoak, the petitioner sought to “relate back” an untimely
memorandum to his timely § 2255 motion. Smoak, 12 F. Supp. 3d at 262. The Court
compared the petitioner’s timely habeas petition and his untimely memorandum, and
dismissed those claims as barred by the statute of limitations based on arguments or
facts not previously raised in the timely habeas petition. Id. at 262-64.
Mr. Goguen’s § 2255 motion does not relate back to his Notice for Notice of
Appeal because his Notice for Notice of Appeal was not a habeas petition which he
could relate back his present § 2255 motion claims. As the Magistrate Judge outlined,
“Petitioner’s document docketed at ECF No. 133, dated January 7, 2014, and entitled
“Motion for Notice of Appeal and Possible Appointment of Counsel,” . . . was . . .
dismissed without prejudice . . . because the First Circuit had granted Petitioner’s
request for new counsel on appeal.” Recommended Decision at 3.
Mr. Goguen attempts to avoid this conclusion by stating that “it is undeniable
that [he] mistitled” the motion and that it “was mischaracterized by the courts.”
Pet’r’s Obj. at 2-3. 	The Court disagrees. Federal Rule of Civil Procedure 15(c) is
applicable to habeas petitions and allows a petitioner to amend a pleading after the
statute of limitations has run to “relate back” to the original pleading if certain factors
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are present. F ED. R. CIV. P. 15(c); Mayle, 545 U.S. at 655. “The ‘original pleading’ to
which Rule 15 refers is the complaint in an ordinary civil case, and the petition in
habeas proceeding.” Ross v. Williams, 896 F.3d 958, 963 (9th Cir. 2018) (citing Mayle,
545 	U.S. 	at 	655) 	“The 	relation 	back 	provision 	in 	habeas 	petitions 	is 	strictly
construed.” Turner v. United States, 699 F.3d 578, 585 (1st Cir. 2012) (citing United
States v. Ciampi, 419 F.3d 20, 23 (1st Cir. 2005)). “Whether a new claim relates back
is a matter of within the district court’s discretion, as the decision is reviewed for an
abuse of discretion.” 	See id. 	Even overlooking the title of his Notice for Notice of
Appeal, the substance of this document was to file an appeal and have counsel
appointed, not to serve as a § 2255 filing. See Notice for Notice of Appeal (“I, Robert
Goguen, am the defendant in the above matter and hereby request this court to accept
my notice of appeal as timely and to appoint counsel”); see also Order on Mot. for
Recons., Mot. for Possible Appointment of Counsel, and Mot. for Release of Seized
Property, at 4 (ECF No. 140) (“This letter suggests that the Court of Appeals for the
First Circuit has appointed Attorney Gail Latouf . . . to represent Mr. Goguen on
appeal and in fact the First Circuit docket reflects that it granted Mr. Goguen’s
request for new counsel on appeal on October 10, 2013, appointing Attorney Latouf”);
United States v. Robert Goguen, No. 13-2230, slip op. at 1 (1st Cir. Oct. 10, 2013)
(“Appellant’s request for appointment of new counsel on appeal . . .”).3
3 	The First Circuit ultimately found “no error, let alone plain error” in regard to Mr. Goguen’s
“waiver of rights respecting his revocation hearing . . ..” United States v. Robert Goguen, No. 13-2230,
J., at 1 (1st Cir. Oct. 9, 2014).
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Mr. Goguen’s broad application of Rule 15, moreover, would amount to a
“judicial rescission” of the Anti–Terrorism and Effective Death Penalty Act of 1996’s
(AEDPA) statute of limitations. 	See United States v. Espinoza, 235 F.3d 501, 505
(10th Cir. 2000) (outlining concerns of an overly broad application of Rule 15 to
habeas petitions); Pelletier v. United States, No. 1:06-cr-00058-JAW, 1:13-cv-00202-
JAW, 2014 WL 12687734, at *10 (D. Me. June 17, 2014) (“A petitioner may not use
an amended petition as a way to circumvent the limitations period set forth in 28
U.S.C. § 2255”), report and recommendation adopted, No. 1:06-cr-00058-JAW-01,
2015 WL 7458522 (D. Me. Nov. 24, 2015). The Court concludes that Mr. Goguen’s §
2255 motion does not relate back to his Notice for Notice of Appeal.
2. 	Waiver
Mr. Goguen is incorrect that the Government waived its statute of limitations
argument. 	Pet’r’s Obj. at 3. 	Mr. Goguen acknowledges the Government raised a
statue of limitations argument, but he argues the Government waived the statute of
limitations defense by addressing the merits of his § 2255 motion. 	Id. at 3 (citing
Wood v. Milyard, 566 U.S. 463 (2012)). In Wood, the Supreme Court held that, “courts
of appeals, like district courts, have the authority . . . to raise a forfeited timeliness
defense on their own initiative . . . [and that] appellate courts should reserve that
authority for use in exceptional cases.” 	Id. at 473. 	Here, the Court concludes the
Government did not waive its statute of limitations argument by also addressing the
merits of Mr. Goguen’s appeal. See Gov’t’s Opp’n at 4-6; Gov’t’s Resp. to Pet’r’s Obj. to
Magistrate Judge’s Recommended Decision at l; Wood, 566 U.S. at 474 (“Waiver is the
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intentional relinquishment or abandonment of a known right”) (internal punctuation
and citation omitted)).
3. 	Section 2255(f)(3)-(4)
Mr. Goguen’s arguments under § 2255(f)(3)-(4) are also not persuasive. 	The
one-year statute of limitations to file a § 2255 motion begins to run from the latest of:
(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.
§ 2255(f)(3)-(4). 	Mr. Goguen cites McCoy v. Louisiana, 138 S. Ct. 1500 (2018) and
Montgomery v. Louisiana, 136 S. Ct. 718 (2016), as applicable to his petition and
falling under § 2255(f)(3). 	Pet’r’s Obj. at 3-4. 	Putting aside whether these cases
created 	a 	newly 	recognized 	right 	retroactively 	applicable 	to 	habeas 	petitions,
prerequisites for § 2255(f)(3), see Butterworth v. United States, 775 F.3d 459, 463 (1st
Cir. 2015), both cases are distinguishable from Mr. Goguen’s case.
In McCoy, the defendant expressly told his attorney not to concede that he
committed triple murders, but in the attorney’s opening statement at the guilt phrase
of the defendant’s trial, his attorney “told the jury there was no way reasonably
possible that they could hear the prosecution's evidence and reach any other
conclusion than Robert McCoy was the cause of these individuals’ deaths.’” 	138 S.
Ct. at 1506 (internal quotation marks omitted). The Supreme Court concluded that
the attorney violated his client’s Sixth Amendment rights and held that “a defendant
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has the right to insist that counsel refrain from admitting guilt, even when counsel's
experienced-based view is that confessing guilt offers the defendant the best chance
to avoid the death penalty.” 	Id. at 1505. 	Montgomery concerned whether the
Supreme Court’s holding in Miller v. Alabama, 567 U.S. 460 (2012), where the
Supreme Court held that, absent special circumstances, a juvenile could not be
sentenced to life in prison without parole, was retroactively applicable “on collateral
review to people condemned as juveniles to die in prison.” 136 S. Ct. at 727.
Neither is applicable to Mr. Goguen. 	Mr. Goguen was not sentenced as a
juvenile, and the record shows his previous counsel did not override his autonomy.
On July 14, 2011, Mr. Goguen pleaded guilty to failure to register as a sex offender
in violated of SORNA, 18 U.S.C. § 2250(a). Min. Entry (ECF No. 43). At that hearing,
Mr. Goguen stated that he was pleading guilty because he was actually guilty, that
he understood he was giving up various constitutional rights, and no one had made
any promises to him an effort to get him to plead guilty. Tr. of Proceedings 5:21-6:4,
10:3-11:21, 16:6-8 (ECF No. 156) (2011 Tr.). 	On September 23, 2013, Mr. Goguen
admitted to violating the conditions of his supervised release and waived his right to
a hearing. 	Min. Entry (ECF No. 112). 	At that revocation hearing, Mr. Goguen
withdrew his motion for the appointment of new counsel, conceded that he violated
his terms of supervised release, and expressed remorse for his actions. 	Tr. of
Proceedings 2:14-18, 6:1-4, 14:16-18 (ECF No. 139) (2013 Tr.). 	Mr. Goguen has not
implicated § 2255(f)(3) for either his judgment of conviction or the revocation
judgment. 	See United States v. Butt, 731 F.2d 75, 80 (1st Cir. 1984) (quoting
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Crawford v. United States, 519 F.2d 347 (4th Cir. 1975) (“[A] defendant should not be
heard to controvert his Rule 11 statements in a subsequent § 2255 motion unless he
offers a valid reason why he should be permitted to depart from the apparent truth
of his earlier statements”) (alterations omitted)).
Section 2255(f)(4) “runs not from when the prisoner discovers the legal
consequences of the facts supporting his claim but from when the prisoner could
reasonably have discovered the underlying facts themselves.” United States v.
Aguilar-Alvarez, No. 1:08-cr-10123-DJC, 2015 WL 8082369, at *3 (D. Mass. Dec. 7,
2015) (internal quotation marks and citation omitted) (alterations in original); see
also United States v. Pollard, 416 F.3d 48, 55 (D.C. Cir. 2005) (rejecting prisoner’s
argument that his petition was timely under § 2255(f)(4) because “[w]hether an
attorney should have performed a particular task drives the legal inquiry into the
existence of an ineffective-assistance-of-counsel claim”) (emphasis omitted). “To the
extent the petitioners attempt to argue that § 2255(f)(4) applies, their argument is
unavailing because the discovery of a new legal theory does not constitute a
discoverable ‘fact’ for purposes of § 2255(f)(4).” Barreto–Barreto v. United States, 551
F.3d 95, 99 n.4 (1st Cir. 2008); Miles v. United States, 1:10–cr–00076–JAW, No. 1:13–
cv–00382–JAW, 2014 WL 1404561, at *5 (D. Me. Apr. 10, 2014) (rejecting petitioner’s
§ 2255(f)(4) argument because he asserted “no facts that were discovered through the
exercise of due diligence”). 	Mr. Goguen’s objection does not show newly discovered
facts, but either repeats previously raised legal arguments or asserts new legal
theories, neither of which satisfy § 2255(f)(4).
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4. 	Equitable Tolling
Nor is Mr. Goguen entitled to equitable tolling for § 2255(f)’s statute of
limitations. 	Mr. Goguen originally filed his § 2255 motion in 2017. 	Mot. to Vacate,
Set Aside or Correct Sentence at 1. Mr. Goguen’s judgment of conviction became final
on February 14, 2013, making the relevant period for equitable tolling purposes from
February 14, 2013 to February 14, 2014. See F ED. R. APP . P. 4(b)(1)(A); Clay v. United
States, 537 U.S. 522, 532 (2003). The relevant time period for his revocation judgment
is from January 7, 2015, to January 7, 2016, because his January 7, 2015, was ninety
days after the First Circuit’s decision on his appeal from revocation judgment. 	See
Rule 13 of the Rules of the Supreme Court of the United States. 	The Magistrate
Judge thoroughly explained the equitable tolling standard for § 2255:
The First Circuit has held “that section 2255(f) is non-jurisdictional” and
that the one-year limitation period “is subject to equitable tolling in
appropriate instances.” Ramos-Martínez, 638 F.3d at 321-22. “A habeas
petitioner bears the burden of establishing the basis for equitable
tolling. To carry this burden, the petitioner must show ‘(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.’” Id. at 323
(citation and quotation marks omitted) (quoting Holland, 560 U.S. at
649). “Equitable tolling affords the otherwise time-barred petitioner an
exceedingly narrow window of relief.” English v. United States, 840 F.3d
957, 958 (8th Cir. 2016) (citation and alteration omitted). 	Because
equitable tolling must be based on circumstances that prevented timely
filing, allegations in support of equitable tolling necessarily must relate,
at least in part, to circumstances that existed during the limitation
period. See id [; see also Dixon v. United States, 729 F. App'x 16, 19 (1st
Cir. 2018) (per curiam) (“Put simply, the petitioner must satisfy the
court that circumstances beyond his control prevented him from filing
his motion within the one-year window provided by section 2255(f)”].
“Equitable tolling should be invoked only ‘sparingly.’” Ramos-Martinez, 638 U.S. at
323.
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Mr. Goguen’s equitable tolling arguments in his objection track his previous
arguments in his § 2255 motion, which the Magistrate Judge reviewed and dismissed.
Compare Pet’r’s Obj. at 7-12 with Recommended Decision at 7-9. 	Mr. Goguen says
“[t]he relevant questions for equitable tolling [are] w[h]ether petitioner took some
type of action in pursuing his rights, Holmes v. Spencer, 822 F.3d 609 (1st Cir. 2016).
Attorney misconduct or negligence warrants equitable tolling.” 	Pet’r’s Obj. at 8.
Contrary to Mr. Goguen’s assertion, it is not enough for a petitioner to take “some
action,” rather it is the petitioner’s burden to show he was “diligently” pursuing his
rights, and that “some extraordinary circumstance stood in his way and prevented
timely filing.” Ramos-Martinez, 638 U.S. at 323.
Although Mr. Goguen makes various complaints about the United States
Probation Office, his conditions upon release from prison in 2014, and his legal
representation, as the Magistrate Judge concluded, Mr. Goguen has not adequately
alleged why he was prevented from filing his § 2255 motion within the relevant
limitation periods. 	Pet’r’s Obj. at 9-11. 	Moreover, Mr. Goguen’s claims about his
previous counsel, which are either contradicted by the record or conclusory and not
supported, do not show an extraordinary circumstance which prevented him from
timely filing. 	See Holland, 560 U.S. at 652 (“a garden variety claim of excusable
neglect . . . does not warrant equitable tolling”); Lawrence v. Florida, 549 U.S. 327,
336-37 (2007); 	see also United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993)
(stating that a court, in deciding whether to hold a 2255 evidentiary hearing, “need
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not 	give 	weight 	to 	conclusory 	allegations, 	self-interested 	characterizations,
discredited inventions, or opprobrious epithets”).
5. 	Actual Innocence Exception
Mr. Goguen also asserts that his § 2255 motion should be granted because he
is actually innocent. 	Pet’r’s Obj. at 12-17. 	“An actual innocence claim is a gateway
through which a habeas petitioner may have his otherwise barred constitutional
claim 	considered 	on 	the 	merits.” 	Barreto-Barreto, 	551 	F.3d 	at 	102 	(internal
punctuation omitted) (quoting Schlup v. Delo, 513 U.S. 298, 315 (1995) (quoting
Herrera v. Collins, 506 U.S. 390, 404 (1993))). To succeed, a “petitioner must establish
that, in light of new evidence, it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt.” 	Id. (citation and internal
quotation marks omitted). Moreover, the petitioner needs to show “factual innocence,
not mere legal insufficiency.” 	Bousley v. United States, 523 U.S. 614, 623 (1998).
Whether the actual innocence operates as an exception to § 2255(f)’s statute of
limitations is undecided in the First Circuit. 	See Barreto-Barreto, 551 F. 3d at 102
(“We have not adopted an actual innocence exception to § 2255's one-year limitations
period in this circuit . . . . We decline to settle this issue here”).
However, in 2013, in McQuiggin v. Perkins, the Supreme Court held “that a
federal habeas court, faced with an actual-innocence gateway claim, should count
unjustifiable delay on a habeas petitioner's part, not as an absolute barrier to relief,
but as a factor in determining whether actual innocence has been reliably shown.”
569 U.S. 383, 387 (2013). The Supreme Court reiterated that this exception “applies
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to a severely confined category: cases in which new evidence shows ‘it is more likely
than not that no reasonable juror would have convicted the petitioner.’” Id. at 395
(alterations in original) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)); see also
Miles v. United States, No. 1:10-cr-00076-JAW, 2014 WL 1404561, at *5 (D. Me. Apr.
10, 2014) (discussing McQuiggin); Collado v. United States, No. 1:03-cr-10404-PBS,
2013 WL 3943522, at *2 n.2 (D. Mass. July 29, 2013) (quoting McQuiggin, 569 U.S.
at 395) (“Petitioner must persuade the district court that, ‘in light of the new
evidence, no juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt’”). 	Mr. Goguen has not shown that he falls under this “severely
confined category” because he has not produced new evidence showing factual
innocence, but to support his argument he only rephrases legal arguments previously
considered in this order, earlier hearings, or other orders by the Court. See Barreto-
Barreto, 551 F. 3d at 102.
6. 	Remaining Arguments
Mr. Goguen’s remaining arguments either lack merit or reiterate arguments
that the Court and the Magistrate Judge have previously rejected either in this or
prior orders. 	See Recommended Decision; Order on Mem. in Opp’n to the Gov’t’s
Request to Apply the Penalty Ranges Under 18 U.S.C. § 3583(k) (ECF No. 170); R &
R Decision on Mot. to Suppress (ECF No. 186); Order Adopting R & R Decision for
Mot. to Suppress (ECF No. 190); Order Overruling Obj. to Magistrate Judge’s Order
Denying Mot. for Trs. and Disc. (ECF No. 249); Order on Def.’s Mem. in Opp’n to Appl.
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of the Mandatory Minimum Under 18 U.S.C. § 2252A(b)(2) (ECF No. 92), 1:16-cr-
00167-JAW-1.
V. 	CONCLUSION
The Court has reviewed and considered the Magistrate Judge’s Recommended
Decision, 	together 	with 	the 	entire 	record. 	The 	Court 	has 	made 	a 	de 	novo
determination of all matters adjudicated by the Magistrate Judge’s Recommended
Decision. 	The Court concurs with the recommendations of the United States
Magistrate Judge for the reasons set forth in his Recommended Decision, and
determines that no further proceeding is necessary.
1. 	It 	is 	therefore 	ORDERED 	that 	the 	Recommended 	Decision 	of 	the
Magistrate Judge be and hereby is AFFIRMED (ECF No. 253).
2. 	It is further ORDERED that the Petitioner’s 28 U.S.C. § 2255 Petition be
and hereby is DENIED.
3. 	It is further ORDERED that no certificate of appealability should issue in
the event the Petitioner files a notice of appeal because there is no
substantial showing of the denial of a constitutional right within the
meaning of 28 U.S.C. § 2253(c)(2).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 7th day of February, 2019
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