United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
April 25, 2008, Charles Furth was sentenced by United States
District Judge William D. Quarles, Jr. to a 168-month term of
imprisonment on one count of distribution of child
pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B).
Criminal judgment was entered on April 29, 2008. See
United States v. Furth, Criminal No. RDB-07-0557 (D.
Md.) at ECF No. 16. No appeal was noted.
October 16, 2017, Furth, who is now confined at the Federal
Correctional Institution in Fort Dix, New Jersey, filed his
first Motion to Vacate pursuant to 28 U.S.C. § 2255,
dated September 26, 2017, raising a challenge to his
sentence. He argues that, due to Amendment 801 of the United
States Sentencing Guidelines ("USSG"), his sentence
should be reduced. United States v. Furth, Criminal
No. RDB-07-0557 (D. Md.) at ECF No. 18, p. 4.
October 18, 2017, the Court issued a show cause order
granting the parties an opportunity to brief the issue of
timeliness. Id. at ECF No. 19. On December 8, 2017,
the Government filed a response, arguing that the Motion to
Vacate was time-barred. See United States v. Furth,
Criminal No. RDB-07-0557 (D. Md.) at ECF No. 20. Furth has
not filed a Reply, although provided the opportunity to do
judgment was entered on April 29, 2008. As noted, Furth did
not file an appeal. A criminal conviction becomes final at
the end of the appellate process, which is "when the
time for a direct appeal expires and the defendant has not
noticed an appeal or, if the defendant pursues an appeal,
when the time for filing a petition for certiorari expires;
once final, that judgment is presumptively valid and can
serve as the basis for future proceedings and
judgments." United States v. Oliver, - F.3d __,
__, 2017 WL 6505851, *3 (4th Cir. Dec. 20, 2017). Furth's
conviction became final when the 14-day period for filing an
appeal pursuant to Fed Rule App. Proc. 4(b)(1) expired, or on
May 13, 2008. Therefore, Furth had until May 13, 2009, to
file a timely Motion to Vacate. He did not do so.
asserts that the USSG Amendment at issue,
"Retroactive" Amendment 801, did not become
available until November 1, 2016. United States v.
Furth, Criminal No. RDB-07-0557 (D. Md.) at ECF No. 18,
p. 8. He seemingly invokes 28 U.S.C. § 2255(f)(3) to
assert that his Motion is timely because it was filed within
one year of the enactment of the Amendment.
28 U.S.C. § 2255(f)(3) provides that the one-year
limitation period shall run from 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.
On November 1, 2016, the United States Sentencing Commission
("Commission") amended § 2G2.2(b)(3)(B) to
reject the view that a defendant's knowing use of
file-sharing software generally satisfies the requirements
for a five-level enhancement. The amended guideline provides
that the enhancement applies only? if "the defendant
distributed in exchange for any valuable consideration."
USSG § 2G2.2(b)(3)(B) (2016); see USSG App. C,
amend. 801. This means that the increase applies where a
defendant "agreed to an exchange with another person
under which the defendant knowingly distributed to that other
person for the specific purpose of obtaining something of
valuable consideration from that other person, such as other
child pornographic material, preferential access to child
pornographic material, or access to a child."
Id., comment (n.1).
order for a Supreme Court decision to restart the one-year
statute of limitations under § 2255(f)(3), the decision
must both (1) recognize a new right and (2) be made
retroactively applicable to cases on collateral review.
See 28 U.S.C. § 2255(f)(3). Furth may not rely
on the USSG Amendment to restart the limitations period as
the amendment by the Commission is not a decision by the
Supreme Court decision recognizing a new right and is not a
decision that has been made retroactive. As such, Furth's
argument for statutory tolling cannot prevail.
one-year limitation period may be forgiven if a petitioner
shows that "1) extraordinary circumstances, 2) beyond
his control or external to his own conduct, 3)... prevented
him from filing on time." United States v.
Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (citing
Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003)
(en banc)). A petitioner must show some wrongful
conduct by a respondent contributed to the delay in filing,
or that circumstances beyond his control caused the delay.
See Rouse, 339 F.3d at 246. "[A]ny resort to
equity must be reserved for those rare instances where... it
would be unconscionable, to enforce the limitation period
against the party and gross injustice would result."
Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.
2006). Generally, the petitioner must show that he has been
diligently pursuing his rights and some extraordinary
circumstance prevented him from filing a timely petition.
See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);
Rouse, 339 F.3d at 246. Furth does not provide
evidence indicating he is entitled to equitable tolling.
Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme
Court held that "[w]hen the district court denies a
habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a Certificate
of Appealability should issue when the prisoner shows, at
least, that... jurists of reason would find it debatable
whether the district court was correct in its procedural
ruling." Slack, 529 U.S. at 484. Furth does not
satisfy this standard, and the Court declines to issue a
Certificate of Appealability. The Motion to Vacate shall be
dismissed. A separate Order follows.
 Amendment 801 of the USSG went into
effect on November 1, 2016, and requires that in order for a
two-level enhancement to apply, the distribution of child
pornography be done knowingly. See USSG Supp. to
App'x. C, Amend. 801; see also United States v.