United States v. McAbee
685 F. App'x 682
| 10th Cir. | 2017Background
- McAbee pled guilty to possession and distribution of child pornography based on (1) an image downloaded via FrostWire on Sept. 19, 2011, and (2) 203 images and 1 video recovered from his computer’s unallocated space after a warrant search on Nov. 7, 2011.
- Judgment entered July 26, 2012; conviction became final Aug. 9, 2012, when he did not appeal.
- He filed a § 2255 motion on July 27, 2015, alleging ineffective assistance of counsel for failing to identify controlling case law (Schaefer, Flyer) and an FTC press release about FrostWire; sought equitable and statutory tolling and asserted actual innocence.
- The district court dismissed the § 2255 motion as untimely under 28 U.S.C. § 2255(f)(1) and denied equitable tolling for ignorance of the law; it did not address actual innocence or statutory-tolling arguments.
- McAbee sought a certificate of appealability (COA); the Tenth Circuit reviewed whether reasonable jurists could debate the procedural ruling and the underlying claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / equitable tolling for ignorance of law | McAbee argued his imprisonment and lack of legal experience excuse late filing | Government: ignorance of law is not an extraordinary circumstance warranting equitable tolling | Denied — ignorance of law and pro se status do not justify equitable tolling; motion untimely |
| Actual innocence gateway to overcome limitations | McAbee: lacked mens rea; images were in unallocated space requiring forensic software; FrostWire misled users about sharing | Govt: McAbee pled guilty, admitted knowledge and FrostWire use; no new reliable exculpatory evidence | Denied — guilty plea admissions and lack of new evidence defeat actual innocence claim |
| Statutory tolling under §2255(f)(4) (newly discovered facts) | McAbee: discovered legal authorities and FTC release only later; counsel failed to find them | Govt: Schaefer/Flyer predate plea; §2255(f)(4) covers facts, not later discovery of legal theory; press release was publicly available earlier and not newly discovered with due diligence | Denied — plaintiff knew the factual basis earlier; later discovery of legal significance or public press release does not invoke §2255(f)(4) |
| Certificate of Appealability standard | McAbee: reasonable jurists could debate procedural denial and underlying claims | Government: district court’s procedural ruling and denials are correct and not debatable | Denied — no substantial showing of denial of constitutional right; COA refused |
Key Cases Cited
- Miller-El v. Cockrell, 537 U.S. 322 (2003) (COA jurisdictional standard)
- Slack v. McDaniel, 529 U.S. 473 (2000) (when COA should issue where district court denies on procedural grounds)
- McQuiggin v. Perkins, 133 S. Ct. 1924 (2013) (actual innocence can excuse procedural barriers)
- Schlup v. Delo, 513 U.S. 298 (1995) (new, reliable evidence required for actual innocence gateway)
- Tollett v. Henderson, 411 U.S. 258 (1973) (guilty plea admissions limit later claims of innocence)
- Bousley v. United States, 523 U.S. 614 (1998) (actual innocence means factual innocence, not legal insufficiency)
- United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007) (discussion of unallocated-space evidence and knowledge)
- United States v. Flyer, 633 F.3d 911 (9th Cir. 2011) (reversal where no proof defendant knew of images in unallocated space)
- Marsh v. Soares, 223 F.3d 1217 (10th Cir. 2000) (ignorance of law ordinarily does not justify equitable tolling)
- United States v. Dunn, 777 F.3d 1171 (10th Cir. 2015) (placing files in a shared folder can constitute distribution)