Opinion
CRIMINAL ACTION NO. 1:09-CR-245-TCB-AJB-1 CIVIL ACTION NO. 1:20-CV-4239-TCB-AJB
10-15-2020
CRAIG CARROLL, BOP Reg. # 59761-019, Movant, v. UNITED STATES OF AMERICA, Respondent.
MOTION TO VACATE 28 U.S.C. § 2255
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION
Movant, Craig Carroll, confined in the United States Penitentiary in Thomson, Illinois ("U.S.P. Thomson"), submitted a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. [Doc. 279.] The matter is before the Court for preliminary review pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. For the reasons discussed below, the undersigned RECOMMENDS that the § 2255 motion be DISMISSED as untimely.
Citations to the record in this Final Report and Recommendation refer to case number 1:09-cr-245-TCB-AJB-1. The Clerk is DIRECTED to update Movant's address on both the civil and criminal docket sheets. [See Doc. 279 at 3, 7, 8 (showing that Movant is confined in U.S.P. Thomson).]
I. Discussion
A jury found Movant guilty of (1) interference with interstate commerce by robbery, in violation of 18 U.S.C. §§ 2 & 1951, (2) use of a firearm during the commission of a crime of violence, in violation of 18 U.S.C. §§ 2 & 924(c)(1)(A)(ii), and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). [Doc. 202 at 1.] Movant was sentenced to 295 months of imprisonment, followed by five years of supervised release. [Id. at 2-3.] The United States Court of Appeals for the Eleventh Circuit affirmed. See United States v. Carroll, 450 Fed. Appx. 937 (11th Cir. Jan. 12, 2012) (per curiam). [Doc. 25.]
On June 24, 2016, Movant filed a counseled § 2255 motion. [Doc. 230.] On March 16, 2017, Movant voluntarily dismissed the § 2255 motion after the United States Supreme Court issued a decision rejecting the same argument he raised. [Doc. 237.] On September 14, 2020, the Eleventh Circuit denied as unnecessary Movant's application for leave to file a second or successive § 2255 motion because his counseled § 2255 motion was not decided on the merits. [Doc. 276.]
In his present § 2255 motion, submitted on October 7, 2020, Movant claims that he was improperly sentenced as a career offender. [Doc. 279 at 1-7.] Movant relies on Mathis v. United States, 136 S. Ct. 2243 (2016), Descamps v. United States, 570 U.S. 254 (2013), and Taylor v. United States, 495 U.S. 575 (1990). [Id. at 3.]
Summary dismissal of a § 2255 motion is proper "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief . . . ." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. A § 2255 motion is subject to the one-year statute of limitations provided by 28 U.S.C. § 2255(f). The one-year period runs from the latest of the dates on which (1) Movant's convictions became final; (2) a Government impediment to making the § 2255 motion was removed; (3) a right that Movant asserts was initially recognized by the United States Supreme Court, if the right has been newly recognized and made retroactively applicable to cases on collateral review; or (4) Movant, with due diligence, could have discovered the facts supporting his claims. See 28 U.S.C. § 2255(f)(1)-(4).
Under § 2255(f)(1), Movant had ninety days in which to seek certiorari in the Supreme Court after the Eleventh Circuit affirmed on January 12, 2012. See Sup. Ct. R. 13.1. Because Movant did not seek certiorari, his convictions became final on April 11, 2012. See Clay v. United States, 537 U.S. 522, 525 (2003). The one-year statute of limitations expired on April 11, 2013. Movant submitted his § 2255 motion more than seven years late, on October 7, 2020.
The one-year period is calculated using the "anniversary method, under which the limitations period expires on the anniversary of the date it began to run." Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008) (internal quotation marks omitted).
Section 2255(f)(3) does not apply because Mathis, Descamps, and Taylor do not contain rights that are newly recognized and retroactively applicable. See In re Hernandez, 857 F.3d 1162, 1164 (11th Cir. 2017) (regarding Mathis); Beeman v. United States, 871 F.3d 1215, 1220 (11th Cir. 2017) (regarding Descamps); United States v. Hill, CR608-019, 2019 WL 102376, at *2 (S.D. Ga. Jan. 4, 2019) (rejecting inmate's argument regarding Taylor and noting that only Johnson v. United States, 576 U.S. 591 (2015), is retroactively applicable) (R&R), adopted, 2019 WL 316577 (S.D. Ga. Jan. 23, 2019). Moreover, Mathis, Descamps, and Taylor were decided in 2016, 2013, and 1990, respectively, all more than one year before Movant submitted his § 2255 motion. Movant also fails to show that the circumstances set forth in § 2255(f)(2) & (4) apply.
Finally, Movant fails to show that he is (1) entitled to equitable tolling, or (2) actually innocent. Therefore, the undersigned RECOMMENDS that the § 2255 motion, [Doc. 279], be DISMISSED as untimely.
"Equitable tolling is appropriate when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence." Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (per curiam).
"Actual innocence is not itself a substantive claim, but rather serves only to lift the procedural bar caused by [a movant's] failure timely to file [a] § 2255 motion." United States v. Montano, 398 F.3d 1276, 1284 (11th Cir. 2005) (per curiam). To demonstrate actual innocence, a movant must "support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). A movant "must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Id. at 327.
"[D]istrict courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition." Day v. McDonough, 547 U.S. 198, 209 (2006); see also Gay v. United States, 816 F.2d 614, 616 n.1 (11th Cir. 1987) (per curiam) ("[T]he principles developed in habeas cases also apply to § 2255 motions.") (citation omitted). "[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions." Day, 547 U.S. at 210. The opportunity to object to this Final Report and Recommendation provides Movant with a fair opportunity to present any matter that requires a different disposition of the case. See also Paez v. Sec'y, Fla. Dep't of Corr., 947 F.3d 649, 655 (11th Cir. 2020) (per curiam) (holding that district court "did not abuse its discretion when it dismissed [a] § 2254 petition [as untimely] without ordering the [respondent] to respond").
II. Certificate of Appealability (COA)
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings, "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. . . . If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." Section 2253(c)(2) states that a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." A substantial showing of the denial of a constitutional right "includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the [motion] should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
When the district court denies a [motion to vacate, correct, or set aside sentence] on procedural grounds without reaching the prisoner's underlying constitutional claim . . . a certificate of appealability should issue only when the prisoner shows both that jurists of reason would find it debatable whether the [motion] states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.Jimenez v. Quarterman, 555 U.S. 113, 118 n.3 (2009) (citing Slack, 529 U.S. at 484) (internal quotation marks omitted).
A COA should be denied because the resolution of the issues presented is not debatable. If the District Court adopts this recommendation and denies a COA, Movant is advised that he "may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule 11(a), Rules Governing Section 2255 Proceedings for the United States District Courts.
III. Conclusion
For the reasons stated above,
IT IS RECOMMENDED that (1) the § 2255 motion, [Doc. 279], be DISMISSED as untimely, (2) a COA be DENIED, and (3) civil action number 1:20-cv-4239-TCB-AJB be DISMISSED.
The Clerk is DIRECTED to terminate the referral of the motion to vacate to the undersigned.
IT IS SO RECOMMENDED AND DIRECTED, this 15th day of October, 2020.
/s/ _________
ALAN J. BAVERMAN
UNITED STATES MAGISTRATE JUDGE