Opinion
4:18-CR-13-CDL-MSH 4:23-CV-52-CDL-MSH
09-11-2023
CLINT WALKER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is the Government's motion to dismiss Petitioner Clint Walker's motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF Nos. 41, 39). For the following reasons, it is recommended that the Government's motion be granted.
BACKGROUND
On April 10, 2018, a federal grand jury indicted Petitioner on three counts: (1) possession of methamphetamine with intent to distribute; (2) possession of a firearm by a convicted felon; and (3) possession of a firearm in furtherance of a crime of violence. Indictment 1-2, ECF No. 1. On September 5, 2018, Petitioner pleaded guilty to counts one and two of the indictment: possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii); and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Plea Agreement 3, ECF No. 20.
Judgment was entered against Petitioner on December 27, 2018, and he was sentenced to a total term of 264 months' imprisonment, consecutive to any state probation revocation sentence imposed in Muscogee County, Georgia, Superior Court case numbers SU13CR1176 and SU14CR1177; a total of five years of supervised release, and a $200 assessment. Judgment 1-6, ECF. No. 25. On the Government's motion, count three was dismissed. Id. at 1. Petitioner did not file a direct appeal.
On January 29, 2021, the Court received Petitioner's pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF. No. 31). After Respondent moved to dismiss the motion (ECF No. 33), Petitioner moved to withdraw his motion to vacate, which the Court granted (ECF Nos. 35, 36).
On March 20, 2023, the Court received Petitioner's pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF. No. 39). Respondent responded on April 11, 2023, arguing that the Court should dismiss Petitioner's motion because (1) it is untimely, and (2) Petitioner did not attempt to show that he was entitled to equitable tolling. Resp. to Mot. to Vacate 3-6, ECF No. 41. Petitioner responded to Respondent's motion to dismiss (ECF No. 47). Petitioner's motion is ripe for review.
DISCUSSION
I. AEDPA Standards
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), enacted on April 24, 1996, was created primarily to put an end to the unacceptable delay in the review of prisoners' habeas petitions by adding a one-year limitation period for the filing of habeas corpus petitions. “The purpose of AEDPA is not obscure. It was to eliminate the interminable delays in the execution of state and federal criminal sentences, and the . . . overloading of our federal criminal justice system, produced by various aspects of [the Supreme Court of the United States's] habeas corpus jurisprudence.” Hohn v. United States, 524 U.S. 236, 264-65 (1998) (Scalia, J., dissenting). In pertinent part, 28 U.S.C. § 2255(f) provides that:
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
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
II. Petitioner's Claim
Judgment was entered against Petitioner on December 27, 2018. From that date, Petitioner had fourteen days to file a notice of appeal. Petitioner did not appeal. Therefore, his conviction became final on January 10, 2019. Fed. R. App. P. 4(b)(1)(A); see Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011) (noting that, when a defendant does not appeal, their conviction becomes final when the time for seeking review expires).
Petitioner's one-year limitations period pursuant to 28 U.S.C. § 2255(f)(1) began to run on January 11, 2019, and expired on January 13, 2020. Thus, when Petitioner filed his § 2255 motion on March 10, 2023, he was over three years past the one-year limitations period established by AEDPA. This Court, therefore, lacks jurisdiction to consider the merits of Petitioner's claims unless he establishes that the limitations period should instead be calculated under § 2255(f)(3) because the right that he asserts “has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. 2255(f)(3). In his response to the motion to dismiss, Petitioner cites cases of the Supreme Court of the United States, the most recent of which is McCoy v. Louisiana, --U.S.--, 138 S.Ct. 1500 (2018). Pet. Resp. to Mot. to Dismiss 2, ECF No. 47.
Because Petitioner's one-year limitation period would have ended on a Saturday, he had through the following Monday to file an appeal. Fed. R. App. P. 26(a)(1)(C).
Although the Court did not receive Petitioner's motion until March 20, 2023, Petitioner signed the motion on March 10, 2023. Mot. to Vacate 6, ECF No. 39. “Under the prison mailbox rule, a pro se prisoner's court filing is deemed filed on the date it is delivered to prison authorities for mailing.” United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012) (internal quotation marks omitted). “Unless there is evidence to the contrary, like prison logs or other records, we assume that a prisoner's motion was delivered to prison authorities on the day he signed it.” Id.
Both the Supreme Court and the United States Court of Appeals for the Eleventh Circuit, however, have noted that the date of a decision is the date that triggers the one-year limitations period. Dodd v. United States, 545 U.S. 353, 358-59 (2005) (“Thus, if this Court decides a case recognizing a new right, a federal prisoner seeking to assert that right will have one year from this Court's decision within which to file his § 2255 motion.”); Weeks v. United States, 382 Fed.Appx. 845, 848 (11th Cir. 2010) (per curiam) (citing Dodd, 545 U.S. at 357, 360) (“For purposes of § 2255(f)(3), the one-year limitations period begins running on the date the Supreme Court decided the case which initially recognized the right being asserted.”).
Assuming without deciding that McCoy recognized a new right, McCoy was decided by the Supreme Court on May 14, 2018. McCoy, 138 S.Ct. 1500. Petitioner, thus, had until May 14, 2019 to bring his claim under 28 U.S.C. § 2255(f)(3). Petitioner did not effectively file his motion to vacate until March 10, 2023, nearly four years after which Petitioner could rely on McCoy to file his motion under § 2255(f)(3).
As a result, Petitioner's motion is untimely even if calculated under § 2255(f)(3), and this Court lacks jurisdiction to review his motion on the merits. Accordingly, it is recommended that the Government's motion be granted and Petitioner's motion to vacate be dismissed as untimely.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate of appealability may issue only if the applicant makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
If a court denies a collateral motion on the merits, this standard requires a petitioner to “demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a court denies a collateral motion on procedural grounds, this standard requires a petitioner to demonstrate that “jurists of reason would find it debatable whether the petition 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.” Id. at 478. Petitioner cannot meet either of these standards and, therefore, a certificate of appealability in this case should be denied.
CONCLUSION
Accordingly, IT IS RECOMMENDED that Respondent's motion to dismiss (ECF No. 41) be GRANTED and Petitioner's motion to vacate under 28 U.S.C. § 2255 (ECF No. 39) be DISMISSED. It is further recommended that a certificate of appealability be denied.
Pursuant to 28 U.S.C. § 636(b)(1), Petitioner may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. Any objection should be no longer than TWENTY (20) PAGES in length. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
Petitioner is hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.