U.S. v. Gilbert

Full title: UNITED STATES OF AMERICA v. SAMMIE RAY GILBERT, Defendant

Court: United States District Court, N.D. Florida, Panama City Division

Date published: Aug 24, 2007

CASE NO. 5:98cr38-SPM/AK (N.D. Fla. Aug. 24, 2007)

Opinion

CASE NO. 5:98cr38-SPM/AK.

August 24, 2007

ORDER

STEPHAN MICKLE, District Judge

THIS CAUSE comes before the Court on the magistrate judge's report and recommendation dated June 21, 2007 (doc. 116). Defendant has been furnished a copy and filed objections (doc. 122) pursuant to Title 28, United States Code, Section 636(b)(1). Having considered the report and recommendation and objections, I have determined that the report and recommendation should be adopted.

Defendant's § 2255 motion seeks permission to file an untimely direct appeal based upon his lawyer's failure to file a notice of appeal. The problem is that the § 2255 motion is itself untimely. Defendant was sentenced on May 11, 1999. Doc. 70. With the exercise of due diligence, Defendant should have known well before November 17, 1999¹, that his lawyer had not filed a notice of appeal on his behalf.

1 This date is one year before Defendant filed his "Motion for Assignment of Counsel" (doc. 85) and has been chosen, for the sake of argument, based on Defendant's position that his motion should have been recharacterized as a § 2255 motion.

Instead of pursuing a direct appeal, Defendant's statements show that he counted on obtaining a Rule 35 sentencing reduction. Defendant became interested in an appeal only upon learning that the Government was not filing a Rule 35 motion on his behalf. See Doc. 122 at 2-7. The refusal of the Government to file a Rule 35 motion on Defendant's behalf does not excuse Defendant's lack of due diligence in pursuing his direct appeal.

The time for filing a § 2255 motion can be adjusted by equitable tolling, which is an extraordinary remedy that is available in limited circumstances. Jones v. United States, 304 F.3d 1035, 1038-39 (11th Cir. 2002). Defendant's pro se status and custody in different facilities are not circumstances that warrant equitable tolling. See Akins v. United States, 204 F.3d 1086, 1090-91 (11th Cir. 2000).

Accordingly, it is hereby ORDERED as follows:

1. The magistrate judge's report and recommendation (doc. 116) is adopted and incorporated by reference in this order.

2. The motion to vacate, set aside, or correct sentence (doc. 97) is denied as untimely.

DONE AND ORDERED.