United States District Court, M.D. Florida, Orlando Division
GRECORY A. PRESNELL UNITED STATES DISTRICT JUDGE
cause is before the Court on the Order (Doc. 26) entered by
the Eleventh Circuit Court of Appeals on October 20,
2017. Petitioner initiated this case by filing a
Motion to Vacate, Set Aside, or Correct Sentence in March
2015 (“March 2015 Motion to Vacate, ” Doc. 1)
pursuant to 28 U.S.C. § 2255. The March 2015 Motion to
Vacate was filed with the Court on March 26, 2015, but was
deemed filed on March 19, 2015, under the mailbox rule. The
Court entered an Order on December 15, 2015, dismissing the
case as untimely. (Doc. 7). Petitioner appealed, and the
Eleventh Circuit Court of Appeals (“Eleventh
Circuit”) entered an Order vacating the order of
dismissal and remanding the case to this Court “to
accept new evidence and conduct further proceedings as to the
timeliness of [Petitioner's] § 2255 motion.”
(Doc. 26 at 2).
Court then entered an Order (Doc. 28) requiring the parties
to file (a) documents or other evidence related to the
timeliness of the March 2015 Motion to Vacate, and (b) a
memorandum of law discussing the timeliness of the March 2015
Motion to Vacate in light of the additional evidence.
Petitioner filed a Memorandum of Law In Support of Timeliness
of Motion to Vacate (Doc. 29), a Supplemental Memorandum of
Law In Support of Petitioner's Motion to Vacate (Doc.
30), and an Affidavit (Doc. 31). The Government filed a
Memorandum of Law In Opposition to Petitioner's
Memorandum of Law In Support of Timeliness of Motion to
Vacate (Doc. 33).
procedural background of this case is set forth in the
Court's Order of December 15, 2015 (Doc. 7).
present case, the Judgment of Conviction was entered by the
Court on January 28, 2014. Because no appeal was filed, the
Judgment of Conviction became final fourteen days after its
entry by the Court. Thus, Petitioner's conviction became
final on February 11, 2014, and Petitioner had until February
11, 2015, to file a section 2255 motion. As a result, the
Court found that the Motion to Vacate was untimely because it
was filed over a month later, in March.
to Petitioner, he prepared a draft Motion to Vacate in
“late December, 201, ” and “instead of
filing [it], he allowed another inmate who styled himself as
a `Jail-House Lawyer' to read his Motion.” (Doc. 29
at 2). This “inmate convinced the Petitioner that
changes were necessary and that rather than file the Motion
to Vacate as prepared, he should instead file a request for
extension of time.” (Id.). As a result,
Petitioner prepared a motion for extension of time and sent
it to this Court on December 28, 2014. (Id. at 2-3).
The motion for extension of time was filed on December 29,
2014, and it was denied on January 5, 2015. (Criminal Case
6:13-cr-226-Orl-31TBS, Doc. Nos. 46, 47).
states that he “consider[ed] the changes that the
`Jail-House Lawyer' was suggesting” and that he
“decided not to let him make the changes, and instead
proceeded to file the Motion to Vacate as prepared.”
(Doc. 29 at 3). Petitioner claims that this Motion to Vacate
(hereinafter referred to as the “December 2014 Motion
to Vacate”) “was made on December 31, 2014 by
again using FPC Otisville's Legal Mail System.”
(Id. at 3, 9). However, Petitioner acknowledges that
the Court's “Docket Sheet does not reflect receipt
of this filing.” (Id. at 3-4).
Petitioner did not receive a response from the Court, he
asked his wife to inquire with the Court as to the status of
the December 2014 Motion to Vacate. (Id. at 4).
Petitioner's wife informed him that the December 2014
Motion to Vacate had not been received by the Court, and
Petitioner acknowledges that the Court did not receive the
December 2014 Motion to Vacate. (Id. at
states that, [i]n order to rectify this non-receipt, [he]
signed a copy of the original [December 2014]
Motion, and filed it with the Court.”
(Id.) (emphasis added). The Court received the March
2015 Motion to Vacate on March 26, 2015, and it was deemed
filed on March 19, 2015, under the mailbox rule. (Doc. 1).
Petitioner argues that, although the Court did not receive
the December 2014 Motion to Vacate, the Court should construe
that Motion to Vacate as having been filed on December 31,
2014, under the mailbox rule.
provided a copy of the outgoing mail log from FCI Otisville,
where Petitioner was incarcerated at the times relevant to
this discussion, and it reveals that Petitioner sent a
document to the “United States District Court Office of
the Clerk” on December 31, 2014. (Doc. 33-2 at 2). The
nature of the document is not revealed in the mail log, and
it is not in any manner identified.
defendant seeking to vacate his sentence bears the burden of
sustaining his contentions by a preponderance of the
evidence. In re Moore, 830 F.3d 1268, 1272 (11th
Cir. 2016). The Court finds that Petitioner has not
met his burden.
Petitioner mentions that the March 2015 Motion to Vacate was
a “copy” of the December 2014 Motion to Vacate.
However, in the March 2015 Motion to Vacate, Petitioner
identified two Motions to Amend Presentence Report that he
filed in criminal case number 6: 6:13-cr-226-Orl-31TBS on
January 26, 2015 (Criminal Case Doc. 48), and on February 27,
2015 (Criminal Case Doc. 52). (Doc. 1 at 2-3). Since those
motions were filed ...