United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
R. JONES UNITED STATES MAGISTRATE JUDGE.
matter is before the court upon Petitioner Fredrick
Williams' Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody
and supporting memorandum of law. (ECF No. 360.) Rule 4(b) of
the Rules Governing Section 2255 Proceedings provides in part
that ''[i]f it plainly appears from the face of the
motion and any attached exhibits and the record of prior
proceedings that the moving party is not entitled to relief,
the judge must dismiss the motion and direct the clerk to
notify the moving party.'' After a review of the
record, the Court concludes that the motion is untimely and
that it should be summarily dismissed.
Williams was the leader of a credit card conspiracy though
which conspirators fraudulently purchased credit card numbers
and used these numbers to purchase legitimate gift cards,
which were then re-sold. (ECF No. 200.) The loss amount was
determined to be well in excess of $3, 000, 000. (ECF No.
200, PSR ¶ 28.) Williams and six others were charged
with conspiracy to defraud the United States, and knowing use
of counterfeit access devices with intent to defraud. (ECF
No. 1.) Williams alone was also charged with possession of
unauthorized access devices, possession of device-making
equipment, and unlawful possession of the identification of
another person during and in relation to another felony. (ECF
pleaded guilty as charged, and on March 29, 2012 the court
sentenced him to a total term of 259 months imprisonment.
(ECF Nos. 133-35, 226, 227.) He appealed, but later moved to
dismiss the appeal. On June 11, 2012, the Eleventh Circuit
Court of Appeals granted his voluntary motion to dismiss his
appeal with prejudice. (ECF No. 293.) The clerk received
Petitioner's motion to vacate more than five years later
on April 9, 2018. In the motion, Petitioner claims that his
plea was not knowing, voluntary or intelligent, that counsel
provided constitutionally deficient advice because counsel
misunderstood the law and advised Petitioner to plead guilty
to a charge that “did not happen, ” and that
counsel was constitutionally ineffective on appeal.
28 U.S.C. § 2255(f) imposes a one-year time limitation
on the filing of motions under this section. The one-year
period of time runs from the latest of:
(1) the date on which the judgment of conviction becomes
(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
petitioner was prevented from making a motion by such
(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.
28 U.S.C. § 2255. Williams filed his motion more than
five years after the Eleventh Circuit issued its mandate on
his appeal. Therefore, it is facially untimely. In response
to the question on the complaint form regarding the
timeliness of the motion, he claims that his motion “is
authorized by the Supreme Court in Buck v. Davis,
[137 S.Ct. 759] (2017) and Treveino v. Thaler, [569
U.S. 1911] (2013).” (ECF No. 360 at 13). Neither case
provides authority to extend the period for filing a §
2255 motion in this case, and even if it did, Petitioner
filed his motion more than one year after the Supreme
Court's February, 2017 decision in Buck.
also assets that the prohibition on a litigant raising an
ineffective assistance of counsel claim on appeal serves as
cause for his procedural default and his motion must be
considered timely. (ECF No. 360 at 10.) This position has no
basis in law. Therefore, unless Petitioner establishes his
entitlement to equitable tolling, his motion is time barred.
Jones v. United States, 304 F.3d 1035, 1038 (11th
Cir. 2002) (citing ''kins v. United States,
204 F.3d 1086, 1089 (11th Cir. 2000)).
tolling is appropriate when a ' 2255 motion is untimely
because of ''extraordinary circumstances that are
both beyond [the defendant's] control and unavoidable
even with diligence.'' Johnson v. United
States, 340 F.3d 1219, 1226 (11th Cir. 2003) (citing
Drew v. Dep't of Corr., 297 F.3d 1278, 1286
(11th Cir. 2002); Sandvik v. United States, 177 F.3d
1269, 1271 (11th Cir. 1999)). Otherwise stated, ''a
litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way.'' Holland v.
Florida, 560 U.S. 631, 649 (2010) (citation omitted);
Hutchinson v. Florida, 677 F.3d 1097, 1100 (11th
Cir. 2012). It only applies in ''truly extraordinary
circumstances.'' Johnson, 340 F.3d at 1226
(citing Jones, 304 F.3d at 1039B40; Drew,
297 F.3d at 1286). The onus is on the moving defendant to
show that he is entitled to this extraordinary relief.
Johnson, 340 F.3d at 1226, Jones, 304 F.3d
at 1040. The court will not relieve a petitioner who has sat
upon his rights. United States v. Cicero, 214 F.3d
199, 203 (D.C. Cir. 2000) (citing Coleman v.
Johnson, 184 F.3d 398, 402-03 (5th Cir. 1999)). There is
nothing in the instant motion to suggest that Petitioner is
entitled to invoke the doctrine of equitable tolling, and his
motion should be denied as untimely.