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United States v. Williams

United States District Court, N.D. Florida, Tallahassee Division

April 12, 2018

UNITED STATES OF AMERICA
v.
FREDRICK BERNARD WILLIAMS Reg. No. 21106-017

          REPORT AND RECOMMENDATION

          GARY R. JONES UNITED STATES MAGISTRATE JUDGE.

         This 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.

         BACKGROUND AND ANALYSIS

         Fredrick 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 No.1.)

         Petitioner 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.

         Title 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 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 petitioner 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.

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.

         Petitioner 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)).

         Equitable 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.

         CERTIFICATE ...


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