Case: 13-13454   Date Filed: 05/12/2014   Page: 1 of 12


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13454
                        Non-Argument Calendar
                      ________________________

       D.C. Docket Nos. 9:13-cv-80118-KAM, 9:06-cr-80199-KAM-3

LEON SWICHKOW,


                                                          Petitioner-Appellant,


                                  versus

UNITED STATES OF AMERICA,


                                                        Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (May 12, 2014)

Before WILSON, KRAVITCH and ANDERSON, Circuit Judges.

PER CURIAM:
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      Leon Swichkow appeals the denial of his third motion for an extension of

time to file a 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence, as

well as the later dismissal of his § 2255 motion on timeliness grounds. After a

thorough review, we affirm in part, and vacate and remand in part.

                                          I.

      In 2008, a jury convicted Swichkow of multiple counts of wire fraud, mail

fraud, money laundering, and securities fraud. We affirmed Swichkow’s

convictions on direct appeal, and the Supreme Court denied his petition for a writ

of certiorari on January 9, 2012. See United States v. Wetherald, 

(11th Cir. 2011), cert. denied, 

(2012). As Swichkow

acknowledges, he had one year from the date his conviction became final, or until

January 9, 2013, to file his § 2255 motion to vacate. See 28 U.S.C. § 2255(f)(1)-

(4) (establishing a one-year limitations period under the Antitterrorism and

Effective Death Penalty Act of 1996 (AEDPA) for § 2255 motions).

      On October 23, 2012, before the expiration of the limitations period,

Swichkow sent a pro se letter to the district court, requesting a six-month extension

to file a § 2255 motion because he had been experiencing medical complications

over the past year. The district court docketed Swichkow’s letter in his criminal

case, and later denied his request. Specifically, the court explained that it lacked

the authority to consider a request to extend the limitations period before an actual


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§ 2255 motion had been filed, nor could it treat Swichkow’s letter as a substantive

habeas motion because he failed to include any allegations sufficient to support a

claim for relief under § 2255. Swichkow did not appeal this ruling. Instead, on

January 3, 2013, also within the limitations period, Swichkow moved for a second

time for an extension, again stating that multiple health issues had impeded his

ability to file a timely § 2255 motion. On January 8, 2013, Swichkow filed a third

request for additional time. These additional requests also were docketed in his

criminal case. In an order dated January 14, 2013, the district court denied

Swichkow’s second motion for an extension.

      On January 24, 2013, fifteen days after the expiration of the one-year

deadline and before the district court could rule on his third request, Swichkow

filed his § 2255 motion. In a single order dated July 10, 2013, the district court

denied Swichkow’s third motion for an extension of time and dismissed his § 2255

motion as time-barred. The court, however, granted a certificate of appealability

(COA) on the following issue:

      Does a district court have jurisdiction to grant a motion for an
      extension of time to file a petition to vacate a conviction in a criminal
      case pursuant to 28 U.S.C. § 2255 before the petition has been filed,
      or where the motion for an extension of time does not contain
      allegations sufficient to support a claim for relief under 28 U.S.C.
      § 2255.

      Swichkow then filed a single notice of appeal, noting his desire to

appeal from the district court’s “final judgment” entered on July 10, 2013.
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                                          II.

      As a preliminary matter, we must determine the scope of the issues properly

before us in the instant appeal. In his appellate brief, Swichkow’s sole argument

pertains to the district court’s dismissal of his § 2255 motion as untimely.

Specifically, he asserts that his significant health problems constituted

extraordinary circumstances that would justify equitable tolling, and that he

exercised due diligence in pursuing his § 2255 motion. The government responds

that the issue of equitable tolling is beyond the scope of the COA, and urges us to

vacate the district court’s order granting a COA as improvidently granted and

remand for re-issuance.

      The right to appeal from the denial of a § 2255 motion to vacate is governed

by the requirements found at 28 U.S.C. § 2253(c). See Slack v. McDaniel, 

, 478 (2000). Under the AEDPA, a federal prisoner must obtain a COA in

order to appeal the denial of a § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B).

      To the extent that Swichkow intended to appeal the denial of his third

motion for an extension to file a § 2255 motion, he did not need a COA to proceed

on appeal. See Woodford v. Garceau, 

, 210 (2003) (holding that “a

case does not become ‘pending’ until an actual application for habeas corpus relief


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is filed in federal court”). Swichkow’s appellate brief does not include any

arguments that relate specifically to the denial of his third motion for an extension.

Nevertheless, “[w]e are obligated to raise questions concerning our subject matter

jurisdiction sua sponte in all cases.” Boone v. Sec’y, Dep’t of Corr., 

, 1316 (11th Cir. 2004).

      In this case, although Swichkow lodged multiple motions for an extension in

the district court, he never articulated any of the claims for relief that he intended

to raise in a § 2255 motion. In its order denying Swichkow’s first motion for an

extension, the district court clearly advised Swichkow that it lacked the ability to

entertain his request absent a proposed § 2255 motion, or any indication of the

substantive claims or challenges to be included in Swichkow’s habeas action. See

Stewart v. United States, 

, 857 n.1 (11th Cir. 2011) (“Where a [pro se]

motion, nominally seeking an extension of time, contains allegations sufficient to

support a claim under section 2255, a district court is empowered, and in some

instances may be required . . . to treat that motion as a substantive motion for relief

under section 2255.”) (citation omitted). Rather than heed this advice, Swichkow

filed two additional requests for an extension, but failed to provide any details

concerning his proposed § 2255 claims. As such, the district court lacked the

ability to construe any one of Swichkow’s three requests for an extension to the




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limitations period as a substantive motion for relief under § 2255, even though all

three requests were filed within the one-year limitations period.

       We have yet to address whether a district court retains jurisdiction to rule on

a motion for an extension of time to file a § 2255 motion in instances where the

request does not contain allegations supporting a claim for habeas relief. A few of

our sister circuits, however, have considered this issue. In United States v. Leon,

(2d Cir. 2000), the Second Circuit concluded “that a federal court

lacks jurisdiction to consider the timeliness of a § 2255 petition until a petition is

actually filed.” 

Specifically, the Second Circuit reasoned that because

the defendant had yet to file a § 2255 motion, there was no case or controversy to

be heard, and any opinion that the court rendered on the timeliness issue would be

merely advisory. 

a recent decision, however, the Third Circuit rejected the holding in Leon

and concluded that a district court retains jurisdiction to rule on a defendant’s

motion for an extension of time before the actual § 2255 motion is filed. See

United States v. Thomas, 

, 169 (3d Cir. 2013). The Third Circuit

explained that “although certain aspects of a § 2255 proceeding may be considered

1
  Other circuits have adopted this reasoning. See, e.g., United States v. White, 257 F. App’x 608,
609 (4th Cir. 2007) (unpublished) (noting that the district court lacked jurisdiction to consider a
motion for an extension of time because the movant had yet to file a § 2255 motion challenging
the original judgment of conviction, and his motion seeking an extension did not raise any
potential grounds for relief); United States v. McFarland, 125 F. App’x 573, 574 (5th Cir. 2005)
(unpublished) (same); United States v. Moore, 56 F. App’x 686, 687 (6th Cir. 2003)
(unpublished) (same).
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civil, a § 2255 proceeding is a continuation of a defendant’s federal criminal case.”

motion for an extension of time can be decided prior to a formal

request for § 2255 relief because the underlying criminal proceeding “satisfies

Article III’s case or controversy requirement.” 

Third Circuit then

adopted the test applicable to the doctrine of equitable tolling, and concluded that

the defendant was not entitled to an extension of time to file a § 2255 motion

because he failed to show that he had diligently pursued his rights and that he was

beleaguered by an extraordinary circumstance. 

       We find the reasoning of the Second Circuit to be persuasive and in line with

our existing caselaw that treats a habeas proceeding as a separate civil post-

conviction action rather than a continuation of a criminal case. See, e.g., United

States v. Jordan, 

, 628 (11th Cir. 1990) (observing that “proceedings

under § 2255 are not proceedings in the original criminal prosecution; rather, the

filing of a motion pursuant to § 2255 is akin to initiating an independent civil

suit”); United States v. Dunham Concrete Prods., Inc., 

, 81 (5th Cir.

1974) (“This Circuit has long taken the view that § 2255 proceedings are, like


2
  The Seventh Circuit also has looked at whether a jurisdictional bar exists to the district court’s
consideration of a motion for an extension of time to file a 28 U.S.C. § 2254 petition before the
filing of the actual petition. See Socha v. Pollard, 

(7th Cir. 2010). The Seventh
Circuit, however, acknowledged that its case was different from Leon “in precisely the respect
that concerned the Second Circuit: the existence, or lack thereof, of a petition for a writ of habeas
corpus before the [district] court.” 

As a result, the Seventh Circuit did not have to
resolve the jurisdictional question because by the time the district court considered Socha’s
motion for an extension, an actual § 2254 petition already had been filed. 

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habeas matters, civil actions mainly standing on their own bottoms . . . .”);

Rosecrans v. United States, 

, 565-66 (5th Cir. 1967) (stating that “[a]

motion under § 2255 . . . is an independent civil proceeding, and it is not a part of

the proceedings in the criminal case in which the sentence attacked was

imposed.”).

      Here, because Swichkow had yet to file an actual § 2255 motion at the time

he sought an extension to the limitations period, there was no actual case or

controversy to be heard. Thus, the district court properly concluded that it lacked

jurisdiction to consider Swichkow’s requests for an extension of time to file a

§ 2255 motion absent a formal request for habeas relief. Accordingly, we affirm

the denial of Swichkow’s third request for an extension to file a § 2255 motion.

                                          III.

      This, however, does not end our inquiry. When a district court denies a

habeas petition on procedural grounds and does not reach the petitioner’s

underlying constitutional claim, the petitioner must show that (1) “jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling”; and (2) “jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right.” 

;

see also Bell v. Fla. Att’y Gen., 

, 1231-32 (11th Cir. 2010) (applying

Slack to a 28 U.S.C. § 2254 petition dismissed as untimely, and vacating district


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court’s order granting a COA on the issue of equitable tolling as improvidently

granted). Thus, where a § 2255 motion is denied on procedural grounds,

determining whether a COA should issue “has two components, one directed at the

underlying constitutional claims and one directed at the district court’s procedural

holding.” 

-85.

      As discussed above, the district court issued a COA limited to the denial of

Swichkow’s third motion for an extension of time to file a § 2255 motion. See

McKay v. United States, 

, 1195 (11th Cir. 2011) (ordinarily, “the

scope of our review of an unsuccessful § 2255 motion is limited to the issues

enumerated in the COA.”). The district court, however, failed to specify whether

jurists of reason would find it debatable that Swichkow’s underlying § 2255

motion states a valid claim of the denial of a constitutional right. Moreover,

Swichkow has at least made an arguable showing that reasonable jurists would find

it debatable whether the district court was correct in its procedural ruling on

timeliness.

      After Swichkow filed his § 2255 motion on January 24, 2013, fifteen days

after the expiration of the one-year limitations period, the district court ordered

Swichkow to respond to the timeliness issue. On February 27, 2013, Swichkow

responded that he had filed multiple motions to extend the limitations period based

on his health issues. Swichkow also attached a copy of a form addressed to the


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Bureau of Prisons (BOP), dated February 15, 2013, requesting a copy of his

medical records for the past 60 days. In a response dated February 20, 2013, a

BOP staff member told Swichkow “[y]our name has been placed on the waiting

list.”

         On April 25, 2013, the magistrate judge issued a report recommending that

Swichkow’s § 2255 motion be dismissed as untimely. Additionally, Swichkow

failed to demonstrate that his medical issues were sufficiently debilitating to

constitute extraordinary circumstances that would justify equitable tolling, or that

he exercised due diligence in pursuing § 2255 relief during the limitations period.

The magistrate judge expressly highlighted that Swichkow had failed to provide

any evidence to show how his health issues had impeded his ability to file a timely

§ 2255 motion.

         In his objections to the magistrate judge’s report, filed on June 20, 2013,

Swichkow attached a copy of his medical records, and further explained that he

had not received a copy of the records until June 5, 2013, over a month after the

issuance of the magistrate judge’s report. On July 10, 2013, the district court

adopted and affirmed the magistrate judge’s report, after “independent de novo

review of the file, and over the objections having been filed.” The court, however,

made no mention of Swichkow’s medical records, even though this evidence was

unavailable to Swichkow prior to the issuance of the magistrate judge’s report. Cf.


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. McNeil, 

, 1292 (11th Cir. 2009) (holding that “a district

court has discretion to decline to consider a party’s argument when that argument

was not first presented to the magistrate judge.”).

      A review of Swichkow’s medical records illustrate that he was hospitalized

on at least nine different occasions between May 2012 and April 2013 for

treatment of bladder cancer, renal issues, and heart failure. Notably, in the year

leading up to the expiration of the limitations period on January 9, 2013,

Swichkow spent approximately 34 days in the hospital. There is no indication that

the district court considered whether Swichkow was entitled to equitable tolling for

this period, thereby rendering his § 2255 motion, filed fifteen days after the

expiration of the limitations period, timely. See Mazola v. United States, 294 F.

App’x 480, 482 (11th Cir. 2008) (unpublished) (affirming the grant of 42 days of

equitable tolling in a § 2255 proceeding, accounting for the days the petitioner was

hospitalized for pneumonia and tuberculosis, in addition to his chronic conditions

of seizures and asthma).

      As such, we vacate the district court’s order granting a COA, and remand

with instructions for the court to consider whether Swichkow warrants a COA to

appeal the denial of his § 2255 motion as untimely. Specifically, the court should

consider whether Swichkow’s § 2255 motion makes a “substantial showing of the

denial of a constitutional right,” in addition to whether reasonable jurists would


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find it debatable whether the district court was correct in its procedural ruling on

timeliness. 28 U.S.C. § 2253(c)(2); 

.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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