JAMES D. WHITTEMORE, District Judge.
BEFORE THE COURT are Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Dkt. 1), the Government's Motion to Dismiss (CV Dkt. 4), and Petitioner's response in opposition (CV Dkt. 5). Upon consideration, the Government's Motion to Dismiss is
On October 3, 2003, Petitioner pleaded guilty pursuant to a written plea agreement to Count One of the Indictment which charged Petitioner with conspiracy to possess with intent to distribute and to distribute fifty (50) grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) (CR Dkts. 17, 19).
Ground Two: The Court erred in sentencing Petitioner as a career offender.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), effective April 24, 1996, establishes a one-year limitation period for Section 2255 motions. See Goodman v. United States, 151 F.3d 1335, 1336 (11th Cir. 1998). Specifically, Section 2255 provides that the one-year limitation shall run from the latest of:
28 U.S.C. § 2255(f). See also Pruitt v. United States, 274 F.3d 1315, 1317 (11th Cir. 2001).
The Judgment in Petitioner's criminal case was entered on March 11, 2004 (CR Dkt. 45). Because Petitioner did not file a direct appeal, his judgment of conviction became "final" under§ 2255(f)(1) ten business days later on March 25, 2004, when the time for filing an appeal expired. See Adams v. United States, 173 F.3d 1339, 1342 (11th Cir. 1999). Petitioner therefore had one year from that date to file his Section 2255 motion, i.e., March 25, 2005. He did not file the Section 2255 motion until June 26, 2013, more than eight years after the limitation period expired.
Apparently recognizing the untimeliness of his Section 2255 motion under 2255(f)(1), Petitioner argues entitlement to a delayed start of the one-year limitation based upon newly discovered "state case law" under 28 U.S.C. § 2255(f)(4) (see CV Dkt. 1 at docket p. 21; CV Dkt. 5 at p. 8). Section 2255(f)(4) specifically addresses "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(f)(4) (emphasis added). Petitioner does not allege that he was unaware of the facts underlying both of his claims for relief before the expiration of the one-year limitation to file a motion to vacate. His discovery of state case law supporting his claims is not discovery of a "fact" for the purposes of a delayed limitation period under Section 2255(f)(4). See Madaio v. United States, 397 Fed. Appx. 568, 570 (11th Cir. 2010) (unpublished) (finding "the discovery of a new court legal opinion, as opposed to new factual information affecting the claim, does not trigger the limitations period."). Moreover, even if the case law could be considered a "fact" under Section 2255(f)(4), Petitioner has neither alleged the date on which the case law was discovered, nor the date on which the case law could have been discovered through the exercise of due diligence.
Petitioner's arguments can liberally be construed as also seeking a delayed start of the one-year limitation based upon a "government impediment" under 28 U.S.C. § 2255(f)(2), namely, that the federal institution in which Petitioner is incarcerated does not allow inmates access to materials pertaining to state law. Petitioner specifically asserts that pursuant to "the Bureau of Prisons Policy Statement§ 1315.07, it is against policy to provide inmates with State law...." (Dkt. 5 at p. 7).
Bureau of Prison's Program Statement 1315.07, Legal Activities, Inmate, section 7 subsection C paragraph 3, states:
(Dkt. 4 at p. 5).
Petitioner does not allege that he ever attempted to access state legal materials by requesting those materials from state officials. Nor does he allege that the Bureau of Prisons interfered with his efforts to obtain state legal materials. Therefore, Petitioner has failed to show that the government (either federal or state) impeded his ability to timely file his Section 2255 motion. Consequently, Petitioner cannot avail himself of the benefit of a delayed start to the one-year limitation provided by Section 2255(t)(2).
Finally, Petitioner's reply can be liberally construed as implicitly requesting a delayed start of the one-year limitation under 28 U.S.C. § 2255(t)(3) based upon rights newly recognized by the Supreme Court in Alleyne v. United States, 133 S.Ct. 2151 (2013) and Descamps v. United States, 133 S.Ct. 2276 (2013) (see CV Dkt. 5 at pp. 8-12). Nevertheless, Petitioner cannot avail himself of a delayed start under Section 2255(t)(3) because neither Alleyne nor Descamps applies retroactively to cases on collateral review. See Chester v. Warden, 2014 U.S. App. LEXIS 611, 2014 WL 104150, *4 (11th Cir. Jan. 13, 2014) ("Alleyne's rule does not apply retroactively on collateral review.") (citations omitted); United States v. Chapman, 2014 U.S. Dist. LEXIS 65907, at *10 (D. Tex. May 14, 2014) ("While no circuit court has addressed the issue, the district courts that have done so consistently hold that Descamps does not apply retroactively to cases on collateral review.") (citations omitted); Harr v. United States, 2014 U.S. Dist. LEXIS 58692, at *8 (C.D. Ill. Apr. 28, 2014) ("Descamps did not announce a new rule, but rather reaffirmed existing Supreme Court precedent while rejecting the Ninth Circuit Court of Appeal's departure from established Supreme Court caselaw."). Because Petitioner cannot avail himself of a delayed start to the one-year limitation under § 2255(t)(2), (3), or (4), his Section 2255 motion is untimely, precluding federal review absent a demonstration of equitable tolling.
Equitable tolling requires both extraordinary circumstances and due diligence. Diaz v. Secy, Dep't of Corr., 362 F.3d 698, 702 (11th Cir. 2004). To establish eligibility for equitable tolling, a petitioner must show: "`(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Equitable tolling "is an extraordinary remedy that must be applied sparingly." Holland v. Florida, 539 F.3d 1334, 1338 (11th Cir. 2008). "The burden of establishing entitlement to this extraordinary remedy plainly rests with the petitioner." Drew v. Dep't of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002).
Petitioner does not satisfy his burden of showing both that he diligently pursued his rights and some extraordinary circumstance prevented him from timely filing his Section 2255 motion. Petitioner's vague and unsupported allegation that he could not access Florida state legal materials while in federal custody does not constitute sufficiently extraordinary circumstances to warrant equitable tolling. See Drew, 297 F.3d at 1293 n.7 (Petitioner's allegations that he sent letters to the Clerk's office and pursued his case diligently was "not enough to warrant an evidentiary hearing in the absence of any specific factual proffer or evidentiary support, especially when the evidence that has been presented undermines the petitioner's claim."); Booker v. Folino, 2005 U.S. Dist. LEXIS 33750, at *11-12 (E.D. Pa. Dec. 15, 2005) ("A petitioner must offer specific evidence to show that denial of access to the courts should constitute a basis for equitable tolling of the AEDPA time limitation.") (citation omitted). Moreover, Petitioner's failure to present any evidence of an attempt to acquire Florida state legal materials while in federal custody weighs against finding that Plaintiff proceeded with due diligence. Therefore, Petitioner is not entitled to equitable tolling.
For the reasons indicated above, the alternative commencement dates provided by§ 2255(f)(2), (3), and (4) or by application of equitable tolling do not apply in Petitioner's case. Consequently, the timeliness of Petitioner's Section 2255 motion is calculated from March 25, 2004, the date that his conviction became final. See 28 U.S.C. § 2255(f)(1). Petitioner's Section 2255 motion, filed on June 26, 2013, is untimely, precluding federal review.
Petitioner contends that he is actually innocent of his career offender sentence (CV Dkt. 1 at docket pp. 21-23). Generally, actual innocence may serve to overcome the procedural bar caused by the untimely filing of a Section 2255 motion. United States v. Montano, 398 F.3d 1276, 1280 (11th Cir. 2005). Actual innocence applies when a petitioner is factually innocent of the crime for which he is incarcerated. See Bousley v. United States, 523 U.S. 614, 623 (1998).
Petitioner neither alleges nor presents evidence establishing that he is factually innocent of either the charge to which he pleaded guilty in his criminal case, or the prior state convictions that formed the basis of his career offender sentence enhancement.
Accordingly, it is
1. The Government's motion to dismiss (CV Dkt. 4) is
2. The