G.R. SMITH, Magistrate Judge.
Antonio Mangram, proceeding pro se, moves to vacate his guilty plea conviction for possession of cocaine with intent to distribute. Doe. 1098
Mangram pled guilty (doc. 851) and was sentenced to 92 months' imprisonment on September 5, 2013. Doc. 835. He failed to file an appeal within the fourteen days allowed by Fed. R. App. P. 4(b)(1)(A)(i). He also missed the 30-day window during which late filings may be excused for good cause. Rule 4(b)(4). Nevertheless, he filed a notice of appeal on March 3, 2014. Doc. 1005.
The Eleventh Circuit denied Mangram's motion to substitute counsel and instead directed Harrison to file a merits brief, or one pursuant to Anders v. California, 386 U.S. 738 (1967), accompanied by a motion to withdraw as Mangram's lawyer. Doc. 1046. The government, as it does here, moved to dismiss the appeal as untimely; the Eleventh Circuit granted that request and dismissed Mangram's appeal on October 9, 2014. Doc. 1056. A little more than four months later, he filed the present § 2255 motion. Doc. 1098 (filed February 26, 2015).
Mangram argues that he appealed late because Harrison disregarded his specific instructions to file a direct appeal.
Mangram's § 2255 motion is time-barred. Because he took no timely appeal, his September 5, 2013 conviction became final on September 19, 2013. See Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011) (judgment of conviction becomes final when the time for directly appealing expires); Fed. R. App. P. 4(b)(1)(A) (defendants have 14 days post-conviction to file a notice of appeal). Under 28 U.S.C. § 2255(f)(1), he had until September 19, 2014 to file his § 2255 motion, but waited until February 26, 2015.
Mangram also fails to show entitlement to equitable tolling.
To the extent Mangram argues that Harrison over-billed in order to convince Mangram he was working on an appeal and thus conceal his failure to file, that too falls short. Attorney fraud certainly can constitute an extraordinary circumstance. See, e.g., Grady v. Jones, 2014 WL 793541 at * 6 (M.D. Ala. Feb. 26, 2014) (non-lawyer holding himself out as licensed, practicing attorney and subsequently lying to defendant about pursuing state habeas claims qualified as extraordinary circumstance for equitable tolling purposes). But that's not what happened here. The documents Mangram submits to prove that Harrison over-billed date from after Mangram filed his (untimely) appeal pro se. Moreover, they show that counsel felt Mangram had no viable claims on appeal,
Nor can Mangram claim that the Eleventh Circuit's pre-dismissal actions hoodwinked him. Mangram points to correspondence from the Eleventh Circuit informing him that counsel could file a motion to reinstate his appeal (it was dismissed for lack of prosecution) as reason to believe "there was no need to file any § 2255 as the appeal would be reinstated." Doc. 1111 at 4. Such an argument rests on a foundation of legal ignorance, not a misleading directive from any court, and so cannot warrant equitable tolling. Compare Spottsville v. Terry, 476 F.3d 1241, 1245-46 (11th Cir. 2007) (petitioner entitled to equitable tolling because state habeas court instructed him to file his application for a certificate of probable cause in the wrong court), with Hill v. Jones, 242 F. App'x 633, 636-37 (11th Cir. 2007) (distinguishing Spottsville in denying relief because the petitioner simply mailed his notice of appeal from the denial of Rule 32 relief to the wrong court without having been given erroneous information by a court), cited in Butler v. Estes, 2015 WL 1883846 at * 5 (N.D. Ala. Apr.28, 2015) ("[I]n Butler's case, he alleges only that he was not told of certain legal rights, not that a court or anyone else affirmatively told him something wrong."); see also Wakefield v. R.R. Ret. Bd., 131 F.3d 967, 970 (11th Cir. 1997) (neither a litigant's pro se status nor ignorance of the law normally warrants equitable tolling).
At bottom, assuming his allegations regarding Harrison's failure to file an appeal are true, Mangram should have realized long before September 19, 2014 (the deadline to file his § 2255 motion) that no appeal was filed and at that point sought habeas relief.
Antonio Mangram's § 2255 motion therefore should be
This, moreover, is not the Court's first brush with a § 2255 movant who claims that he told his lawyer to file a direct appeal from his conviction, yet none was filed. See, e.g., Ortega v. United States, 2014 WL 3012657 at * 1 (S.D. Ga. July 2, 2014). To address these claims, and the costly evidentiary hearings they often generate, the Court created the Notice of Counsel's Post—Conviction Obligations ("Notice"), a form that is to be furnished to counsel by the Clerk at sentencing (it evidently wasn't in this case, see doc. 834). Id.That Notice reminds counsel of the general duty to "consult" with the client about an appeal by "advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes."Flores-Ortega, 528 U.S. at 478. The Notice requires that both the defendant and counsel execute the form, thus cross-memorializing their consultation and the defendant's instructions regarding an appeal.
In the future, counsel should utilize the Notice, whether or not the Clerk provides a copy, since it is available on the Court's website. See http://www.gasd.uscourts.gov/usdcForms.asp. Doing so will avoid the aforementioned evidentiary hearing that isn't necessary here only because Mangram's § 2255 motion is time-barred regardless of whether counsel upheld his consultation obligations.
Gillman v. Sec'y, Fla. Dep't of Corr., 576 F. App'x 940, 943 (11th Cir. 2014).
Doc. 1098-1 at 7.