STEVEN D. MERRYDAY, District Judge.
McClamma's unrelenting resistance to his supervised release continues through his motion to vacate under 28 U.S.C. § 2255 (Doc. 1). A June 2, 2015, order (Doc. 108) provides a summary of the history of this protracted litigation:
The order (Doc. 108) denied McClamma's motion (Doc. 105) for early termination of supervised release and denied his motion (Doc. 106) for production. His motion for reconsideration (Doc. 110) was also denied (Doc. 111). As is his wont, McClamma again moves (Doc. 113) for clarification, a motion which awaits disposition by a separate order.
In the motion to vacate addressed in this order, McClamma challenges the constitutionality and substantive reasonableness of the interpretation and application of an additional condition
McClamma claims that, shortly before his release from prison in 2009, the United States Probation Office informed him that the additional condition prohibiting contact with a minor applied to his older daughter. McClamma alleges that "[u]pon his release from the BOP [he] was verbally granted supervised contact with his daughter by U.S. Probation with the stipulation that the [first] wife be present at all times." (Doc. 1, p. 4) McClamma further alleges that "[i]n addition to U.S. Probation denying [him] unsupervised contact with his old[er] daughter, they also imposed a residential restriction not otherwise outlined as a special condition . . . in the sentencing order" that precluded McClamma from living at home with his first wife and older daughter. (Doc. 1, p. 4) (emphasis added)
In October, 2009, McClamma filed in the criminal case (Doc. 33 in 5:05-cr-46) a letter inquiring about the implementation of the additional condition prohibiting unsupervised contact with his older daughter. The letter was construed as a motion for clarification. (Doc. 34 in 5:05-cr-46) A hearing on the motion was scheduled for November 19, 2009. McClamma, through counsel, moved (Doc. 40 in 5:05-cr-46) to continue the hearing and asserted that discussion between the parties would likely result in an agreement "on certain aspects" of McClamma's motion. In December, 2009, McClamma moved (Doc. 43 in 5:05-cr-46) to cancel the clarification hearing without prejudice because discussion between the parties continued with the hope of resolution.
McClamma filed both another motion for clarification and an amended motion for clarification in November 2010 and a second amended motion for clarification in January, 2011. (Docs. 46, 47, 50 in 5:05-cr-46) At a January 25, 2011, hearing on the motion, the Assistant United States Attorney advised the court that the parties had resolved, among other things, McClamma's issue with the additional condition prohibiting unsupervised contact with his older daughter. The AUSA advised that the parties had agreed to allow McClamma's supervised contact with the older daughter in the presence of a third-party supervisor (selected by the probation officer under a "safety plan") and in compliance with the orders of the state circuit court judge in McClamma's divorce proceedings. McClamma's motion for clarification was granted regarding the joint resolution of the interpretation of the additional condition.
In the motion to vacate McClamma argues (Doc. 1, p. 5):
The gravamen of McClamma's argument is not the constitutionality of the additional condition itself but the probation officer's interpretation and application of that condition.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), effective April 24, 1996, establishes a one-year limitation for a Section 2255 motion. Specifically, Section 2255 provides that the one-year limitation shall run from the latest of:
28 U.S.C. § 2255(f). The judgment in McClamma's criminal case was entered on September 20, 2006. (Doc. 29 in 5:05-cr-46) McClamma filed no direct appeal. Consequently, under the appellate rules in effect when the judgment was entered, McClamma's conviction became final on October 4, 2006, when the ten days for filing a notice of appeal expired. Fed. R. Crim. P. 45(a)(1); Fed. R. App. P. 4(b)(1)(A)(I) (West 2007). McClamma had one year, until October 4, 2007, to timely file a Section 2255 motion challenging the additional condition imposed in the 2006 judgment. McClamma did not file his Section 2255 motion until January 27, 2012, over five years after the expiration of the one-year limitation. Consequently, to the extent that McClamma challenges the additional condition prohibiting no direct contact with minors without written approval, the motion to vacate is time-barred.
Alternatively, even if claim one is construed as alleging that the facts underlying the claim did not accrue until 2009 when McClamma began his supervised release, the claim is still untimely. 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." McClamma's claim — that the additional condition violates his right to due process by prohibiting his spending unsupervised time with his older daughter — was known to him in 2009 when he began his supervised release. McClamma does not contend otherwise. Consequently, McClamma cannot avail himself of the benefit of the delayed start of the one-year limitation under Section 2255(f)(4). See Johnson v. United States, 544 U.S. 295, 311 (2005) (refusing to apply § 2255(f)(4) when "there is every reason to believe that prompt action would have produced [the facts on which the claim for relief is based] well over a year before [the petitioner] filed his § 2255 petition").
McClamma attempts to establish the timeliness of claim one by arguing that the facts underlying the claim did not accrue until entry of the January 31, 2011, order modifying his supervision. Contrary to McClamma's assertion, rather than constituting separate or additional conditions of supervised release, the four provisions in the January 31, 2011, order (Doc. 52 in 5:05-cr-46) — the prohibition of unsupervised contact with the older daughter, the prohibition against his residing in the family home, imposition of the safety plan, and compliance with the circuit court's orders — are a modification of the original condition. While the record is clear that McClamma sought clarification of the condition, he did not challenge the legality of the condition until he filed his motion to vacate in 2012, over five years after the condition was established in the judgment and over two years after the probation officer notified him in 2009 of the interpretation of the condition. Consequently, claim one is time-barred from federal review.
In claim 2 McClamma argues that the sentence pronounced at the sentencing hearing did not place any restriction on his contact with the older daughter. McClamma alleges that the additional condition violates his right to due process because the written judgment, which includes the additional condition, does not conform to the oral pronouncement of sentence. In claim 3 McClamma argues that the additional condition violates the plea agreement and results in a denial of his right to due process because "[t]he plea agreement is silent regarding the imposition of any restriction concerning contact between [him] and his [older] daughter."
Even assuming (1) that these claims are cognizable in a Section 2255 motion to vacate and (2) that neither claim is barred by the appeal waiver in McClamma's plea agreement, both claims are untimely because they result from the imposition of the 2006 judgment. McClamma's pursuit of these claims in his 2012 motion to vacate comes over five years after the one-year limitation expired. Consequently, both claim 2 and claim 3 are time-barred.
McClamma presents no cogent argument of entitlement to equitable tolling. Notwithstanding, McClamma cannot benefit from its application. Equitable tolling is appropriate when a prisoner's motion to vacate is untimely "because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence." Johnson v. United States, 340 F.3d 1219, 1226 (11th Cir. 2003). "[E]quitable tolling applies only in truly extraordinary circumstances." Johnson, 340 F.3d at 1226. "The burden of establishing entitlement to this extraordinary remedy plainly rests with the petitioner." Drew v. Sec'y, Dep't of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002).
McClamma demonstrates no extraordinary circumstance that caused him to erroneously calculate the deadline for timely filing a Section 2255 motion to vacate. Consequently, the motion is time-barred, precluding federal review.
Accordingly, McClamma's motion to vacate (Doc. 1) is
McClamma is not entitled to a certificate of appealability ("COA"). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a COA, McClamma must show that reasonable jurists would find debatable the 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because the motion to vacate is clearly time-barred, McClamma is entitled to neither a certificate of appealability nor an appeal in forma pauperis.
Accordingly, a certificate of appealability is
