White v. United States of America
MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 12/1/2014. (KAM, )
2014 Dec-01 PM 02:09
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
GARY L. WHITE,
UNITED STATES OF AMERICA,)
MEMORANDUM OF OPINION
Petitioner, Gary L. White (“White”), has filed a Motion to Vacate, Set Aside
or Correct a Sentence pursuant to 28 U.S.C. § 2255. He challenges the validity of his
2008 convictions and 2010 sentences for conspiracy and federal funds bribery. For
the following reasons, White’s § 2255 motion is due to be denied.
FACTUAL AND PROCEDURAL BACKGROUND
White was indicted by a grand jury in the United States District Court for the
Northern District of Alabama, Southern Division, on October 31, 2007, on two counts
of conspiracy to commit bribery in violation of 18 U.S.C. § 371 (Counts 1 and 10) and
nine counts of federal funds bribery in violation of 18 U.S.C. § 666(a) and (b) (Counts
2-9 and 11). All of these counts were based on allegations that White, while serving
as a Jefferson County Commissioner, accepted bribes from sewer companies that had
ongoing and prospective contracts with Jefferson County. United States District
Judge U.W. Clemon was assigned to the case. On November 2, 2007, White entered
a plea of not guilty to all counts in the indictment.
On November 20, 2007, White moved for a change of venue, asking the court
to move the trial from the Southern Division of the Northern District of Alabama to
the Western Division of the same district. White argued that potential jurors in the
Southern Division had an actual or perceived financial interest in the case and that an
unbiased jury could not be seated in the Southern Division because the venire
consisted mainly of Jefferson County residents, who would likely blame their
increased sewer rate on him. Instead of transferring the case to the Western Division,
the court, sua sponte, moved the case to the United States District Court for the
Middle District of Alabama.
A superseding indictment, adding a twelfth count for criminal forfeiture under
18 U.S.C. § 982(a)(1)(C) and 28 U.S.C. § 2461(c), was issued on December 27, 2007.
White again entered a not guilty plea on January 4, 2008.
White’s criminal trial began on January 8, 2008, in Montgomery, before Judge
Clemon. After the conclusion of the Government’s case, White moved for a
judgment of acquittal on Counts 1-11. The court granted the motion as to Counts 10
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and 11 and dismissed those counts on January 10, 2008. White was found guilty of
Counts 1-9 on January 10, 2008.
Shortly after the verdict, White moved to vacate the judgment on the ground
that venue was improper, referencing his right to be tried within the district where the
crime was alleged to have been committed. In an order filed February 8, 2008, the
court granted White’s motion to vacate the judgment, ordered a new trial, and
reassigned the case to the undersigned judge in the Western Division of the United
States District Court for the Northern District of Alabama.
On February 12, 2008, the Government filed an interlocutory appeal with the
Eleventh Circuit Court of Appeals as to Judge Clemon’s order vacating the judgment
and granting a new trial in a different division. The Eleventh Circuit issued an order
staying the appeal on October 17, 2008, after White’s counsel withdrew from
representation and did not file a brief. On December 21, 2009, the Eleventh Circuit
reversed the district court’s order vacating White’s conviction and transferring the
case to a different district, and remanded the case to the district court for sentencing.
United States v. White, 590 F.3d 1210, 1213-15 (11th Cir. 2009).
On July 29, 2010, this Court sentenced White to 60 months imprisonment on
Count 1 and 120 months imprisonment on each of Counts 2-9, to be served
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concurrently, for a total sentence of 120 months imprisonment. White was also
sentenced to 24 months supervised release; ordered to pay restitution in the amount
of $22,000; and ordered forfeiture of the same amount. Judgment was entered by this
Court on August 3, 2010.
White appealed his conviction and sentence on August 5, 2010. The Eleventh
Circuit affirmed both on December 29, 2011. United States v. White, 663 F.3d 1207
(11th Cir. 2011). White’s petition for certiorari was denied by the United States
Supreme Court on November 26, 2012. White v. United States, 133 S. Ct. 646 (2012).
On November 30, 2012, White filed two pro se motions in his criminal case, one
styled “motion for recusal” and one styled “motion to extend time.” (Docs. 151 and
152 in 7:07-cr-00448-LSC-HGD-1.) In his motion for recusal, White averred that he
intended to “assert and expose wrongful and improper actions by this Court” and
“impropriety of the Court’s motives, interests, actions and every aspect of the
Court’s handling of [his] case.” He alleged generally that he would be filing civil
actions in which the undersigned is expected to be a primary named defendant, after
which recusal would be necessary. However, White had not filed any such action at
that time. In his motion to extend time, White asked that the Court extend the time
for him to raise “any and all issues, motions, pleadings and other actions,” including
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motions pursuant to 28 U.S.C. § 2241 or § 2255. He stated that he intended to file a
petition for rehearing from the Supreme Court’s recent denial of his petition for
certiorari, and he asked that he be given one year from the time the Supreme Court
issues its final ruling on his petition for rehearing. This Court denied those motions
on December 6, 2012. (Doc. 153 in 7:07-cr-00448-LSC-HGD-1.) In the order, this
Court advised White that by statute, he has one year following the date on which his
judgment of conviction becomes final in which to file a motion for collateral relief
pursuant to 28 U.S.C. § 2255, citing 28 U.S.C. § 2255(f).
Nearly a year later, on November 27, 2013, White filed another pro se “motion
to extend time” seeking an extension of 180 days “for raising any and all issues,
motions, pleadings and other actions available to and/or by Gary White, including but
not limited to 2255 and 2241 actions.” (Doc. 154 in 7:07-cr-00448-LSC-HGD-1.) In
the motion, White acknowledged that his right to move for collateral relief would
expire “soon,” but that he has been prevented from preparing his collateral attack due
to abuse by prison personnel, transfers among prisons, and denial of access to legal
materials. The Government responded in opposition to the motion on December 3,
2013. (Doc. 155 in 7:07-cr-00448-LSC-HGD-1.) This Court denied the motion for
additional time on December 10, 2013, advising White that the court could not extend
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the time for a defendant to file a post-conviction challenge to a proceeding but that if
White filed a § 2255 motion, he could argue therein that equitable tolling applied
based on the allegations set out in his motion. (Doc. 156 in 7:07-cr-00448-LSC-HGD1.)
White filed the instant “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside
and/or Correct Sentence and for Other Post-Conviction Relief” on June 26, 2014.
(Doc. 155 in 7:07-cr-00448-LSC-HGD-1; Doc. 1 in 2:14-cv-8039-LSC.) White asserts
several grounds for relief in a conclusory fashion, as discussed infra, and again seeks
additional time “for leave to file after the statutory filing deadline, for broad leave to
amend all his pleadings, and to stay proceedings to permit him to prepare and file his
motion for disqualification of the judge assigned to his case.” The Government
responded to the motion, arguing that it should be dismissed as untimely or in the
alternative because it fails to state a claim upon which relief may be granted. The
Court issued an order to White, notifying him that the Court deemed his motion ripe
for summary disposition and of his right to file affidavits or other materials to show
why the motion should not be summarily denied on the basis of the response by the
Government. The only filing White has submitted in response to the Court’s order
is another motion for additional time in which to respond, again citing deprivation of
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access to legal materials as justifying his failure to “prepare any pleadings
whatsoever.” (Doc. 5.) The Court denied that motion on August 13, 2014. (Doc. 6.)
White’s § 2255 Motion is Due to be Dismissed as Untimely Filed
Rule 4 of the Rules Governing Section 2255 Proceedings for the United States
District Courts allows a court to dismiss summarily a habeas corpus petition when it
plainly appears from the face of the petition and the prior proceedings in the case that
the petitioner is not entitled to the relief he seeks. There is a one-year statute of
limitations applicable to White’s claims under 28 U.S.C. § 2255. That statute states,
in pertinent part:
A 1-year period of limitation shall apply to a motion under this section.
The limitations period shall run 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 movant 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
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(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
28 U.S.C. § 2255(f).
“Pro se litigants, like all others, are deemed to know of the one-year statute of
limitations” applicable to § 2255 motions. See Outler v. United States, 485 F.3d 1273,
1283 n.4 (11th Cir. 2007).1 Yet, White did not file his § 2255 motion until over a year
had already elapsed since his conviction became final. If a criminal defendant loses
his appeal and files a petition for writ of certiorari, his conviction becomes final, and
the one-year period begins, on the date when the Supreme Court denies the petition
or issues a ruling on the merits. Washington v. United States, 243 F.3d 1299, 1300-01
(11th Cir. 2001). White’s petition for writ of certiorari was denied on November 26,
2012. Thus, under § 2255(f)(1), he had until November 26, 2013, to file his motion
for collateral relief.2 White filed his motion on June 26, 2014, six months after the
White was certainly aware of § 2255(f)’s one-year statute of limitations, as this Court
advised him of it in an order issued on December 6, 2012, when the limitations period was still
running and had not yet expired. See Doc. 153 in 7:07-cr-00448-LSC-HGD-1. Additionally,
White indicated in a pleading filed on November 27, 2013, that the statute of limitations would
expire “soon.” See Doc. 154 in 7:07-cr-00448-LSC-HGD-1. In fact, it expired that day.
The United States Supreme Court’s docket sheet on White’s direct appeal does not
indicate that White ever filed a petition for a rehearing from the Supreme Court’s denial of his
petition for writ of certiorari. See generally Gary White, Petitioner v. United States, United States
Supreme Court, No. 12-5119. In any event, the filing of any such petition would not have started
the running of § 2255(f)(1)’s one-year statute of limitations any later. See Drury v. United States,
507 F.3d 1295, 1297 (11th Cir. 2007) (holding that the one-year statute of limitations for filing a
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limitations period ended. This was too late.3 Thus, unless White can establish that
he is entitled to equitable tolling of the limitation period, his § 2255 motion is due to
be summarily denied.
White recognizes that his petition is untimely, but requests that this Court
“extend time, for leave to file after the statutory filing deadline, for broad leave to
amend all his pleadings, and to stay proceedings to permit him to prepare and file his
motion for disqualification of the judge assigned to this case.” (Doc. 1, at 2.) “[I]n
the proper case § 2255’s period of limitations may be equitably tolled.” Sandvik v.
United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (per curiam). But, equitable tolling
is appropriate only “when a movant untimely files because of extraordinary
circumstances that are both beyond his control and unavoidable even with diligence.”
Id. (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)); see also
Williams v. United States, 491 F.3d 1282, 1284 (11th Cir. 2007) (per curiam) (holding
that “equitable tolling is available only if the petitioner establishes (1) extraordinary
petition under § 2255 begins to run when the Supreme Court denies the petition for certiorari
and not subsequently when it denies the petition for rehearing on denial of certiorari.)
White’s two separate motions to extend time to file a § 2255 motion cannot be
construed as § 2255 motions themselves because they did not contain allegations supporting a
claim for relief. At most, they alleged factual circumstances that White would later argue
justified equitable tolling of the statute.
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circumstances, and (2) due diligence”). It is an “extraordinary remedy which is
sparingly applied.” Williams, 491 U.S. at 1284-85. “To establish diligence, then, the
petitioner must present evidence showing reasonable efforts to timely file his action.”
Dodd v. United States, 365 F.3d 1273, 1282 (11th Cir. 2004). And, “[t]he burden of
establishing entitlement to this extraordinary remedy rests with the petitioner.” Id.
White has failed to meet his burden.
In arguing why the limitations period does not bar his motion, White points to
“being repeatedly moved from prison to prison” and “separated from his legal
materials,” resulting in “limited” and “sporadic” access to these materials. (Doc. 1
at 2, 4.) However, the Eleventh Circuit has rejected claims that transfers among
prisons, and denial of access to a petitioner’s legal papers and the law library,
constitute extraordinary circumstances. Dodd, 365 F.3d at 1282-83 (rejecting equitable
tolling argument based on transfer to a different facility and detention there for over
10 months without access to his legal papers); see also United States v. Akins, 204 F.3d
1086, 1089-90 (11th Cir. 2000) (rejecting equitable tolling argument based on lack of
access to legal materials because of several months of lockdown and prison officials
misplacing his legal papers for a period of time).
White has not demonstrated extraordinary circumstances nor has he presented
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evidence of due diligence. Indeed, the fact that White was able to file several
pleadings with this Court while incarcerated and while the one-year statute of
limitations was running indicates that White could have, but did not, use reasonable
efforts to file his § 2255 motion within the designated time frame. See Helton v.
Secretary for the Dep’t of Corrections, 259 F.3d 1310, 1312 (11th Cir. 2001) (denying
equitable tolling in light of petitioner’s failure to present necessary evidence of his
own due diligence). In essence, White offers no evidence to support his implicit claim
for equitable tolling. His motion is untimely and thus due to be dismissed.
Alternatively, White’s § 2255 Motion is Due to be Dismissed as it
Fails to State a Claim Upon Which Relief May be Granted
Without any specificity, White asserts the following grounds for relief in his §
Ineffective assistance of counsel, including but not limited to
undisclosed conflicts of interest, abandonment of White’s case by
retained counsel and attempted extortion of White by appointed
Prosecutorial misconduct, including but not limited to suborning
and proffering perjured testimony;
Judicial error, misconduct and conflict of interest;
Insufficiency of evidence of conviction;
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Grossly disproportionate sentence;
Recent controlling ruling(s) that forfeiture may not be ordered by
the judge absent jury findings;
Recent controlling ruling(s) that enhancements may not be
ordered by the judge absent jury findings . . . .
(Doc. 1 at 1.) White also adds a catch-all provision: “Any and all such other grounds
that exist or may exist.” (Doc. 1 at 2.) These are White’s claims in their entirety
(quoted exactly as he presents them). White does not detail his contentions or provide
any underlying bases to support them; he provides no accompanying argument or
factual assertions. Instead, after listing the non-specific claims, White simply states
that “[t]he basic substance of White’s [claims] for relief are detailed in the attached
pleadings and exhibits.” (Doc. 1 at 2.) The attached pleadings and exhibits consist of
over 200 pages of documents, which appear to largely consist of White’s petition for
certiorari before the Supreme Court and various other pleadings and exhibits that he
filed in that forum. White does not indicate what pleading relates to what claim, and
the pleadings authored by White in his criminal case are primarily self-serving
statements and unsupported conclusory allegations.
Moreover, with the exception of his ineffective assistance of counsel claim
(ground 1), all of White’s claims are procedurally barred as all of them are such as
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would normally be the subject of a direct appeal. As explained by the Eleventh Circuit,
relief under 28 U.S.C. § 2255 will not be granted on those claims that could have been
raised by the petitioner during his direct appeal, as follows:
Courts have long and consistently affirmed that a collateral challenge,
such as a § 2255 motion, may not be a surrogate for a direct appeal. See,
e.g., United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71
L.Ed.2d 816 (1982) (collecting cases).FN13 Because collateral review is
not a substitute for a direct appeal, the general rules have developed that:
(1) a defendant must assert all available claims on direct appeal, Mills v.
United States, 36 F.3d 1052, 1055 (11th Cir.1994); FN14 and (2) "[r]elief
under 28 U.S.C. § 2255 'is reserved for transgressions of constitutional
rights and for that narrow compass of other injury that could not have
been raised in direct appeal and would, if condoned, result in a complete
miscarriage of justice.' " Richards v. United States, 837 F.2d 965, 966
(11th Cir. 1988) (quoting United States v. Capua, 656 F.2d 1033, 1037
(5th Cir. Unit A Sep.1981)). Accordingly, a non-constitutional error that
may justify reversal on direct appeal does not generally support a
collateral attack on a final judgment, Frady, 456 U.S. at 165, 102 S.Ct. at
1593, unless the error (1) could not have been raised on direct appeal and
(2) would, if condoned, result in a complete miscarriage of justice. Stone
v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 3044 n. 10, 49 L.Ed.2d
FN13. In Frady, the Supreme Court explained:
"When Congress enacted § 2255 in 1948, it
simplified the procedure for making a
collateral attack on a final judgment entered in
a federal criminal case, but it did not purport
to modify the basic distinction between direct
review and collateral review. It has, of course,
long been settled that an error that may justify
reversal on direct appeal will not necessarily
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support a collateral attack on a final judgment.
The reasons for narrowly limiting the grounds
for collateral attack on final judgments are
well known and basic to our adversary system
456 U.S. at 165, 102 S.Ct. at 1593 (quoting United States v.
Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2239, 60
L.Ed.2d 805 (1979) (footnotes omitted)).
FN14. "A ground of error is usually 'available' on direct
appeal when its merits can be reviewed without further
factual development." Mills, 36 F.3d at 1055.
Lynn v. United States, 365 F.3d 1225, 1232-33 (11th Cir. 2004). Accordingly, even if
the errors White alleges were specific enough and sufficiently supported by facts such
that this Court could address their merits, and even if the errors were plain and would
have warranted reversal on direct appeal, they are not properly raised in this collateral
attack on White’s judgment and sentence. Habeas relief is not warranted on these
With regard to White’s ineffective assistance of counsel claim, other than
conclusory allegations, White provides no basis for the claim. It is well-settled that a
petitioner under § 2255 is not entitled to relief or even additional proceedings when
his claims are “‘merely conclusory allegations unsupported by specifics.’” Brown v.
United States, 720 F.3d 1316, 1335 n.3 (11th Cir. 2013) (quoting Tejada v. Dugger, 941
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F.2d 1551, 1559 (11th Cir. 1991)); see also United States v. Jones, 614 F.2d 80, 82 (5th
Cir. 1980) (conclusory allegation unsupported by any specific facts insufficient to state
a constitutional claim). In other words, “[w]hen claims for habeas relief are based on
unsupported generalizations, a hearing is not required.” Scott v. United States, 598
F.2d 392, 393 (5th Cir. 1979).4
For these reasons, even if it were timely filed, White’s motion does not state a
claim upon which relief may be granted, and is thus due to be dismissed.
For the foregoing reasons, White’s § 2255 motion will be denied and this action
dismissed with prejudice.
This Court may issue a certificate of appealability “only if the applicant has a
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
2253(c)(2). To make such a showing, a “petitioner must demonstrate that reasonable
jurist would find the district court’s assessment of the constitutional claims debatable
and wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that “the issues
presented were adequate to deserve encouragement to proceed further.” Miller-El v.
Bonner v. City of Pritchard, 666 F.2d 1206, 1209 (11th Cir.1987) (en banc), adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
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Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted). This Court finds
White’s claims do not satisfy either standard.
A separate order will be entered.
Done this 1st day of December 2014.
L. Scott Coogler
United States District Judge
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