Ray v. U.S.A.

Filing 10

ORDER granting 8 motion to dismiss; denying 9 motion to amend/correct; denying 1 Motion to vacate/set aside/correct sentence (2255). Signed by Judge James D. Whittemore on 12/6/2013. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DENNIS E. RAY,
Petitioner,
vs.

CASE NO. 8:12-cv-2429T-27TGW
CRIM. CASE NO. 8:07-cr-497-T-27TGW

UNITED STATES OF AMERICA,
Respondent.
________________________________________/
ORDER
BEFORE THE COURT is 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. 8), and
Petitioner’s Motion to Amend (CV Dkt. 9). Upon consideration, both Petitioner’s motion to vacate
and his motion to amend are DENIED and the Government’s Motion to Dismiss is GRANTED.
Procedural Background
On March 12, 2008, Petitioner pleaded guilty pursuant to a written plea agreement to Counts
One and Three of an indictment which charged Petitioner with conspiracy to distribute and to
possess with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(A)(ii) (Count One) and carrying and possessing a firearm in furtherance of a
drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), (2).1 (CR Dkts. 82, 200). On July 18,
2008, Petitioner was sentenced as a career offender under U.S.S.G. § 4B1.1 to two hundred
ninety-four (294) months imprisonment on Count One and to a consecutive sentence of sixty (60)

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The court granted the Government’s motion to dismiss Count Two. (CR Dkts. 152, 153).

months imprisonment on Count Three to be followed by concurrent terms of five years of supervised
release for both Counts One and Three. (CR Dkt. 153).
Petitioner appealed. On September 28, 2009, the United States Court of Appeals for the
Eleventh Circuit affirmed Petitioner’s convictions but vacated Petitioner’s designation as a career
offender and remanded for resentencing. (CR Dkt. 209). On November 10, 2009, Petitioner was
resentenced to one hundred forty one months imprisonment on Count One and to a consecutive term
of sixty months imprisonment on Count Three to be followed by concurrent terms of five years of
supervised release for both Counts One and Three. (CR Dkt. 212). Petitioner appealed his
resentencing. On July 2, 2010, the Eleventh Circuit dismissed the appeal based upon the valid plea
waiver in Petitioner’s plea agreement and the “law of the case” doctrine. (CR Dkt. 228).
Petitioner signed his Section 2255 motion on October 26, 2012. (CR Dkt. 231; CV Dkt. 1).
The Respondent challenges the motion’s timeliness and moves to dismiss the motion as time-barred.
Petitioner presents four grounds for relief:
Ground One:

Petitioner did not knowingly and voluntarily waive his right to appeal;

Ground Two:

The Government breached the plea agreement;

Ground Three: Trial counsel rendered ineffective assistance by not objecting to
the amount of cocaine cited in the pre-sentence investigation
report, rendering Petitioner’s plea involuntary; and
Ground Four:

Trial counsel rendered ineffective assistance by not objecting to
the district court’s miscalculation of the sentencing guidelines
range
DISCUSSION

I.

Timeliness
The Antiterrorism and Effective Death Penalty Act (“AEDPA”), effective April 24, 1996,
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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:
(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

(4)

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). See also Pruitt v. United States, 274 F.3d 1315, 1317 (11th Cir. 2001). “[F]or
federal criminal defendants who do not file a petition for certiorari with [the United States Supreme
Court] on direct review, § 2255’s one-year limitation period starts to run when the time for seeking
such review expires.” Clay v. United States, 537 U.S. 522, 532 (2003). See also Kaufmann v.
United States, 282 F.3d 1336, 1339 (11th Cir. 2002) (holding that a judgment becomes “final” when
the time for filing a petition for writ of certiorari expires).
Following the Eleventh Circuit’s July 2, 2010, dismissal of Petitioner’s appeal of his
resentencing, Petitioner did not file a petition for a writ of certiorari in the United States Supreme
Court. As a consequence, his conviction became final on September 30, 2010, when the ninety-day
period for seeking certiorari review expired.2 Clay v. United States, 537 U.S. at 532; Kaufmann v.
United States, 282 F.3d at 1339. Petitioner had one year from that date, until September 30, 2011,

2

“The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought
to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice).” Sup. Ct. R. 13.3.

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to timely file a Section 2255 motion. Petitioner did not file his Section 2255 motion until October
26, 2012,3 more than one year after the expiration of the one-year limitation. Consequently,
Petitioner’s motion is time-barred under Section 2255(f)(1).
Apparently recognizing the untimeliness of his motion to vacate, Petitioner argues
entitlement to a delayed start of the one-year limitation based upon both a “government impediment”
under 28 U.S.C. § 2255(f)(2) and a “newly discovered fact” under 28 U.S.C. § 2255(f)(4). First,
Petitioner asserts that his motion is timely under Section 2255(f)(2) because both the Government
and his appellate counsel prevented him from filing his motion by not sending him “a copy of the
[Eleventh Circuit]’s order denying his appeal or a copy of the Government’s brief until April 12,
2012.” (CV Dkt. 2, p. 2). Petitioner attaches to his motion a copy of a letter dated April 12, 2012,
from a legal assistant with his appellate counsel’s law office that states in relevant part:
Please find enclosed the copy of the Response to the 2nd brief filed by the
Government. I do apologize[.] [T]he Government was to send you a copy and we
made the assumption that they followed through on their end.
(CV Dkt. 2, Ex. A). The letter does not include an appellate case number or any other indication of
what “2nd brief” the letter refers to. The letter may refer to the Government’s motion to dismiss
filed with the second appeal following Petitioner’s resentencing.4
To the extent Petitioner argues entitlement to the application of Section 2255(f)(2) based
upon appellate counsel’s alleged failure to apprise Petitioner of the outcome of his second direct

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For timeliness purposes, the court considers Petitioner’s motion filed on the day that he signed his motion.
See Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (ruling that a pro se prisoner’s Section 2255
motion is deemed filed on the date it is delivered to prison authorities for mailing which, absent contrary evidence, is
presumed to be the date the prisoner signed the motion).
4

The docket does not indicate that the Government filed more than one brief or motion to dismiss in
Petitioner’s second appeal. See online docket for the United States Court of Appeals for the Eleventh Circuit, Case no.
09-15805 at: http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX?DKTNO=200915805.

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appeal, Petitioner cannot obtain relief because Section 2255(f)(2) specifically applies to
governmental action, not the action or inaction of a petitioner’s counsel. See, e.g., Gordon v. Sec’y,
Dep’t of Corr., 479 F.3d 1299, 1301 (11th Cir. 2007) (“[T]he failure of . . . court-appointed counsel
to file more promptly [for state post-conviction relief does not qualify as] an impediment to filing
created by State action within the meaning of § 2244(d)(1)(B) [a similar limitation provision
applicable to 28 U.S.C. § 2254 habeas petitions.”]).5 To the extent Petitioner argues (1) entitlement
to application of Section 2255(f)(2) due to the Government not sending him a copy of the dismissal
of his second direct appeal and (2) that this inaction amounts to an impediment created by
governmental action, he cannot obtain relief. “A movant must show that the alleged impediment
‘caused an actual harm, or in other words, unconstitutionally prevented him from exercising that
fundamental right of access to the courts in order to attack his sentence or to challenge the conditions
of his confinement.’” Williams v. United States, 360 Fed. App’x 34, 36 (11th Cir. 2010) (quoting
Akins v. United States, 204 F.3d 1086, 1090 (11th Cir. 2000)) (emphasis added). Thus, Petitioner
must show that the impediment “actually prevented him from timely filing” his motion. See Krause
v. Thaler, 637 F.3d 558, 561 (5th Cir. 2011) (emphasis in original).
Petitioner does not cite any legal authority establishing that the Government had a
constitutional obligation to apprise Petitioner of the outcome of his appeal before Petitioner could
file a motion to vacate. Because he does not establish either that the Government’s inaction amounts
to an “impediment” as contemplated by Section 2255(f)(2) or that the Government’s inaction
unconstitutionally prevented him from filing his motion to vacate, Petitioner is not entitled to the

5

See Gay v. United States, 816 F.2d 614, 616, n.1 (11th Cir. 1987) (recognizing that the principles developed
in Section 2254 habeas cases also apply to Section 2255 motions) (citing Sanders v. United States, 373 U.S. 1, 18
(1963)).

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delayed start of the limitation under 28 U.S.C. § 2255(f)(2). Williams, 360 Fed. App’x at 36.
Petitioner alternatively argues that his motion is timely under Section 2255(f)(4) based upon
his receipt of the April 12, 2012, letter because that is the date that he learned the outcome of his
second direct appeal.6 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). All four of Petitioner’s claims for relief were
readily available to him by the conclusion of his sentencing hearing. Petitioner does not allege that
he was unaware of the facts underlying each of his claims for relief before the expiration of the
one-year limitation to file a motion to vacate. He likewise does not allege that he became aware of
the factual basis for any of his claims only after he learned the outcome of his second appeal.
Consequently, Petitioner cannot avail himself of the benefit of a delayed start to the one-year
limitation provided by Section 2255(f)(4). See Johnson v. United States, 544 U.S. 295, 311 (2005)
(refusing to apply § 2255(f)(4) where “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”).
Even if the date (April 12, 2012) that Petitioner allegedly learned the outcome of his appeal
was the applicable date for triggering Section 2255(f)(4) and presuming that the delay in learning
the outcome of the appeal is a “claim” unto itself, Petitioner cannot obtain relief. The relevant date
under § 2255(f)(4) is the date on which the facts supporting a claim could have been discovered
through the exercise of due diligence, not the date of actual knowledge. See Aron v. United States,

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Petitioner does not state in his motion or memorandum when he actually received the letter, though it must
have been sometime after April 12, 2012.

6

291 F.3d 708, 711 (11th Cir. 2002). Petitioner does not allege that he made any effort to learn the
outcome of his second direct appeal between the date of the dismissal (July 2, 2010), and the date
of the letter from appellate counsel’s office (April 12, 2012). See Johnson, 544 U.S. at 310-11
(stating that a petitioner must act with “reasonable promptness” and that Johnson did not exercise
diligence where he “delayed unreasonably”). Petitioner was capable (and does not contend
otherwise) of inquiring with either the Clerk of Court for this district court or with the clerk for the
Eleventh Circuit to determine the status of his appeal. Thus, through the exercise of due diligence,
Petitioner could have discovered the result of his appeal and filed his motion to vacate before the
Section 2255 limitation expired. Because Petitioner cannot avail himself of a delayed start to the
limitation under § 2255(f)(4), his motion to vacate is untimely, precluding federal review absent a
demonstration of equitable tolling.
Equitable tolling requires both extraordinary circumstances and due diligence. Diaz v. Sec’y,
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, 130 S. Ct. 2549, 2562 (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 allege or demonstrate either that he diligently pursued his rights or that
some extraordinary circumstance prevented him from timely filing his motion to vacate. Petitioner
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does not argue entitlement to equitable tolling to extend the limitation period in his case.
Notwithstanding, the same failure to demonstrate the due diligence required by § 2255(f)(4) prevents
Petitioner from availing himself of the benefits of equitable tolling. See Diaz v. Sec’y Dep’t of Corr.,
362 F.3d 698, 702 (11th Cir. 2004) (equitable tolling requires both extraordinary circumstances and
due diligence). For the reasons indicated above, the alternative commencement dates provided by
§ 2255(f)(2) and § 2255(f)(4) or by application of equitable tolling do not apply in Petitioner’s case.
Consequently, the timeliness of Petitioner’s § 2255 motion is calculated from September 30, 2010,
the date that his conviction became final. See 28 U.S.C. § 2255(f)(1). Petitioner’s motion, filed on
October 26, 2012, is untimely, precluding federal review.
II.

Actual Innocence
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). 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). Petitioner neither alleges nor
presents evidence establishing that he is factually innocent of the charges to which he pleaded guilty
in his criminal case.7 Accordingly, Petitioner cannot satisfy the actual innocence exception to lift
the procedural bar caused by his failure to timely file his motion to vacate.
III.

Motion to Amend
Petitioner in his motion to amend (CV Dkt. 9)8 seeks to add an additional ground for relief
7

In his motion to vacate Petitioner does not seek to have his convictions overturned. Rather, he “seeks a
remedy of specific performance” (i.e., resentencing). (CV Dkt. 2, p. 10).
8

Petitioner filed his motion to vacate on October 26, 2012. In his motion to amend Petitioner states that, “Here,
on October 28, 2012, [Petitioner] would like to submit his motion to amend/supplement pursuant to Rule 15(c) . . . his
(continued...)

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alleging ineffective assistance of counsel for failing to object to the Government’s alleged improper
constructive amendment to the indictment. Like his original motion to vacate filed on October 26,
2012, Petitioner’s motion to amend signed two days later on October 28, 2012, clearly falls outside
the limitation period.9 Thus, the amended ground is untimely and barred from federal review unless
the claim relates back to a timely-filed claim in Petitioner’s original Section 2255 motion. See
Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000) (“‘Relation back’ causes an
otherwise untimely claim to be considered by treating it as if it had been filed when the timely claims
were filed.”) (emphasis added). To relate back to a timely § 2255 motion, a subsequently presented
claim must arise from the same conduct and occurrences that formed the basis of the timely asserted
claims. See Fed. R. Civ. Proc. 15(c)(1)(B). Here, even assuming that Petitioner’s amendment relates
back to a ground in his original motion to vacate, he cannot benefit from that relation because
Petitioner’s original motion to vacate is untimely for the reasons discussed, supra. See United States

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(...continued)
previous[ly] filed motion for post-conviction relief pursuant to 28 U.S.C.§ 2255.” (CV Dkt. 9, p. 1). The certificate of
service attached to the motion to amend states that Petitioner sent a copy of the motion to the Government on October
28, 2012. (CV Dkt. 9, p. 3). The mailing envelope attached to the motion to amend shows a date stamp of July 8, 2013.
The motion to amend was received by this court and docketed on July 9, 2013. Petitioner offers no explanation for this
delay or discrepancy. The motion to amend does not bear a date stamp from the prison indicating when the motion was
received by prison officials for mailing.
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Although Petitioner does not argue that the timeliness of the amended claim should be considered separately
from the original motion to vacate, even giving Petitioner the benefit of such an analysis, he cannot obtain federal review
of the amended claim. See Zack v. Tucker, 704 F.3d 917 (11th Cir. 2013). In Zack, the petitioner attempted to resurrect
eight untimely claims by raising a new claim for relief based on a constitutional right newly recognized by the United
States Supreme Court and made retroactively applicable to cases on collateral review. Zack argued that his entire habeas
petition was timely, under § 2244(d)(1)(C), because he filed it within one year after the United States Supreme Court
decided Atkins v. Virginia, 536 U.S. 304 (2002). The Eleventh Circuit held that AEDPA’s statute of limitations “applies
on a claim-by-claim basis in a multiple trigger date case.” Zack, 704 F.3d at 926 (“We see no reason why a habeas
petitioner who allows his judgment to become final should be permitted, by the happenstance of an intervening decision
or the discovery of new evidence, to reopen claims that he could have raised earlier but did not.”). Petitioner’s case is
not a “multiple trigger date” case. Even giving Petitioner the benefit of deeming the amended claim as filed on October
28, 2012 (the date cited in the certificate of service of the motion to amend), the amended claim, apart from the
untimeliness of the claims in the original motion, would still be untimely.

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v. Hames, 431 Fed. App’x 846, 847 (11th Cir. 2011) (“Rule 15 [of the Federal Rules of Civil
Procedure] can be used in cases where a defendant files a timely § 2255 motion and then later files
an amendment or additional motion that relates back to the original § 2255, but would otherwise be
untimely.”) (citing Davenport, 217 F.3d at 1344) (emphasis added).
EVIDENTIARY HEARING
This case warrants no evidentiary hearing because “it plainly appears from the face of the
motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled
to relief.” Broadwater v. United States, 292 F.3d 1302, 1303 (11th Cir. 2003).
Accordingly, Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255 (CV Dkt. 1) is DENIED. Petitioner’s motion to amend (CV Dkt. 9) is DENIED. The
Government’s motion to dismiss (CV Dkt. 8) is GRANTED. The clerk is directed to enter judgment
against Petitioner and close this case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability.
A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court’s denial
of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of
appealability (COA). Id. “A [COA] may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make such a showing,
Petitioner “must demonstrate that reasonable jurists would find the district court's assessment of the
constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to

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deserve encouragement to proceed further."' Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Petitioner has not made the requisite
showing in these circumstances. Finally, because Petitioner is not entitled to a certificate of
appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED in chambers this

~..,..day oL~, 2013.

JA

States District Judge

Copies to:
Petitioner, prose
Counsel of record

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