Stokes v. United States of America

Filing 10

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT the Government's 6 MOTION to Dismiss, DISMISS Stokes' 1 Motion to Vacate/Set Aside/Correct Sentence (2255), DENY Stokes in forma pauperis on appeal, and DENY Stoke s a Certificate of Appealability. It is further RECOMMENDED the Court DIRECT the Clerk to enter the appropriate judgment of dismissal and to CLOSE this case. The Court ORDERS any party seeking to object to this Report and Recommendation to file speci fic written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 7/2/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 6/18/2018. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

ERIC STOKES,
Movant,

CIVIL ACTION NO.: 6:17-cv-112

v.

(Crim. Case No.: 6:02-cr-20)

UNITED STATES OF AMERICA,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
More than fifteen years ago, this Court sentenced Movant Eric Jermaine Stokes
(“Stokes”) to 110 months’ imprisonment after he pleaded guilty to being a convicted felon in
possession of a firearm.

Stokes, who is currently incarcerated at the Federal Correctional

Institution-Estill in Estill, South Carolina, has now filed a Motion to Vacate, Set Aside, or
Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 14.) 1 The Government filed a Motion
to Dismiss Stokes’ Petition as untimely, to which Stokes filed Responses in opposition.
(Docs. 20, 21, 23.) For the reasons which follow, I RECOMMEND that the Court GRANT the
Government’s Motion to Dismiss, DISMISS Stokes’ Section 2255 Motion as untimely, DENY
Stokes in forma pauperis status on appeal, DENY Stokes a certificate of appealability, and
DIRECT the Clerk of Court enter the appropriate judgment of dismissal and to CLOSE this
case.

1

The pertinent record documents in this case are filed on the docket of Stokes’ criminal case, United
States v. Stokes, 6:02-cr-20 (S.D. Ga. Sept. 13, 2002), and many are not included in Stokes’ civil docket.
Thus, for ease of reference and consistency, the Court cites to Stokes’ criminal docket in this Order and
Report and Recommendation.

BACKGROUND
On September 13, 2002, a grand jury in this District charged Stokes with possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). (Doc. 1.) Stokes entered into an
agreement with the Government to plead guilty to the one count against him and to waive his
right to appeal and collaterally attack his sentence. (Doc. 11.) In exchange, the Government
agreed not to object to a three-level reduction in Stokes’ offense level for acceptance of
responsibility, to make no recommendation as to his sentence, and to advise the Court of whether
any cooperation Stokes provided qualifies as “substantial assistance.” (Id.) On November 27,
2002, Stokes appeared before the Honorable B. Avant Edenfield and entered a plea of guilty to
the one count against him. (Doc. 10.) Prior to Stokes’ sentencing, the United States Probation
Office prepared a Presentence Investigation Report (“PSI”). The Probation Office recommended
a sentencing range under the United States Sentencing Guidelines of 110-120 months’
imprisonment. (PSI, ¶ 59.) This recommendation included a three-point reduction in Stokes’
offense level due to his acceptance of responsibility. (Id. at ¶¶ 16–18.)
On February 4, 2003, Stokes appeared before Judge Edenfield for a sentencing hearing.
Judge Edenfield sentenced Stokes to the bottom end of his Guidelines range, 110 months’
imprisonment, and entered judgment the next day on that sentence. (Doc. 12.) Stokes did not
file a direct appeal.
DISCUSSION
On August 15, 2017, Stokes filed the instant Section 2255 Motion and supporting brief.
(Docs. 14, 15.) Stokes alleges his attorney, Evelyn S. Hubbard, rendered ineffective assistance
during the plea, sentencing, and appeal phases of his criminal proceedings.
Government moved to dismiss Stokes’ Motion on January 10, 2018.

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(Id.)

The

(Doc. 20.)

The

Government contends that the Court should dismiss Stokes’ Motion as untimely. (Id.) Stokes
filed Responses in opposition to the Government’s Motion to Dismiss. (Docs. 21, 23.)
I.

Whether Stokes Timely Filed his Section 2255 Motion
To determine whether Stokes filed his Section 2255 Motion in a timely manner, the Court

must look to the applicable statute of limitations period. Motions made pursuant to 28 U.S.C. §
2255 are subject to a one-year statute of limitations period.

28 U.S.C. § 2255(f).

This

limitations period runs 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.
Id.
Stokes was sentenced to 110 months’ imprisonment on February 4, 2003, and the Court’s
final judgment was entered on February 5, 2003. (Doc. 12.) Stokes had ten (10) business days,
or until February 20, 2003, to file a notice of appeal. Fed. R. App. P. 4(b)(1)(A)(i) (2002). 2
Because Stokes did not file an appeal, he had until February 20, 2004, to file a timely § 2255
motion. 28 U.S.C. § 2255(f)(1). Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011)

2

The Court applies the version of Rule 4(b)(1)(A) in effect at the time of Stokes’ sentencing. Under that
rule, an appellant had to file an appeal within 10 days of the date of judgment. However, intermediate
weekends and holidays were not counted in that calculation. Thus, in the calculation of Stokes’ time to
file an appeal, the Court has excluded two Saturdays, two Sundays, and President’s Day (Monday,
February 17, 2003). Rule 4(b)(1)(A) was revised in 2009 to provide 14 days for the filing of a notice of
appeal. Under the revised rule, however, weekends and holidays are counted.
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(noting that, when a defendant does not appeal his conviction or sentence, the judgment of
conviction becomes final when the time for seeking that review expires). Stokes did not file his
Section 2255 Motion until August 15, 2017, 3 which was thirteen years, five months, and 26 days
after the expiration of the applicable statute of limitations period. Consequently, Stokes’ Motion
is untimely under Section 2255(f)(1).

Townsend v. Crews, No. 14-24126-CIV, 2014 WL

6979646, at *6 (S.D. Fla. Dec. 9, 2014) (“The law is and always has been that a statute of
limitations creates a definitive deadline; a complaint or petition filed one day late (or six days
late as in the case at bar) is untimely, just as if a year late.”) (quoting Turner v. Singletary, 46 F.
Supp. 2d 1238, 1240 (N.D. Fla. 1999)). Stokes fails to argue that he is entitled to the statute of
limitations periods set forth in 28 U.S.C. §§ 2255(f)(2), (3), or (4). Thus, the Court must now
determine whether Stokes is entitled to equitable tolling of the applicable statute of limitations
period.
II.

Whether Stokes is Entitled to Equitable Tolling
Stokes seems to recognize he does not meet the one-year statute of limitations period, but

he offers no credible reason in his Motion why the applicable statute of limitations does not bar
his claims. In his supporting Brief, he makes conclusory arguments as to why his claims should
not be rejected as untimely. (Doc. 15, pp. 25–27.) He contends that claims raising “fundamental
miscarriage of justice,” “substantial constitutional violation,” “subject matter jurisdiction
challenges,” and an “illegal sentence” are not time-barred. (Id. at pp. 25–26.) He also claims
that the First and Fourteenth Amendments to the United States Constitution require the Court to
hear his claims. (Id. at pp. 26–27.)

3

Curiously, Stokes executed his Motion with the signature date of August 16, 2017. (Doc. 14, p. 9.)
However, it was filed in this Court on the day before. Thus, the Court will use the earlier date as the
filing date.
4

The applicable limitation is not jurisdictional, and, as a consequence, the established oneyear limitation “is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S.
631, 645 (2010). “A movant ‘is entitled to equitable tolling only if he shows (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and
prevented him from timely filing.’” Williams v. United States, 586 F. App’x 576, 576 (11th Cir.
2014) (per curiam) (quoting Holland, 560 U.S. at 649). Equitable tolling is typically applied
sparingly and is available “only in truly extraordinary circumstances.” Johnson v. United States,
340 F.3d 1219, 1226 (11th Cir. 2003).

“The [movant] bears the burden of proving his

entitlement to equitable tolling,” Jones v. United States, 304 F.3d 1035, 1040 (11th Cir. 2002)
(per curiam), “and will not prevail based upon a showing of either extraordinary circumstances
or diligence alone; the [movant] must establish both.” Williams v. Owens, No. CV113-157,
2014 WL 640525, at *3 (S.D. Ga. Feb. 18, 2014) (citing Arthur v. Allen, 452 F.3d 1234, 1252
(11th Cir. 2006)).
There is nothing before the Court indicating that Stokes employed any measures
whatsoever to file a timely Section 2255 Motion. Stokes failed to contact this Court prior to
filing his Motion on August 15, 2017, or to take any course of action to show he was pursuing
his rights—diligently or otherwise.

The Eleventh Circuit Court of Appeals “has defined

‘extraordinary circumstances’ narrowly, and ignorance of the law does not, on its own, satisfy
the constricted ‘extraordinary circumstances’ test.” Jackson v. Astrue, 506 F.3d 1349, 1356
(11th Cir. 2007) (citing Wakefield v. R.R. Ret. Bd., 131 F.3d 967, 970 (11th Cir. 1997)
(“Ignorance of the law usually is not a factor that can warrant equitable tolling.”); Sandvik v.
United States, 177 F.3d 1269, 1272 (11th Cir. 1999) (refusing to equitably toll Antiterrorism and
Effective Death Penalty Act’s statute of limitations on the basis of Sandvik’s attorney’s

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negligence); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (“[T]he principles of
equitable tolling . . . do not extend to what is at best a garden variety claim of excusable
neglect.”).
Stokes waited well over a decade to file his Section 2255 Motion, and he provides no
excuse for his failure to bring his Motion sooner. He does not even attempt to show that he was
pursuing his rights diligently and that some extraordinary circumstance prevented him from
filing his Section 2255 Motion in the more than thirteen years since he was sentenced. His
attempts to dodge the plain text of 28 U.S.C. § 2255(f) with conclusory arguments are
unavailing. Unsurprisingly, Stokes does not provide any supporting case citations or other
authority for his broad contentions that the statute of limitations does not apply to claims of
“fundamental miscarriage of justice,” “substantial constitutional violation,” “subject matter
jurisdiction challenges,” and an “illegal sentence.” The limitations period does apply to such
claims. Stokes’ arguments to the contrary contradict the plain language of Section 2255(f) and
would render the limitations period meaningless. 4 In fact, the Eleventh Circuit has noted the
statute of limitations period is applicable even in those instances in which a movant attacks the
district court’s jurisdiction. Williams v. United States, 383 F. App’x 927, 929 (11th Cir. 2010)
(per curiam) (citing United States v. Ramirez, 501 F.3d 1237, 1239 (11th Cir. 2007)); Belsar v.
Shepard, Civil Action No. 1:15-CV-4147-TWT-JFK, 2016 WL 3675562, at * 2 (N.D. Ga. June
8, 2016) (noting petitioner was incorrect that statute of limitations periods do not apply to
deficient indictment or void sentence claims) (citations omitted); Wilwant v. Stephens, No. 4:13CV-276-A, 2013 WL 3227656, at *2 (N.D. Tex. June 25, 2013) (“[A] federal petitioner cannot

4

The requirement that a Section 2255 movant file his motion within one year from the finality of his
conviction is not without exception. However, those exceptions are provided in 2255(f)(2)–(4). Stokes
does not make any argument, much less a successful argument, that he should be entitled to the later
triggering date of any of those subsections.
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evade the effect of the statute of limitations by the ‘simple expedient’ of arguing that his
conviction or sentence is void.”) (citations omitted).
Consequently, Stokes is not entitled to the equitable tolling of the applicable statute of
limitations period, and his Section 2255 Motion is time barred. Thus, the Court should GRANT
the Government’s Motion to Dismiss and DISMISS Stokes’ Section 2255 Motion.
III.

Leave to Appeal in Forma Pauperis and a Certificate of Appealability
The Court should also deny Stokes leave to appeal in forma pauperis. Though Stokes

has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in
the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of
party proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal
is filed”). An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal
is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. County of Volusia, 189 F.R.D. 687,
691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a
frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim
or argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). An in forma pauperis action is frivolous, and thus
not brought in good faith, if it is “without arguable merit either in law or fact.” Napier v.
Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States, Nos. 407CV085,
403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Additionally, under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order
in a habeas or section 2255 proceeding unless a certificate of appealability is issued.

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A

certificate of appealability may issue only if the applicant makes a substantial showing of a
denial of a constitutional right. The decision to issue a certificate of appealability requires “an
overview of the claims in the habeas petition and a general assessment of their merits.” MillerEl v. Cockrell, 537 U.S. 322, 336 (2003). In order to obtain a certificate of appealability, a
petitioner must show “that jurists of reason could disagree with the district court’s resolution of
his constitutional claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Id. “Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude
either that the district court erred in dismissing the petition or that the petitioner should be
allowed to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v.
Hightower, 215 F.3d 1196, 1199 (11th Cir. 2000). “This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of the claims.” Miller-El, 537 U.S.
at 336.
Based on the above analysis of Stokes’ Motion and applying the Certificate of
Appealability standards set forth above, there are no discernable issues worthy of a certificate of
appeal; therefore, the Court should DENY the issuance of a Certificate of Appealability. If the
Court adopts this recommendation and denies Stokes a Certificate of Appealability, Stokes is
advised that he “may not appeal the denial but may seek a certificate from the court of appeals
under Federal Rule of Appellate Procedure 22.” Rule 11(a), Rules Governing Section 2255
Cases in the United States District Courts. Furthermore, as there are no non-frivolous issues to
raise on appeal, an appeal would not be taken in good faith. Thus, the Court should likewise
DENY Stokes in forma pauperis status on appeal.

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CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT the Government’s
Motion to Dismiss, DISMISS Stokes’ Section 2255 Motion, DENY Stokes in forma pauperis
status on appeal, and DENY Stokes a Certificate of Appealability. I also RECOMMEND the
Court DIRECT the Clerk of Court enter the appropriate judgment of dismissal and to CLOSE
this case.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of

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Court to serve a copy of this Report and Recommendation upon Stokes.
SO ORDERED and REPORTED and RECOMMENDED, this 18th day of June,
2018.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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