Stringer v. USA

Filing 28

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 2 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by David Stringer, Jr. It is recommended that the above-styled motion for relief under 28 U.S.C. § 2255 be denied and that this case be dismissed with prejudice. It is further recommended that a certificate of appealability be denied. Signed by Magistrate Judge Don D. Bush on 5/1/2012. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

DAVID STRINGER, JR., #09231-078

§

VS.

§

UNITED STATES OF AMERICA

§

CIVIL ACTION NO. 4:10cv196
Consolidated with 4:10cv450

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Movant David Stringer, Jr., an inmate confined in FCI Petersburg in Petersburg, Virginia,
proceeding pro se, filed this motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. The motion was referred for findings of fact, conclusions of law, and recommendations for
the disposition of the case.
Background
Movant is challenging his conviction for conspiracy to possess with intent to distribute
cocaine and possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 846,
841(a).

On June 14, 2002, after being found guilty, he was sentenced to 360 months of

imprisonment. The Fifth Circuit Court of Appeals affirmed Movant’s conviction on March 13, 2003.
The present petition was filed on April 19, 2010. Movant executed his motion on April 15,
2010. Thus, he could not have placed the motion in the prison mailing system at any time prior to
that date. Accordingly, his motion is deemed filed on April 15, 2010, in accordance with the
“mailbox rule.” See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998). Movant alleged that he
is entitled to relief because his conviction was obtained through an illegal search, the failure to
disclose exculpatory evidence, and insufficient evidence. A Report and Recommendation was filed,
1

recommending that the motion be dismissed as untimely filed. Based on objections from Movant,
the Government was ordered to file a Response. Movant alleged that his motion should not be
dismissed as untimely as it was based on new evidence.
Antiterrorism and Effective Death Penalty Act of 1996
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
was signed into law. A one year statute of limitations was enacted for motions to vacate, set aside
or correct a sentence pursuant to 28 U.S.C. § 2255. In general, a movant for collateral relief has one
year from “the date on which the judgment became final” to file a motion challenging a conviction.
A conviction is final under § 2255 when a defendant’s options for further direct review are
foreclosed. United States v. Gamble, 308 F.3d 536, 537 (5th Cir. 2000); United States v. Thomas,
203 F.3d 350, 352 (5th Cir. 2000).
In the present case, Movant was sentenced on June 14, 2002. The Fifth Circuit Court of
Appeals affirmed his conviction on March 13, 2003. He did not file a writ of certiorari in the United
States Supreme Court. Thus, Movant’s conviction became final ninety days later on June 11, 2003,
the last day on which he could have filed a petition for writ of certiorari in the United States Supreme
Court. See Sup. Ct. R. 13(1) (providing that a petition for writ of certiorari is timely when it is filed
with the clerk of this Court within 90 days after entry of the judgment,” Clay v. United States, 537
U.S. 522, 532, 123 S. Ct. 1072, 1079, 155 L. Ed.2d 88 (2003). Accordingly, Movant’s motion was
due no later than June 11, 2004. Movant filed his § 2255 motion on April 15, 2010 - five years, ten
months, and four days beyond the expiration of the one-year limitation period.
The Supreme Court discussed the issue of whether the AEDPA limitations period may be
equitably tolled. In Lawrence v. Florida, 549 U.S.327, 127 S. Ct. 1079, 166 L. Ed.2d 924(2007),
the Supreme Court, without deciding if equitable tolling is available, stated that to be entitled to
equitable tolling, a petitioner must show “(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstances stood in his way.” Id. at 1085; Johnson v. Quarterman, 483

2

F.3d 278, 286 (5th Cir. 2007). The Fifth Circuit specified that the decision is in accord with its case
law holding that equitable tolling is available only in rare and exceptional circumstances where it
is necessary to “preserve a plaintiff’s claim when strict application of the statute of limitations would
be inequitable.” Id.
As a general rule, equitable tolling has historically been limited to situations where the
movant “has actively pursued [his] judicial remedies by filing a defective proceeding during the
statutory period, or where the [movant] has been induced or tricked by [his] adversary's misconduct
into allowing the filing deadline to pass.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111
S. Ct. 453, 112 L. Ed.2d 435 (1990). Equitable tolling cannot be used to thwart the intent of
Congress in enacting the limitations period. See Davis, 158 F.3d at 811 (noting that “rare and
exceptional circumstances” are required).
In this case, Movant claims that he is entitled to equitable tolling based on new evidence in
his case. Specifically, he alleges that he has only recently discovered that the Denton County
Magistrate Judge who signed the warrant to search his home, Judge Earlean Cobbin Murphy was not
a magistrate judge duly authorized to sign a warrant at the time that she signed his warrant on July
26, 1999. He alleges that because of his lack of funds, his isolation in federal custody, and the lack
of access to legal resources, he was prevented from confirming the rumor that Judge Murphy was
not a judge at the time she signed his warrant. The Government, in its Response, provided evidence
that Judge Murphy was appointed to be an alternate judge for the City of Denton Municipal Court
in July 1996. Moreover, Movant could have discovered this in July, 1999, when Judge Murphy
signed the search warrant. The names of sitting judges for the City of Denton Municipal Court are
public information. Thus, Movant could have ascertained this information in 1999 free of charge.
Consequently, this information is not newly discovered evidence.
In conclusion, Movant has not shown any valid basis upon which to equitably toll the statute
of limitations. He filed his motion 2134 days beyond the limitations period; accordingly, the motion

3

should be dismissed as time-barred.
Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a proceeding under
§ 2255 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(B). Although Movant has not yet filed a notice of appeal, it is respectfully recommended
that this Court, nonetheless, address whether he would be entitled to a certificate of appealability.
See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule
on a certificate of appealability because “the district court that denies a [movant] relief is in the best
position to determine whether the [movant] has made a substantial showing of a denial of a
constitutional right on the issues before the court. Further briefing and argument on the very issues
the court has just ruled on would be repetitious.”).
A certificate of appealability may issue only if a movant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the
requirement associated with a “substantial showing of the denial of a constitutional right” in Slack
v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1603-04, 146 L. Ed.2d 542 (2000). In cases where
a district court rejected constitutional claims on the merits, the movant must demonstrate “that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). When a district court denies
a motion on procedural grounds without reaching the underlying constitutional claim, a COA should
issue when the movant shows, at least, that jurists of reason would find it debatable whether the
motion states a valid claim of the denial of a constitutional right and that jurists of reason would find
it debatable whether the district court was correct in its procedural ruling. Id.
In this case, it is respectfully recommended that reasonable jurists could not debate the denial
of Movant’s § 2255 motion on substantive or procedural grounds, nor find that the issues presented
are adequate to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37,

4

123 S. Ct. 1029, 1039, 154 L. Ed.2d 931 (2003) (citing Slack, 529 U.S. at 484, 120 S. Ct. at 1604).
Accordingly, it is respectfully recommended that the Court find that Movant is not entitled to a
certificate of appealability as to his claims.
Recommendation
It is recommended that the above-styled motion for relief under 28 U.S.C. § 2255 be denied
and that this case be dismissed with prejudice. It is further recommended that a certificate of
appealability be denied.
Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve
and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations
contained in this Report within fourteen days after being served with a copy shall bar that party from
.

de novo review by the district judge of those findings, conclusions and recommendations and, except
on grounds of plain error, from appellate review of unobjected-to factual findings and legal
conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto Ass'n, 79
F.3d 1415, 1430 (5th Cir. 1996) (en banc).
SIGNED this 1st day of May, 2012.
.

____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

5