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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 3:98cr47/LAC

 3:11cv597/LAC/EMT

JOHNNIE FRANK EMMANUEL 

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s motion to vacate, set aside, or correct

sentence pursuant to 28 U.S.C. § 2255, including a memorandum in support (doc. 231). Rule 4(b)

of the Rules Governing Section 2255 Proceedings provides in part that “[i]f 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 in the district court, the judge shall make an order for its summary

dismissal and cause the movant to be notified.” After a review of the record, it is the opinion of the

undersigned that the motion is untimely and that it should be summarily dismissed.

BACKGROUND and ANALYSIS

Defendant was convicted of conspiracy to possess with intent to distribute cocaine base and

use of a firearm during a drug trafficking crime (doc. 71). On September 21, 1998, he was sentenced

to a term of 300 months imprisonment on count one and a consecutive term of 60 months

imprisonment on count two (id.). He did not appeal. Eight years later, in September of 2006,

Defendant filed a motion to compel specific performance, seeking an order directing the

Government to file a Rule 35(b) motion (doc. 186). The Government responded (doc. 187), and the

district court denied the motion on October 16, 2006 (doc. 188). Defendant filed nothing further

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until more than five years later when he filed the instant motion to vacate, set aside or correct

sentence pursuant to 28 U.S.C. § 2255 (doc. 231). 

Title 28 U.S.C. § 2255(f) imposes a one-year time limitation on the filing of motions under

this section. The one-year period of time 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.

28 U.S.C. §2255(f). Defendant acknowledges that “[a]t first glance, this motion appears untimely”

(doc. 231 at 7). He presents two reasons why his motion should not be time barred. First, he asserts

that equitable tolling should extend the limitation period. Although § 2255’s limitation period may

be equitably tolled, tolling is appropriate only when a movant untimely files “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) (citing Drew v. Dep’t of Corr., 297

F.3d 1278, 1286 (11th Cir. 2002); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999)). 

It only applies in “truly extraordinary circumstances.” Johnson, 340 F.3d at 1226 (citing Jones v.

United States, 304 F.3d 1035, 1039–40 (11th Cir. 2002); Drew, 297 F.3d at 1286). The onus is on

the defendant to show that he is entitled to this extraordinary relief. Johnson, 340 F.3d at 1226. The

court will not relieve a petitioner who has sat upon his rights. United States v. Cicero, 214 F.3d 199,

203 (D.C. Cir. 2000) (citing Coleman v. Johnson, 184 F.3d 398, 402–03 (5th Cir. 1999)). There is

nothing in Defendant’s memorandum beyond his bald assertion that would lead the court to

conclude that equitable tolling for over twelve years is warranted.

Next, Defendant contends that several of his claims are “in the nature of a challenge to

subject-matter jurisdiction” (doc. 231 at 7). Defendant is correct that a challenge to subject matter

Case Nos.: 3:98cr47/LAC; 3:11cv597/LAC/EMT

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jurisdiction may be raised at any time. See, e.g., United States v. Estupinan, 453 F.3d 1336, 1338

(11th Cir. 2006). However, his attempt to characterize his claims as challenges to subject matter

jurisdiction is misguided. He challenges the court’s use of allegedly non-qualifying prior

convictions to sentence him as a career offender (claims one and two), the application of the

adjustment pursuant to § 3B1.1(b) of the guidelines (claim three), the quantity of drugs attributable

to him (claim four), and counsel’s failure to consult with him about the advantages and

disadvantages of filing an appeal (claim five). Such claims are not jurisdictional in nature and do

not permit him to escape the statute of limitations set forth in § 2255(f).

Accordingly, it is respectfully RECOMMENDED:

The motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (doc. 231) 

be summarily DISMISSED as untimely. 

At Pensacola, Florida, this 16th day of December, 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy hereof. Any different deadline that may appear on the

electronic docket is for the court’s internal use only, and does not control. A copy of any

objections shall be served upon any other parties. Failure to object may limit the scope of

appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

Case Nos.: 3:98cr47/LAC; 3:11cv597/LAC/EMT

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