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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 1:03-cr-52-MP-GRJ

EARL JEFFERY BARBER,

_____________________________/

REPORT AND RECOMMENDATION

This case is before the Court on Doc. 105, Defendant’s motion to vacate, set

aside, or correct sentence pursuant to 28 U.S.C. § 2255. Based upon a review of the

motion, Defendant’s exhibits, and the record of the prior proceedings, it plainly appears

that Defendant is not entitled to relief because the motion is time-barred under 28

U.S.C. § 2255(f). Accordingly, the undersigned concludes that the Government should

not be required to file a response and recommends that the motion be dismissed. See

Rule 4, Rules Governing Section 2255 Proceedings. 

Background

A jury convicted Defendant of one count of being a felon in possession of

firearms in violation of 18 U.S.C §§ 922(g)(1) and 924(e)(1), and one count of receiving,

possessing, and concealing stolen firearms in violation of 18 U.S.C §§ 922(j) and

924(a)(2). The Court sentenced Defendant to concurrent sentences of 327 months

(Count 1) and 120 months (Count 2). Judgment was entered on June 8, 2004. 

Defendant appealed on the grounds that the Court erred in denying a motion to

suppress a photographic lineup and in applying an obstruction of justice enhancement

to his sentence. Defendant also argued, for the first time on appeal, that the Court

violated his Sixth Amendment rights by applying the obstruction of justice enhancement
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based on facts that were neither charged in the indictment nor proven to a jury. The

Eleventh Circuit rejected these arguments and affirmed Defendant’s convictions and

sentences on May 9, 2005. Doc. 101. The Supreme Court denied certiorari on

November 14, 2005. Doc. 102.

Defendant placed his motion to vacate in the prison mailing system on October

30, 2012. Doc. 105. Defendant asserts four grounds for relief: (1) 18 U.S.C § 922(g)(1)

is unconstitutional on its face and as applied to Defendant, and his appellate counsel

was ineffective for failing to raise the issue on appeal; (2) the Court lacked jurisdiction

to impose sentence pursuant to the Sentencing Reform Act of 1984, because the Act

and the Comprehensive Crime Control Act of 1984 are unconstitutional, and his trial

and appellate counsel were ineffective for failing to investigate or challenge the

constitutionality of Defendant’s charges; (3) the Government and the USPO relied on

non-Sheppard approved documents to enhance his sentence, and counsel were 1

ineffective for failing to raise this issue; and (4) his offense did not involve any nexus

with interstate commerce, and counsel were ineffective for failing to raise the issue.

One-Year Limitation Period

Section 2255 provides:

(a) A prisoner in custody under sentence of a court established by

Act of Congress claiming the right to be released upon the ground

that the sentence was imposed in violation of the Constitution or

laws of the United States, or that the court was without jurisdiction

to impose such sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to collateral

attack, may move the court which imposed the sentence to vacate,

set aside or correct the sentence.

Sheppard v. United States, 544 U.S. 13 (2005). 1
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28 U.S.C. § 2255(a). “A 1-year period of limitation shall apply to a motion under this

section.” Id. at § 2255(f). The one-year 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. Further, “in the proper case, § 2255’s period of limitations may be equitably tolled.” 

Sandvik v. United States, 177 F.3d 1269, 1271 (11 Cir. 1999). However, equitable th

tolling is an extraordinary remedy that is applied sparingly. A habeas petitioner 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

timely filing.” Holland v. Florida ___ U.S. ___, 130 S.Ct. 2549, 2562 (2010) (§ 2254

case) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807 (2005)

(emphasis deleted)). The petitioner bears the burden of establishing entitlement to

extraordinary remedy of equitable tolling. Wade v. Battle, 379 F.3d 1254, 1264-65

(11th Cir.2004) (§ 2254 case).
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Discussion

The instant motion to vacate was filed almost seven years after the conclusion of

direct review, and Defendant concedes that it is untimely. Doc. 105 at 13. Defendant

contends that he is entitled to equitable tolling of the limitations period because his

appellate counsel, Robert Harper, told him “within days of the Eleventh Circuit denying

my [a]ppeal,” that he had no grounds for collaterally attacking his convictions and

sentence under § 2255. Defendant contends that Mr. Harper “provided affirmative

misadvice” regarding his options for habeas corpus review. Defendant avers that he

recently learned from a fellow inmate that the Eleventh Circuit had removed Mr. Harper

from that inmate’s case and appointed replacement counsel. Id. at 14. 

In arguing for the application of equitable tolling, Defendant focuses on counsel’s

advice regarding the potential merits of a collateral attack. Defendant does not,

however, allege any facts suggesting that he acted diligently to pursue his collateral

claims. “The diligence required for equitable tolling purposes is ‘reasonable diligence,’ 

not ‘maximum feasible diligence.’” Holland, 130 S.Ct. at 2565 (internal quotations and

citations omitted); San Martin v. McNeil, 633 F.3d 1257, 1267 (11 Cir. 2011). In this th

case, the allegations of Defendant’s motion do not reflect the exercise of any diligence

between the affirmance of his conviction and the filing of the instant motion seven years

later. C.f., Holland, 130 S.Ct. at 2565 (rejecting district court’s reliance on lack of

diligence in denying equitable tolling where petitioner wrote numerous letters to

attorney, contacted state courts to have counsel removed from case, and prepared and

promptly filed a habeas petition immediately upon learning that the limitations period

had expired). The failure to exercise any diligence in mounting a collateral attack on
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his conviction for seven years precludes the application of an equitable remedy. 

Chavez v. Secretary Florida Dept. of Corrections, 647 F.3d 1057, 1072 -73 (11 Cir. th

2011) (§ 2254 case) (delay of 203 days after conclusion of state proceedings before

seeking relief in federal court did not amount to diligence meriting equitable tolling)

(citing Pace, 544 U.S. at 419) (“not only did petitioner sit on his rights for years before

he filed his [state post-conviction] petition, but he also sat on them for five more months

after his [state post-conviction] proceedings became final before deciding to seek relief

in federal court”).

The instant motion also fails to establish the existence of extraordinary

circumstances meriting equitable tolling. The Eleventh Circuit has explained that “[a]s

for the ‘extraordinary circumstance’ prong, like the Supreme Court's articulation in

Holland, we too have required a defendant to show a causal connection between the

alleged extraordinary circumstances and the late filing of the petition. San Martin, 633

F.3d at 1267 (citing Lawrence v. Florida, 421 F.3d 1221, 1226–27 (11th Cir.2005)). In

this case, the “extraordinary circumstance” relied on by Defendant is counsel’s advice

regarding the potential merits of a collateral attack, rendered immediately after his

conviction was affirmed. 

Initially, assuming Mr. Harper did advise Defendant that he had no grounds for a

collateral attack, the allegations of the motion do not establish that such advice was

erroneous. Collateral review is not a substitute for direct appeal, and therefore the

grounds for collateral attack on final judgments pursuant to § 2255 are extremely

limited. “Relief 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
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direct appeal and would, if condoned, result in a complete miscarriage of justice.’” Lynn

v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (emphasis added) (citations

omitted). To the extent that Defendant seeks relief on the four grounds raised in the

motion independent of any claim of ineffective assistance of counsel, such grounds

could have been raised on direct appeal and are not proper grounds for collateral

attack. 

Second, Defendant has alleged no causal connection between counsel’s opinion

on the merits of a collateral attack and Defendant’s subsequent seven-year delay in

filing the motion. See San Martin, 633 F.3d at 1267. It is not “extraordinary” for an

attorney to advise a client that in his view there are not meritorious grounds for

collateral attack. This is not a case where Defendant expected Mr. Harper to take

further action to seek collateral relief, and inaction on counsel’s part resulted in an

untimely filing. See Chavez, 647 F.3d at 1071. Even in cases where the alleged

“extraordinary circumstance” is an attorney’s inaction, such inaction ordinarily must

amount to serious attorney misconduct to warrant equitable tolling. Id. (“None of the

three allegations in the habeas petition about what [counsel] did and failed to do comes

close to the serious attorney misconduct that was present in Holland.”). The advice that

Mr. Harper gave Defendant in this case – even if it was debatable – did not stand in

Defendant’s way and prevent him from filing a motion to vacate for seven years. See

Holland, 130 S.Ct. at 2562 .

In sum, the allegations of the motion to vacate do not establish Defendant’s

entitlement to the extraordinary remedy of equitable tolling, under either of the Holland

prongs. 
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Certificate of Appealability 

Section 2255 Rule 11(a) provides that “[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant,” and if a

certificate is issued “the court must state the specific issue or issues that satisfy the

showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be

filed, even if the court issues a certificate of appealability. Rule 11(b), Rules Governing

Section 2255 Cases.

The undersigned finds no substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).

Therefore, the undersigned recommends that the district court deny a certificate of

appealability in its final order.

Rule 11(a) also provides: “Before entering the final order, the court may direct

the parties to submit arguments on whether a certificate should issue.” Thus, if there is

an objection to this recommendation by either party, that party may bring this argument

to the attention of the district judge in the objections permitted to this report and

recommendation.

In light of the foregoing, it is respectfully RECOMMENDED that the motion to

vacate, Doc. 105, be DISMISSED AS UNTIMELY, and that a COA be DENIED.

IN CHAMBERS this 7 day of February 2013. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge
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NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written

objections to the proposed findings and recommendations within 14 days after

being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 14 days after being served with

a copy thereof. Failure to file specific objections limits the scope of review of

proposed factual findings and recommendations.