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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.: 3:98cr49/RV

 3:11cv240/RV/EMT

ERNEST SOLOMON HICKS

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 (docs. 170, 171). The

Government has filed a motion to dismiss or in the alternative a motion for extension of time to file

a response (doc. 179), and Defendant has responded (doc. 181). After a thorough review of the

record, it is the opinion of the undersigned that the motion to dismiss should be granted.

BACKGROUND

Defendant was charged with possession of cocaine base with intent to distribute in violation

of 21 U.S.C. § 841(1)(B)(iii) (doc. 1). He entered a conditional guilty plea pending the result of a

hearing on his motion to suppress (docs. 15, 33, 91). His motion to suppress was denied (docs. 30,

37, 48, 49, 50). After being designated a career offender under § 4B1.1 of the guidelines based on

prior state convictions, he was sentenced to 288 months imprisonment (docs. 40, 41, and 94). The

Eleventh Circuit Court of Appeals affirmed his conviction and sentence per curiam (doc. 100;

United States v. Hicks, 254 F.3d 73 (11th Cir. 2001)). The Supreme Court denied Defendant’s

petition for a writ of certiorari on October 29, 2001. Hicks v. United States, 534 U.S. 1012 (2001).

Defendant timely filed his first § 2255 motion on July 26, 2002 (doc. 102). In that motion,

which was subsequently amended, Defendant argued that his guilty plea was not knowingly and

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voluntarily made, and that both trial and appellate counsel were constitutionally ineffective (docs.

102, 104). One of the claims he raised related to counsel’s failure to advise Defendant he would be

sentenced as a career offender, although Defendant did not challenge the propriety of the career

offender adjustment. The district court denied the motion over Defendant’s objection without a

hearing (docs. 117, 120, 121). Defendant appealed, and his requests for a certificate of appealability

were denied (docs. 123, 124, 129, 145). 

On March 31, 2008, Defendant filed a motion to reduce sentence pursuant to 18 U.S.C.

§ 3582 based on the retroactive guideline amendment number 711 (doc. 147). The district court

denied this motion based on its finding that the amendments in question did not affect Defendant’s

sentencing guidelines range (doc. 155), and its decision that was affirmed on appeal (docs. 156, 166;

United States v. Hicks, 341 Fed. Appx. 542 (11th Cir. 2009)).

On October 15, 2010, Defendant filed a letter request for reduction of sentence based on his

actions in saving the life of a suicidal cellmate (doc. 168). The court denied his request due to a lack

of jurisdiction to grant the requested relief (doc. 169). 

Defendant filed the instant motion on May 9, 2011 (doc. 170). Defendant makes numerous

errors or false statements in his explanation of the procedural background of the case. For instance,

he asserts that he entered a plea of nolo contendere rather than a plea of guilty (id. at 2); that he had

a judge trial (id.); that he did not appeal his conviction or sentence (id. at 3); that he did not file a

petition for certiorari (id.); that he has not filed any other motions, petitions, or applications

concerning the judgement of conviction in this case (id.); and that he did not appeal to a federal

appellate court over the actions taken on any such motions, petitions or applications (id. at 4). 

Defendant separates his claims into two grounds for relief. First, he asserts that his sentence is

unconstitutional because his prior state conviction for “simple possession” was not properly

considered a predicate offense for career offender status under § 4B1.1 of the guidelines. Second,

he claims he is actually innocent of the sentencing factors due to the “new” ruling in Salinas v.

United States, 547 U.S. 188 (2006). The Government argues that his motion is subject to dismissal

as both successive and time-barred.

Case Nos.: 3:98cr49/RV; 3:11cv240/RV/EMT

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ANALYSIS

Second or Successive Motions

If a § 2255 motion is deemed “successive,” this court may consider it only if it complies with

AEDPA’s gatekeeping provision, which provides:

A second or successive motion must be certified as provided in section 2244 by a panel of

the appropriate court of appeals to contain—

(1) newly discovered evidence that, if proven and viewed in light of the evidence as

a whole, would be sufficient to establish by clear and convincing evidence that no

reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review

by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). AEDPA’s restrictions on second or successive motions are meant to forestall

abuse of the writ of habeas corpus. Stewart v. United States, 646 F.3d 856, 859 (11th Cir. 2011)

(citing Felker v. Turpin, 518 U.S. 651, 664 (1996)). This provision bars successive motions raising

habeas claims that could have been raised in earlier motions where there was no legitimate excuse

for failure to do so. Id.. (citing McCleskey v. Zant, 499 U.S. 467, 493–95 (1991)). Defendant in

this case does not appear to have moved for the certification as set forth above, and his case involves

neither newly discovered evidence nor a new rule of constitutional law. However, the court’s

inquiry does not end here. Although the instant motion followed the filing of a § 2255 motion in

2002, it may not be successive, as the phrase “second or successive” does not literally refer to all

habeas applications or motions for post-conviction relief that are filed second or successively in

time. Id. (citing Panetti v. Quarterman, 551 U.S. 930, 943–44 (2007)).1

 A small subset of

unavailable claims that could not have been raised in a prior habeas petition are not held to the literal

meaning of the “term of art” “second or successive.” Stewart, 646 F. 3d at 861; see also, e.g.,

Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir. 2003) (en banc) (finding that Singleton’s petition

1 Panetti addressed a petition for habeas relief under 28 U.S.C. § 2254. Because of the

similarities between the provisions governing second or successive petitions under § 2254 and

second or successive motions under § 2255, precedent interpreting one of these parallel restrictions

is instructive for interpreting its counterpart. See 28 U.S.C. §§ 2244(b)(2), 2255(h); see also

Gonzalez v. Sec'y Dept. of Corr., 366 F.3d 1253, 1288 n.5 & 6 (11th Cir. 2004) (en banc) (Tjoflat,

J., concurring in part, dissenting in part); In re Dean, 341 F.3d 1247, 1249 n.4 (11th Cir. 2003) (per

curiam) (denying application to file a successive § 2255 motion).

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was not successive when it raised a claim that did not arise until he was subject to an involuntary

medication order and his execution date had been scheduled); United States v. Orozco–Ramirez, 211

F.3d 862, 869, 871 (5th Cir. 2000) (“[Orozco–Ramirez’s] claim of ineffective assistance of counsel

during [his] out-of-time appeal . . . could not have been raised in [his] prior proceeding and, thus,

is not ‘second or successive.’ ”); Leal Garcia v. Quarterman, 573 F.3d 214, 222, 224 (5th Cir. 2009)

(a “second” § 2254 petition that was based on a defect that did not arise until after the proceedings

on the previous petition were completed was not successive). 

The Government’s contention that the two grounds raised in the instant motion were raised 

previously on direct appeal and in his previous motions is not supported by the record. Regardless,

the court must next consider whether Defendant’s claims could have been raised in his prior

challenges to his conviction and sentence, or whether they fall within the small subset of unripe

claims that could not have been raised previously. 

As noted above, Defendant identifies two individual grounds for relief, but they are

essentially inseparable. He contends, based on the Supreme Court’s 2006 decision in Salinas, that

his prior state court conviction for possession of a controlled substance should not have been used

as a predicate offense for application of the career offender provision of the guidelines and thus

either (1) his sentence is unconstitutional or (2) he is actually innocent of the sentence. 

In Salinas, a single page, per curiam opinion, the Court reiterated that the definition of a

“controlled substance offense” in § 4B1.2 of the guidelines does not include simple possession

without some intent to manufacture, import, export, distribute or dispense. 547 U.S. at 188. 

Although Salinas had not been decided at the time Defendant filed his first § 2255 motion, the

definition of the term “controlled substance offense” considered by the Salinas court was the same

definition in effect when Defendant filed his motion, and is the same definition that remains in effect

today in § 4B1.2(b) of the guidelines. Thus, the argument Defendant raises in the instant motion

could have been raised previously, even without the benefit of Salinas. Thus, his motion is

successive.

Even if the court were to find that Defendant’s claims did not become ripe until Salinas was

decided in April of 2006, after his first § 2255 motion had been denied, Defendant’s most recent

motion would be subject to dismissal because it is untimely. Title 28 U.S.C. § 2255(f) imposes a

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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’s motion was filed well over a year after the Salinas decision, and

it is thus facially untimely. Again, this does not end the inquiry, as Defendant raises the issue of

“tolling” in his reply (doc. 181 at 4). Although the limitations period set forth in § 2255(f) 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)). The

doctrine of equitable tolling 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)). And, 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)). Here, nothing in Defendant’s memorandum leads the court to

conclude that equitable tolling is warranted. Thus, Defendant’s motion must be dismissed.

Certificate of Appealability

As amended effective December 1, 2009, § 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

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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. § 2255 11(b).

After review of the record, the court finds no substantial showing of the denial of a

constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84, 120 S. Ct. 1595,

1603–04, 146 L. Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation omitted). 

Therefore, it is also recommended that the court deny a certificate of appealability in its final order.

The second sentence of new Rule 11(a) provides: “Before entering the final order, the court

may direct the parties to submit arguments on whether a certificate should issue.” 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.

Accordingly, it is respectfully RECOMMENDED:

1. The Government’s motion to dismiss (doc. 179) be GRANTED.

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

170) be DISMISSED. 

3. No certificate of appealability should issue.

At Pensacola, Florida, this 22nd 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.: 3:98cr49/RV; 3:11cv240/RV/EMT

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